The opinion of the court was delivered by: Reagan, District Judge
Denying Summary Judgment as to Forrest Lee (Doc.288)
On October 3, 2008, Plaintiff Forrest Lee, Sr., ("Lee") joined the lawsuit filed in this Court against his former employer, Casino Queen, Inc. (Fourth Amended Complaint). Lee'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 June 1993 through September 7, 2006.*fn1 Specifically, Lee's complaint asserts two counts (Counts 129 and 142) against the Casino Queen: (1) discrimination in employment based upon race in the form of adverse employment actions, in violation of Title VII and Section 1981, and (2) racially hostile work environment. Now before the Court is the Casino Queen's summary judgment motion and memorandum, filed September 10, 2010 (Doc. 288), which is fully briefed and ready for disposition.
Lee was employed by the Casino Queen from June 1993 to September 2006. He began his employment as a kitchen worker but transferred to the Security Department in October 1993. The stated reason for Lee's termination was job abandonment arising from his failure to call into work and not showing up for his shift after August 31, 2006, in violation of the Casino Queen's stated policies. Lee claims to have overslept and missed his shift. He states that he believed he was automatically terminated because of his "no call/no show." Lee acknowledges that he received a letter six days later, dated September 5, 2006, stating that if he did not contact the Casino Queen, his job would be terminated. Lee has admitted that he knew this letter meant he had not yet lost his job, but he did not contact the Casino Queen after receipt of the letter.
Lee alleges that the Casino Queen terminated his employment in violation of Title VII and § 1981. He further alleges that prior to his termination, he was subjected to racial discrimination in the form of a shift change and various disciplinary write-ups. Lee also claims that during his employment with the Casino Queen, he was subjected to a racially-hostile work environment.
The Casino Queen contends that there was no discriminatory basis for Lee's termination. It claims that Lee was terminated solely because of job abandonment after his no call/no show. The Casino Queen further contends that Lee was not subjected to racial discrimination during the term of his employment, nor was he subjected to a racially-hostile work environment. It argues that Lee has failed to identify any racially- based allegation of harassment directed at him. The Casino Queen also insists, and Lee admits, that Lee made no complaints of racial discrimination to the Casino Queen's Human Resources Department, though he admits being familiar with the Casino Queen's Guaranteed Fair Treatment process. On these grounds, the Casino Queen asserts that Lee has not presented evidence of discrimination or a racially-hostile work environment.
III. Legal Standard Governing Summary Judgment Motions
Under Federal Rule of Civil Procedure 56, summary judgment is appropriate where "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); Breneisen v. Motorola, Inc., 512 F.3d 972 (7th Cir. 2008) (citing Celotex Corp. V. Catrett, 477 U.S. 317, 322-23 (1986), and Krieg v. Seybold, 481 F.3d 512, 516 (7th Cir. 2007)). Accord Levy v. Minnesota Life Ins. Co., 517 F.3d 519 (7th Cir. 2008).
In ruling on a summary judgment motion, this Court must view the evidence and all inferences reasonably drawn from the evidence in the light most favorable to the non-moving party. TAS Distributing Co., Inc. v. Cummins Engine Co., 491 F.3d 625, 630 (7th Cir. 2007); Reynolds v. Jamison, 488 F.3d 756, 764 (7th Cir. 2007).
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 Sch. Dist., 293 F.3d 989, 996 (7th Cir. 2002). Rather, to successfully oppose summary judgment, the non-movant must present definite, competent evidence in rebuttal. Vukadinovich v. Board of Sch. Trs. of N. Newton Sch. Corp., 278 F.3d 693, 699 (7th Cir. 2002). Nonetheless, a non-moving party may submit excerpts of his own deposition as "affirmative evidence to defeat summary judgment," Williams v. Seniff, 342 F.3d 774, 785 (7th Cir. 2003), and a plaintiff may present an affidavit relating facts of which he has personal knowledge to support a discrimination claim. Volovsek v. Wisc. Dep't of Agriculture, Trade and Consumer Protection, 344 F.3d 680, 690 (7th Cir. 2003).
Lee acknowledges that he has not filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") and has not received a Right to Sue Letter. He claims that his "cause of action is timely filed pursuant to the single-filing doctrine." Of the approximately 18 named Plaintiffs in this action who have filed Charges of Discrimination with the EEOC, 14 filed charges on June 15, 2006, which is the earliest date of filing (Doc. 54). Accordingly, for Lee to satisfy the elements of the single-filing doctrine, he must claim an act which contributed to the claim that occurred within the 300--day period between August 19, 2005, and June 15, 2006.
Acts contributing to the claim that occurred outside of the 300-day period may also be actionable under United States Supreme Court precedent in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002). There, the Court held,"Provided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability." 536 U.S. at 117, 120-21. As a result, Lee 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)). The third theory - which is sometimes referred to as a "serial violation" or "pattern of ongoing discrimination" - may be applicable to this case. See id. (citations omitted). The Court concludes, on the current record, that Lee's claims of discrimination and hostile work environment may be considered under the continuing violation theory.
Lee's claims brought pursuant to 42 U.S.C. § 1981 are subject to a four-year statute of limitations. Jones v. RR. Donnelley & Sons Co., 541 U.S. 369, 381-82 (2004); Dandy v. United Parcel Serv., Inc., 388 F.3d 263, 269 (7th Cir. 2004). Although Lee's claims were added in Plaintiffs' Fourth Amended Complaint on October 3, 2008, the Court has determined that all claims herein relate back to the original complaint. See, e.g., Doc. 444. Therefore, Lee's §1981 claims regarding ...