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
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.
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
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 ...