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December 1, 2010


The opinion of the court was delivered by: Michael J. Reagan United States District Judge

MEMORANDUM AND ORDER (Denying Doc. 134 Defendant Casino Queen's motion for summary judgment as to Plaintiff LaRonn Arterbridge) REAGAN, District Judge:

I. Introduction

On September 4, 2007, LaRonn Arterbridge ("Arterbridge") filed this action against his employer, Casino Queen, Inc. ("Casino Queen"). Arterbridge'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 him because of his race, African-American, during his employment at the Casino Queen, from February 3, 2001, through the present. This matter now proceeds on Plaintiffs' Fifth Amended Complaint in which Arterbridge asserts two counts against the Casino Queen:

(1) that he was subjected to unlawful racial discrimination, harassment and hostile work environment in violation of Title VII (Count 3) and (2) that he was deprived of his right to the enjoyment of all benefits, privileges, terms and conditions of his employment contract "as are enjoyed by white citizens," in violation of § 1981 (Count 59).

Now before the Court is the Casino Queen's motion for summary judgment or, in the alternative, motion to sever, filed July 2, 2010 (Doc. 134). The motion is fully briefed and ready for disposition.

II. Legal Standard Governing Summary Judgment Motions

Summary judgment is appropriate where the pleadings, discovery materials, and any affidavits show that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Turner v. The Saloon, Ltd., 595 F.3d 679, 683 (7th Cir. 2010); Durable Mfg. Co. v. U.S. Department of Labor, 578 F.3d 497, 501 (7th Cir. 2009) (citing FED.R.CIV.P.56(c)). Accord Breneisen v. Motorola, Inc., 512 F.3d 972 (7th Cir. 2008) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)).

In ruling on a summary judgment motion, the district court must construe all facts in the light most favorable to, draw all legitimate inferences in favor of, and resolve all doubts in favor of the non-moving party. National Athletic Sportswear, Inc. v. Westfield Ins. Co., 528 F.3d 508, 512 (7th Cir. 2008). Accord Reget v. City of La Crosse, 595 F.3d 691, 695 (7th Cir. 2010); TAS Distributing Co., Inc. v. Cummins Engine Co., Inc., 491 F.3d 625, 630 (7th Cir. 2007).

When the non-moving party bears the burden of proof, he must demonstrate the existence of a genuine fact issue to defeat summary judgment. Reget, 595 F.3d at 695. Stated another way, to survive summary judgment, the non-movant must provide evidence on which the jury or court could find in his favor. See Maclin v. SBC Ameritech, 520 F.3d 781, 786 (7th Cir. 2008).

III. Analysis

Arterbridge is an African-American male who began his employment with the Casino Queen in 2001 as a wheelchair pusher. He was promoted to barback in July 2001. Laid off in February 2003, Arterbridge was re-hired approximately two months later as a wheelchair pusher. In June 2003, he became a barback again, and, in February 2008, he was promoted to bartender. Arterbridge is still employed with the Casino Queen and is a member of Union Local #74.

Arterbridge's numerous allegations include the following: (1) he should not have been laid off in February 2003, because he had more seniority than the Casino Queen said he had; (2) he was repeatedly written up for unauthorized or lengthy breaks, for leaving early or for calling off where white employees were not written up for the same offenses; (3) a white supervisor spoke to him in a racially derogatory manner and a white supervisor did not discipline a white employee for racially derogatory remarks reported by Arterbridge; (4) a white employee with less seniority and experience than Arterbridge got a bartender position for which Arterbridge had applied; (5) management did not follow its own rules on bidding for shifts, giving white employees preferential treatment over African-Americans with more seniority; and (6) a white security officer wrote him up but did not submit the write-ups to the Human Resources Department ("HR"), just for "racial hassles."*fn1 In sum, Arterbridge contends that he was discriminated against because of his race and that white employees were systematically treated more favorably than he was.

Arterbridge complained to an African-American secretary in HR about racial discrimination but did not file a written complaint, stating that he feared he would lose his job. He also complained to his union stewards that he felt he had been discriminated against. On June 15, 2006, Arterbridge filed a charge of discrimination with the EEOC.

The Casino Queen submits that Arterbridge's claims are frivolous and groundless. It contends that Arterbridge has failed to produce sufficient evidence to prevent summary judgment.

A. The single-filing rule

The Casino Queen contends that Arterbridge's claims that fall outside the 300-day period between August 19, 2005, and June 15, 2006, are time barred under Title VII. One of the claims Arterbridge raised in his EEOC charge was the failure to promote him from barback to bartender in 2005. Arterbridge Dep. 77:8-11. Neither party provides an exact date on which this event occurred, and the burden is on the Casino Queen to show that the charge addressing the alleged failure to promote did not fall within the 300-day period.

Moreover, under the continuing violation theory, Arterbridge may obtain relief for other time-barred acts by linking them to acts which are within the limitations period. Selan v. Kiley, 969 F.2d 560, 564 (7th Cir. 1992). In Selan, the Seventh Circuit explained that "[f]or purposes of the limitations period, courts treat such a combination as one continuous act that ends within the limitations period." Id. The Court discussed three viable continuing violation theories: (1) cases involving hiring or promotion practices where the employer's decision-making process took place over a period of time so that it was difficult to pinpoint the exact day the "violation" occurred; (2) cases in which the employer has an express and open policy that is alleged to be discriminatory; and (3) cases in which the plaintiff charges that the employer has followed a covert practice of discrimination. Id. at 564-65 (citing Stewart v. CPC International, Inc., 679 F.2d 117 (7th Cir. 1982)). Both the first theory and the third - which is sometimes referred to as a "serial violation" or "pattern of ongoing discrimination" - may be applicable to this case. See id. (citations omitted).

Lastly, as explained by the Supreme Court in Morgan, this Court may also consider acts prior to August 19, 2005,

The existence of past acts and the employee's prior knowledge of their occurrence, however, does not bar employees from filing charges about related discrete acts so long as the acts are independently discriminatory and charges addressing those acts are themselves timely filed. Nor does the statute bar an employee from using the prior acts as background evidence in support of a timely claim. National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002).

The Court concludes, on the current record, that Arterbridge's claim of failure to promote is timely and that other acts of discrimination may be considered under the continuing violation theory or may, at a ...

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