The opinion of the court was delivered by: Elaine E. Bucklo United States District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Lord Osunfarian Xodus' ("plaintiff") complaint alleges a cause of action under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 § U.S.C.2000e et seq., against The Wackenhut Corporation ("defendant"). The sole count of the complaint alleges that defendant discriminated against plaintiff when it denied him a security guard position because he would not cut his dreadlocks in compliance with defendant's grooming policy. Plaintiff alleges that he is a Rastafarian/Hebrew Israelite and that his religious beliefs prohibit him from cutting his hair.
Defendant moves for summary judgment, contending that plaintiff never mentioned religion during the interview and that he was not hired for a non-discriminatory reason -- he refused to follow the company's grooming policy. In the alternative, defendant moves for summary judgment on damages issues, arguing that plaintiff failed to mitigate his damages and that plaintiff is not entitled to punitive damages. Plaintiff moves for partial summary judgment on the issue of whether defendant can show that accommodating plaintiff's religious beliefs would pose an "undue burden." For the following reasons, defendant's motion for summary judgment is granted as to the damages issues. All other motions for summary judgment are denied.*fn1
Summary judgment is proper when the pleadings and discovery, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. FED. R. CIV. P. 56(c); see also Faas v. Sears, Roebuck & Co., 532 F.3d 633, 640 (7th Cir. 2008). The movant initially bears the burden of "identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
Once the movant has met this burden, the non-movant "may not rest upon the mere allegations or denials of the adverse party's pleading," but rather "must set forth specific facts showing that there is a genuine issue for trial." FED.R.CIV.P. 56(e). A plaintiff may defeat summary judgment with his own deposition testimony where there is a genuine issue of fact as to plaintiff's subjective experience. See Paz v. Wauconda Healthcare & Rehabilitation Centre, LLC, 464 F.3d 659, 664-65 (7th Cir.2006) (finding plaintiff's deposition was filled with genuine issues of fact based on personal knowledge); see also Walker v. Shansky, 28 F.3d 666, 672 (7th Cir. 1994)(finding plaintiff's own non-expert testimony expressing medical opinions on causation was not admissible evidence, while allowing testimony as to her subjective experience).
I construe all facts in the light most favorable to the non-moving party and draw all reasonable and justifiable inferences in favor of that party. Hemsworth v. Quotesmith.com, Inc., 476 F.3d 487, 490 (7th Cir. 2007).
The facts in this case are clearly in dispute. Plaintiff alleges that during his job interview for a security position with defendant, his interviewer asked if plaintiff would cut his hair to comply with the company's grooming policy. Plaintiff contends that he told the interviewer he could not cut his hair because of his religious beliefs and that the interview ended abruptly, with no job offer. Plaintiff also contends that defendant's failure to hire him aggravated a pre-existing medical condition, which required hospitalization for periods of time and limited his ability to work. Plaintiff also maintains the interviewer mentioned that plaintiff could work dock security without having to cut his hair, but that none of those jobs were available.
Defendant denies these allegations, arguing instead that plaintiff never mentioned his religion or that the reason he refused to cut his hair was based on religion. Rather, defendant contends that plaintiff merely stated that he refused to cut his hair because of his "beliefs" and left the interview when he was told he could not be hired if he would not comply with the grooming policy. Defendant maintains that the interviewer never discussed any job alternatives (e.g., the dock security position) and argues that plaintiff failed to mitigate his damages by refusing comparable job offers after he was denied employment with defendant. Defendant also denies responsibility for plaintiff's alleged medical condition. The parties move for summary judgment on various claims and defenses.*fn2
Defendant first moves for summary judgment on an unpled reasonable accommodation claim. Generally, a Title VII plaintiff cannot sue on a claim that was not included in the related EEOC charge. See Teal v. Potter, 559 F.3d 687, 691 (7th Cir. 2009). Here, not only are there no allegations concerning failure to reasonably accommodate in the EEOC charge, this claim is not even pled in the complaint. Throughout their briefs, the parties appear to confuse the distinct claim of failure to accommodate (not pled) with plaintiff's claim for religious discrimination based on disparate treatment (Count I). These claims involve different legal theories and analyses. See Novitsky v. Am. Consulting Engineers, L.L.C., 196 F.3d 699, 701 (7th Cir. 1999)(explaining "the charge...does not hint at a theory of failure to accommodate her religious practices, a claim different in kind from the normal anti-discrimination principle"). Accordingly, this motion is denied as moot.
Defendant next moves for summary judgment on plaintiff's religious discrimination claim. "In order to establish a prima facie case of religious discrimination, a plaintiff must show that the observance or practice conflicting with an employment requirement is religious in nature, that [he] called the religious observance or practice to [his] employer's attention, and that the religious observance or practice was the basis for [his] discharge or other discriminatory treatment." E.E.O.C. v. Ilona of Hungary, Inc., 108 F.3d 1569, 1575 (7th Cir. 1997). "[O]nce the plaintiff has established a prima facie case of discrimination, the burden shifts to the employer to make a reasonable accommodation of the religious practice or to show that any accommodation would result in undue hardship." Id. at 1574. It is clear this claim cannot be resolved on summary judgment.
As noted above, the parties plainly dispute most if not all of the material facts in this case. Plaintiff claims he told defendant that he could not cut his hair because of his religious beliefs and that he further elaborated on this statement by discussing his experience with other companies' grooming standards. Meanwhile, defendant contends plaintiff did not mention religion, stating only that he refused to cut his hair because of his "beliefs" and that he was fired by another security company for failure to comply with its grooming policy. The parties do agree that plaintiff did not specifically identify his religion at the interview, but that type ...