The opinion of the court was delivered by: Reagan, District Judge
(Denying Doc. 132 Defendant Casino Queen's motion for summary judgment as to Plaintiff Chanel Jordan)
On September 4, 2007, Chanel Jordan ("Jordan") filed this action against her former employer, Casino Queen, Inc. ("Casino Queen"). Jordan's complaint is brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII") and 42 U.S.C. § 1981, and alleges that the Casino Queen discriminated against her because of her race, African American, throughout her entire employment at the Casino Queen, from approximately November 2001 through January 2007.*fn1 Specifically, Jordan's complaint asserts two counts against the Casino Queen: (1) that she was subjected to unlawful racial discrimination, harassment and hostile work environment in violation of Title VII and (2) that she was deprived of her right to the enjoyment of all benefits, privileges, terms and conditions of her employment contract "as are enjoyed by white citizens," in violation of § 1981.
Now before the Court is the Casino Queen's motion for summary judgment or, in the alternative, motion to sever, submitted July 2, 2010 (Doc. 132), which is fully briefed and ready for disposition.
II. Legal Standard Governing Summary Judgment Motions
Summary judgment is proper if the pleadings, depositions, interrogatory answers, admissions and affidavits reveal that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Vukadinovich v. Board of School Trustees of North Newton School Corp., 278 F.3d 693, 698 (7th Cir. 2002). The Court is to view the record "in the light most favorable to the non-moving party." Dyrek v. Garvey, 334 F.3d 590 (7th Cir 2003) (citing Fed. R. Civ. P. 56(c)).
The mere existence of an alleged factual dispute is not sufficient to defeat a summary judgment motion. Anderson v. Liberty Lobby, 477 U.S. 242, 247 (1986); Salvadori v. Franklin School District, 293F.3d 989, 996 (7th Cir. 2002). Rather, to successfully oppose summary judgment, the non-movant must present definite, competent evidence in rebuttal. Salvadori, 293 F.3d at 996 (citing Vukadinovich, 278 F.3d at 699).
Jordan is an African-American female who was employed as a cocktail waitress in the Food and Beverage Department of the Casino Queen from December 2001 to January 7, 2007. Doc. 132-1, Jordan Deposition, 14:5-10. Jordan spent the entirety of her full-time employment in the Casino Queen's Food and Beverage Department.*fn2 Id. 14:11-13. The stated reason for her suspension and subsequent termination was "four absences in a four week period and calling off in a pattern." Doc. 329; see also Doc. 132-4, Event Report. Jordan claims that these absences were the result of her one- year-old son's asthma. Id. 25:11-19. Jordan stated that a white cocktail waitress, Amanda Serrano ("Serrano"), called off in a pattern because she had to tend to a sick child, but she was rehired following a grievance hearing. Id. 29:23-30:12. Additionally, Jordan testified that other white waitresses - Bobbie Raford ("Raford") and Yolanda Moore ("Moore") - called off in a pattern and were not fired. Id. 26:21- 29:6. She also testified that Nicole Cordevant, another white waitress, "would make her money and leave" without consequence. Id. 29:7-12.
Jordan also alleges that other incidents occurred during her tenure which were racially-motivated, including several suspensions and reprimands. She claims that she was written up for walking though the kitchen, but the white waitresses, Raford and Cordevant, were not written up for walking through there. Id. 48:8-13. Also, unlike white waitresses, she was written up for unauthorized and extended breaks. Id. pp. 56-60. Jordan alleges that she was written up for not signing out at the end of her shift, but "management" signed out for white waitresses, including Moore, Wendy Kay ("Kay")*fn3 and Debbie Donovan ("Donovan"). Id. 97:5-98:5. In sum, Jordan contends that white employees were systematically treated more favorably than African-American employees.
The Casino Queen counters that Jordan has failed to produce sufficient evidence to establish a genuine issue of material fact. The Casino Queen contends that Jordan's termination was lawful because she had received 16 verbal warnings, 29 written warnings and was suspended 19 times for violating company policy.
A. § 1981 Claims - Four year statute of limitations
The Casino Queen submits that any claims regarding discriminatory acts that took place more than four years prior to the initial date of the filing of those claims are barred under 42 U.S.C. § 1981. As a result, according to the Casino Queen, all of Jordan's claims for alleged adverse employment actions that occurred prior to July 3, 2004 (four years prior to the filing of the third amended complaint), are barred, including Jordan's alleged suspension.
To borrow a phrase from the comedic duo Bud Abbott and Lou Costello, in this admittedly unwieldy case, it is difficult to know "who's on first." Jordan was one of the original 20 Plaintiffs who filed their complaint on September 4, 2007; she was not added in the July 3, 2008 Third Amended Complaint. The relevant time period for her § 1981 claims begins on September 4, 2003.
Furthermore, irrespective of the relevant statute of limitations, hostile work environment claims that occurred prior to the four-year statute of limitations period are actionable so long as at least one act occurred within the statutory period. National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 105 (2002); Turner v. The Saloon, Ltd., 595 F.3d 679, 684-85 (7th Cir. 2010) (district court erred in refusing to consider whether conduct taken as a whole create actionable hostile work environment); Pruitt v. City of Chicago, Illinois, 472 F.3d 925, 927 (7th Cir. 2006); Guzman v. Northern Illinois Gas Co., 2009 WL 3762202, at *3 (N.D. Ill. Nov. 6, 2009) (citing cases applying Morgan to §§ 1981, 1983 claims). Because both her suspension and her termination occurred during the limitations period, claims by Jordan that occurred prior to the limitations period are not barred.
B. The Single-Filing Rule
The Casino Queen alleges that Jordan's claims must be dismissed as time-barred because she failed to file timely charges with the EEOC encompassing the acts of which she complains. The Casino Queen further contends that Jordan fails to allege any facts that satisfy the requirements of the single-filing rule. Jordan responds that she has more than ...