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DILLARD v. STARCON INTERNATIONAL INC.

October 20, 2004.

JAMES DILLARD, Plaintiff,
v.
STARCON INTERNATIONAL INC., an Illinois corporation, Defendant.



The opinion of the court was delivered by: ARLANDER KEYS, Magistrate Judge

MEMORANDUM OPINION AND ORDER

Currently before the Court is Defendant's Motion to Dismiss Counts II-V of Plaintiff's Amended Complaint, filed pursuant to Fed.R. Civ. P. 12(b)(6). Plaintiff claims that, as an employee for Defendant Starcon International, Inc ("Starcon"), he was subjected to a hostile work environment, discrimination based on his race, retaliation, and retaliatory discharge in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et. seq. (West 2004), and 42 U.S.C. § 1981 (West 2004). For the reasons set forth below, Defendant's Motion is granted in part and denied in part. BACKGROUND FACTS*fn1

Plaintiff, James Dillard, began working for Starcon on April 18, 1996 as a "B Mechanic Apprentice," at the JLM job site in Blue Island, Illinois. By 1998, Plaintiff had been promoted to the position of "A Mechanic Apprentice." Plaintiff passed his plate welder examination and was promoted to "C Plate Welder" in early 1998. From 1998 through 2000, Plaintiff was employed in various positions at various job sites for short periods of time. Beginning in 2000, Plaintiff was sent to the Exxon Mobil job site in Channahon, Illinois. Plaintiff was certified to weld on site after passing a site-specific pipe welding test. Between late 2000 and early 2001, Plaintiff passed another pipefitting and pipe welding course and became a "B Pipe Welder."

  Plaintiff alleges that he was subjected to a racially hostile work environment during his entire two year stint at the Exxon site. In addition to telling racially discriminatory and offensive jokes, employees constantly referred to black workers on the job site as "niggers."

  Additionally, Plaintiff was not offered opportunities to weld, despite the fact that he was fully certified to do so. Plaintiff's white co-workers were offered opportunities to weld while the majority of Plaintiff's responsibilities were allocated to mechanical work. In fact, Plaintiff contends that he was offered only three or four welding jobs during his entire tenure on site despite the fact that he received positive performance evaluations as a "B Welder" on the Exxon job site.

  Plaintiff complained to Human Resources about this offensive treatment. Personnel in the Human Resources Department not only failed to act on his complaints, but also advised Plaintiff that he would be laid off if he continued to complain.

  Plaintiff eventually requested a transfer to an alternate job site in 2002. In July of 2002, Defendant granted Plaintiff's request and transferred him to the Citgo Refinery job site. Again, Plaintiff was classified to work as a "B Welder." Like the Exxon job site, the Citgo site was also a racially hostile environment. Unlike white welders, he was again assigned primarily mechanical maintenance work, though he was permitted to do some welding.

  Employees on the Citgo job site also told jokes using the word "nigger" and referred to black employees as "niggers". However, this time they were not alone — supervisors joined with the employees in making racist and bigoted remarks. In one incident, co-workers told him to "bring his own rope" to the next company party, implying that he would be lynched. Again Plaintiff reported this conduct to Human Resources. Personnel with Human Resources told him for the second time that he would be laid off if he continued to complain. The work environment did not improve.

  In the summer of 2003, Plaintiff worked on a pipe welding job for "a couple of days" prior to realizing he was welding with the incorrect welding rod. After reporting his error, Plaintiff was suspended from the Citgo job site for three days. Shortly thereafter, Plaintiff met with Human Resources and the Citgo project manager to discuss the incident. This was Defendant's first disciplinary action against Plaintiff. They offered him a demotion to a lower welder classification and the pay of an "A Mechanic," an $8.00 hourly decrease. Plaintiff refused to accept the demotion and was terminated on August 15, 2003.

  Plaintiff contends that two other "B Welders", both white, Jim Lefowski and Jim Little, made comparable welding mistakes on the Citgo job site in 2000 and 2001, respectively. Subsequent to their welding mistakes, both white "B Welders" were also removed from the Citgo site, however, unlike Plaintiff, Messrs Lefowski and Little were promoted to foremen at other sites. In addition, each received a $2.00 hourly pay increase.

  PROCEDURAL HISTORY

  Plaintiff filed a charge of employment discrimination with the Equal Employment Opportunity Commission ("EEOC") on August 20, 2003. Although Plaintiff's charge is less than comprehensive, it does specify that he was "subjected to racial harassment in the form of racial remarks." (8/20/03 Charge of Discrimination). The charge also alleges race based discrimination. Id.

  The EEOC issued a Notice of Right to Sue on October 6, 2003. Plaintiff filed his pro se complaint on December 30, 2003, within 90 days of receipt of the Notice of Right to Sue. The Court appointed counsel for Plaintiff on January 15, 2004. Originally assigned to District Judge Castillo, both parties consented to proceed in this Court on March 31, 2004. On June 28, 2004, Plaintiff filed an Amended Complaint alleging five causes of action: 1) hostile work environment under Title VII; 2) race discrimination under Title VII; 3) retaliation under Title VII; 4) retaliatory discharge under Title VII; and 5) race discrimination under Section 1981. Defendant moved to Dismiss Counts II through ...


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