The opinion of the court was delivered by: Reagan, District Judge:
(Denying Doc. 144 the Casino Queen's motion for summary judgment as to Tonya Jackson)
On September 4, 2007, Tonya Jackson ("Jackson") filed suit against her former employer, Casino Queen, Inc. ("Casino Queen"). Jackson'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. The action now proceeds on Plaintiffs' Fifth Amended Complaint (Doc. 325), filed September 17, 2010, in which Jackson alleges that the Casino Queen discriminated against her because of her race, African-American (Count 26), and deprived her of her "right to the enjoyment of all benefits, privileges, terms and conditions of Plaintiff's employment contract 'as is enjoyed by white citizens,' in violation of 42 U.S.C.A. § 1981(b)" (Count 83). Jackson worked for the Casino Queen as a server from June 2000 to February 2006, when her employment was terminated. Fifth Am. Comp., ¶ 110.
Now before the Court is the Casino Queen's motion for summary judgment or, in the alternative, motion to sever (Doc. 144) Jackson's response (Doc. 220), the Casino Queen's reply (Doc. 341) and Jackson's sur-reply (Doc. 352).
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, she 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 her favor. See Maclin v. SBC Ameritech, 520 F.3d 781, 786 (7th Cir. 2008).
The Casino Queen hired Jackson to work in room service in June 2000. Approximately three months later, she began working as a server in the sports bar. The stated reason for her termination was that she was a no-call/no-show for a scheduled shift. Doc. 144-1, Jackson Dep. 18:20-19:8.*fn1 Jackson's charge of discrimination, filed with the Equal Employment Opportunity Commission ("EEOC"), is dated August 12, 2007. Doc. 54-1, p. 28. The charge encompassed allegations of race and sex discrimination between July 3, 2000, and January 31, 2006. Id. On August 27, 2007, the EEOC issued not a right to sue letter but a dismissal and notice of rights, indicating that Jackson's charge was not timely filed. Doc. 54-2, p. 11.*fn2
Jackson testified that she was unfairly written up for calling in late to notify the Casino Queen that she would be unavailable for a shift. She also testified that she was written up for tardiness and suspended even though she was at her work station within the grace period. Additionally, in August and September of 2001, Jackson was suspended for failing to clock in/clock out, which resulted in short pay. Jackson testified that she witnessed numerous instances of discrimination against other African-American employees of the Casino Queen, including discrimination against Shonell McKee, Sheemka Woodard, Janelle Quarles, Tunstell Dent, Reggie Williams, Rafael Owens, Shalimar Carter, Tedra Stracker andValerie Jackson.
According to Jackson, white employees could have three different color tones in their hair or have snow white or platinum-blonde hair without having to remove their hair coloring, but
she was required to remove a "burgundy, reddish color" from her hair. She stated that Rich Garner, the Casino Queen's personnel training manager and guest services manager, told her that her hair color was "unusual," which violated a Casino Queen policy regarding hair color. Garner told her that she had a week to remove the color from her hair. When she stripped the color and re-dyed her hair, the process damaged her hair. She testified that other African-American employees, Shervona and Rana, were required to change their braided hairstyles and brownish-blonde hair color.
Jackson testified that a white customer made a sexually-offensive remark to her and was removed from the boat but allowed to return the following day and comped a room. However, when a customer made a sexually-offensive remark to a white cocktail waitress, Shon, he was permanently banned from the Casino Queen.
Jackson stated that she was not offered a supervisor position and felt as if she was passed over because of racial discrimination. Jackson offers the testimony of Cheryl Childress and Betty Smith, who testified that during Tom Monaghan's administration, the number of African-Americans promoted to the ranks of upper management "dwindled" and that the Casino Queen did not live up to its agreement with the City of East St. Louis to hire 50% of residents "across the board," meaning also 50% of upper management.
In 2003, the Casino Queen fired Jackson for being tardy even though management at the Casino Queen knew that she had jury duty and she had been told that she would be excused when she brought in the paperwork. After a grievance hearing, Jackson was reinstated, but she received no backpay. Jackson testified that when she returned to work, Dominic Gramaglia, the director of the food and beverage department, said, "Guess who's back. How does it feel to get your job back?" Jackson stated that Gramaglia told another employee, Sarah Crain, "Next time, I'm going to do a home run on ...