The opinion of the court was delivered by: Harry D. Leinenweber, Judge United States District Court
MEMORANDUM OPINION AND ORDER
Before the Court are two racial harassment suits. One brought by individual Plaintiffs, and the second brought by the Equal Employment Opportunity Commission (the "EEOC") on behalf of a class of Hispanic employees. The cases have been consolidated based on relatedness, and the parties have filed Cross-Motions for Partial Summary Judgment. Defendant Ceisel Masonry moves for judgment on the EEOC's claims for monetary damages on behalf of class members Jose Alvarado, Adrian Posada, German Ortiz, and Alejandro Buenrostro. (The EEOC has stipulated that it will not seek relief on behalf of Rudy Geronimo or Eduardo Mejia.) Plaintiff, in turn, moves to bar Defendant from raising the affirmative defense identified in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). For the reasons stated below, the motions for partial summary judgment are denied.
Ceisel Masonry is a masonry subcontractor with its principal place of business in Northbrook, Illinois. Adalbert "Al" Ceisel ("Ceisel") is the president and sole owner of Ceisel Masonry. Erwin Bernhardt ("Bernhardt") is Ceisel's Secretary-Treasurer, Project Manager, and Estimator. Don Etters ("Etters") worked as Ceisel's Superintendent until he passed away in December 2006 and was replaced by Tom Leakokos ("Leakokos"). The Superintendent supervises the foremen and has authority to hire, fire, lay off, and transfer Ceisel workers. Jeff Hankins ("Hankins") and Steve Szabo ("Szabo") both work as foremen, and Szabo occasionally has filled in as Superintendent when Leakokos was on vacation.
Ceisel foremen are present at the individual job sites to supervise the work of the bricklayers and laborers, make sure the scaffolding is built correctly, and ensure compliance with safety policies. Foremen have authority to issue verbal and written discipline and safety citations, which ultimately could lead to termination of the employee. Foremen may also recommend that a Ceisel worker be hired, fired, or laid off. Plaintiff argues that Ceisel has always followed the recommendations of its foremen to discharge particular workers, but Ceisel denies this fact and denies that foremen have any independent authority to hire, fire, lay off, or transfer workers.
According to the complaint, Al Ceisel, Don Etters, Ceisel foremen, and other employees made numerous derogatory comments about, and directed toward, Hispanic workers. These comments included addressing or discussing Hispanic workers as "wetbacks," "fucking Mexicans," and "chicos." Plaintiffs also complain about racist graffiti found on the port-a-potties at Ceisel job sites, which included swastikas and the phrases "go back to your own country," "spics," "cockroaches," "this is where Mexicans belong" (pointing to the toilet), "wetbacks," and "for a green card, take one" (pointing to toilet paper). Defendant admits that Bernhardt, Szabo, Hankins, and Al Ceisel all have seen racist graffiti in the port-a-potties at Ceisel job sites, and that Ceisel has taken no action to have the graffiti removed. Szabo also has admitted to using the terms "wetback," "fucking Mexican," and "chico," and he says he heard other foremen call Hispanic employees by the same names. Ceisel denies any derogatory remarks made by Don Etters or Al Ceisel. The company further avers that the comments by foreman Szabo were made in a joking manner, as part of a back and forth daily banter between employees. Plaintiffs Domingo Ramirez, Cuauhtemoc Guerrero, and Francisco Algarin filed charges with the EEOC in January, February, and April of 2004, respectively.
Prior to March 2004, Ceisel claims it had a policy against harassment, but it was not written. Ceisel further admits that it had not given its foremen any training or instruction that racial harassment was against company policy, and that it had not informed its workers that they would not be retaliated against if they complained of harassment. An EEOC poster was put up only at the Soldier Field job site. Although the collective bargaining agreements with both the laborers and bricklayers unions contained anti-discrimination provisions, those agreements do not define harassment or specifically mention it. Nor do they state that complaining employees are protected from retaliation.
In response to the filing of EEOC charges, Ceisel Masonry enacted its first written anti-harassment policy in March 2004. Ceisel handed the policy out to its current and new employees and read and explained the policy to its foremen. Ceisel alleges that it discusses and reaffirms its anti-harassment policy at every meeting with the foremen. Ceisel also discussed the claims of harassment with Superintendent Etters, but never interviewed the alleged victims. Even though Szabo admitted in the presence of Ceisel's counsel that he "maybe" or "probably" used the terms "chico," "wetback," and "fucking Mexican," Ceisel Masonry never instructed Szabo that it was inappropriate to say these things. Nor has Ceisel taken any action to discipline or fire Szabo or Etters in response to the EEOC complaints.
Summary judgment is inappropriate where the evidence is sufficient to allow a reasonable jury to return a verdict in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court therefore views the evidence in the light most favorable to the non-moving party and resolves all factual disputes in that party's favor. See Abdullahi v. City of Madison, 423 F.3d 763, 773 (7th Cir., 2005). However, the opposing party must go beyond the allegations and denials of its pleadings and identify specific evidence which demonstrates a genuine issue of material fact. See FED. R. CIV. P. 56(e)(2); Mills v. First Federal Sav. & Loan Ass'n of Belvidere, 83 F.3d 833, 840 (7th Cir., 1996). A factual dispute is only material when it is outcome determinative; if the undisputed facts demonstrate that one party is entitled to relief, summary judgment is still appropriate. See Collins v. American Optometric Ass'n, 693 F.2d 636, 639 (7th Cir., 1982).
A. Failure to File Timely EEOC Charges
Ordinarily, an individual seeking to file suit under Title VII must make a timely charge of discrimination with the EEOC. See 42 U.S.C. § 2000e-5(e); Beckel v. Wal-Mart Associates, Inc., 301 F.3d 621, 622-23 (7th Cir., 2002). Defendant argues that the class members' failure to file timely EEOC charges should bar the EEOC from recovering monetary damages on their behalf. Indeed, there is support for the position that the EEOC's special enforcement authority does not give it the power to expand individual substantive rights. See E.E.O.C. v. Custom Companies, Inc., 2004 WL 765891, at *10 (N.D.Ill., Apr. 7, 2004); E.E.O.C. v. Harvey L. Walner & Associates, 1995 WL 470233, at *4 (N.D.Ill., Aug. 7, 1995).
These holdings have been brought into question, however, and Defendant's argument has been foreclosed by the Seventh Circuit's decision in E.E.O.C. v. Sidley Austin LLP, 437 F.3d 695 (7th Cir., 2006). Relying on E.E.O.C. v. Waffle House, Inc., 534 U.S. 279 (2002), the Seventh Circuit made clear that the EEOC's enforcement authority is not derivative of, or dependent upon, the legal rights of individuals, even when the EEOC primarily seeks compensatory relief on those individuals' behalf. See Sidley, 437 F.3d at 696. Accordingly, the Court squarely held that an individual's failure to file a timely charge of discrimination did not prevent the EEOC from seeking monetary relief on his behalf. See id. at 696. Although Defendant attempts to distinguish Sidley as a case under the ADA, as opposed to Title VII, the EEOC's enforcement power is essentially the same under both statutes, see Waffle House, 534 U.S. at ...