The opinion of the court was delivered by: Stiehl, District Judge
Before the Court is defendants' joint motion for summary judgment (Doc. 55), to which plaintiff has filed a response (Doc. 61).*fn1 Also before the Court is defendants' joint motion to strike (Doc. 65), to which plaintiff has filed a response (Doc. 69). Defendants seek summary judgment pursuant to Federal Rule of Civil Procedure 56.
Plaintiff's underlying claim arises from several alleged acts of racial discrimination spanning from March of 2005 until February of 2006, including the following: (1) using racial stereotypes and name-calling; (2) attacking plaintiff physically based on race; (3) spreading an unsubstantiated and racially suggestive rumor; (4) denying plaintiff short-trip flagging opportunities based on race; (5) denying plaintiff long-haul flagging opportunities based on race.
On November 8, 2007, plaintiff, Paul Dunklin, filed a three-count complaint alleging: (1) de facto demotion by Contempri Homes (Count I); (2) racially hostile work environment by all defendants (Count II); and (3) battery and negligent supervision by all defendants (Count III). In an Order dated September 2, 2008, the Court dismissed plaintiff's claim for de facto demotion (Count I) and plaintiff's claim for battery and negligent supervision against Contempri Homes (Count III). The Court has allowed plaintiff to proceed on his hostile work environment claim (Count II) and on his battery claim against defendant Powell (Count III).
Summary judgment is proper "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A genuine issue of fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether summary judgment is appropriate, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255.
I. COUNT II: Hostile Work Environment
Defendants seek summary judgment on Count II of plaintiff's third amended complaint and argue that plaintiff has failed to establish the requisite elements of a hostile work environment claim. The Court notes that plaintiff has attempted to support his hostile work environment claim with time-barred allegations.*fn2 Before addressing defendants' arguments with respect to the substantive elements of plaintiff's claim, the Court will consider whether, or to what extent, plaintiff's allegations of racial discrimination are time-barred.
A. Statute of Limitations
The Supreme Court has concluded that, in cases involving hostile work environment claims alleged under a continuing violation theory, courts may consider evidence falling outside the statutory time period, so long as an act contributing to that hostile work environment takes place within the statutory time period of 42 U.S.C. § 2000e-5(e)(1). AMTRAK v. Morgan, 536 U.S. 101, 105 (2002). "A court's task is to determine whether the acts about which an employee complains are part of the same actionable hostile work environment practice, and if so, whether any act falls within the statutory time period." Id. at 126.
Plaintiff has alleged at least one act of discrimination that occurred within the statutory time period.*fn3 The Seventh Circuit has stated that plaintiff may obtain relief for an otherwise time-barred act by "linking it with an act that is within the limitations period" such that the linked acts are "related closely enough" to establish a sufficient nexus. Koelsch v. Beltone Elects. Corp., 46 F.3d 705, 707 (7th Cir. 1995).
But the Seventh Circuit does not allow unlimited "reaching back" to otherwise time-barred discrete acts to form a continuing violation theory.*fn4 In determining whether plaintiff's continuing violation claim is actionable, the Court will consider the following factors: (1) whether the acts involve the same subject matter; (2) the frequency with which the acts occur; and (3) the degree of permanence of the alleged acts of discrimination that should trigger an employee's awareness and duty to assert his ...