The opinion of the court was delivered by: Reagan, District Judge
MEMORANDUM AND ORDER (Denying Doc. 145 the Casino Queen's motion for summary judgment
On September 4, 2007, Mildred Lynn ("Lynn") was among the 20 original plaintiffs who brought this action against her employer, Casino Queen, Inc. ("Casino Queen"). Lynn'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, during her employment at the Casino Queen, commencing June 1993 through the present time. Specifically, Lynn's complaint asserts two counts (Counts 31 and 90) against the Casino Queen: (1) discrimination in employment based upon race and racially hostile work environment, in violation of Title VII, and (2) deprivation of her 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. Now before the Court is the Casino Queen's summary judgment motion, filed July 2, 2010 (Doc. 145), which is fully briefed and ready for disposition.
Lynn is an African-American female who has been employed by the Casino Queen as a bartender since June 1993. She is currently employed by the Casino Queen and is a member of Union Local #74.
Lynn alleges that the Casino Queen subjected her to discrimination and a hostile work environment because of her race. Lynn testified that one of Casino Queen's managers, Dan Stumpf, always communicated with her through a Caucasian cocktail waitress or her supervisor rather than speaking directly with her. She stated that the Casino Queen would hand-pick employees to work lucrative special events, such as golf tournaments, always excluding African-American cocktail waitresses and bartenders. Lynn testified that unlike the Caucasian bartenders, she was forced to perform her job without the assistance of another bartender and with less assistance from any of the barbacks. Lynn testified to instances where she and other African-American employees were written up or disciplined for calling off or arriving late to work, while Caucasian employees were not written up or disciplined for similar violations. Lynn stated that even African-American customers were discriminated against, as they were often asked to leave if they were observed not gambling, while white customers were not subjected to this type of harassment.
Lynn further alleges that this racial discrimination has deprived her of right to the enjoyment of all benefits, privileges, terms and conditions of her employment contract. She stated that Caucasian employees hired on the same date as she were given higher seniority. Additionally, she testified that, despite her experience and seniority, she was not asked if she wished to be considered for promotion to a management position.
Lynn was disciplined and suspended for one day without pay in May 2008 for leaving $140.00 in a cash bag at the end of her shift. Lynn contends that she made the deposit of her cash properly and did not see the extra money in her deposit bag. She identified Caucasian employees that she claims have left cash in their registers or other locations without being suspended or disciplined. Lynn grieved the suspension with her union and had a hearing upon which her suspension was affirmed. But Lynn believes that she was singled out in retaliation for filing the instant action.
The Casino Queen contends that Lynn has not been subjected to racial discrimination or a racially hostile work environment and that there was no discriminatory basis for Lynn's suspension. It submits copies of numerous Employee Warning Notices issued to Lynn for violation of various company policies during the four years prior to the filing of this suit. The Casino Queen asserts that Lynn has failed to identify any racial slur or direct comment concerning race used by either a supervisor or co-worker, or any other racially based allegation of harassment directed at her. The Casino Queen also insists, and Lynn admits, that Lynn has never made a complaint of racial discrimination to her union during her employment. On these grounds, the Casino Queen asserts that Lynn 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 district 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). 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). 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).
A. Procedural posture and four-year statute of limitations on § 1981 claims Lynn filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") on June 15, 2006. Accordingly, any of Lynn's claims that fall outside the 300-day period between August 19, 2005, and June 15, 2006, are time barred under Title VII.
However, 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, "[p]rovided 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, Lynn 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--this theory is sometimes referred to as a "pattern of ongoing discrimination" or "serial violation." Id. at 564-65 (citations omitted). Of these three continuing violation theories, the first and third theories may be applicable to this case. The Court concludes, on the record before it, that Lynn's claims of discrimination and hostile work environment may be considered under the continuing violation theory.
As to Lynn's suspension, which occurred after her EEOC filing, the Seventh Circuit has recognized exceptions to the 300-day window for acts which are allegedly committed in retaliation for filing the EEOC charge. In Malhotra v. Cotter & Co., 885 F.2d 1305 (7th Cir. 1989), the Seventh Circuit stated, "a separate administrative charge is not a prerequisite to a suit complaining about retaliation for filing the first charge."885 F.2d at 1312 (superseded on other grounds by statute). See alsoMcKenzie v. Illinois Dep't of Transp., 92 F.3d 473, 482-83 (7th Cir. 1996). Additionally, the requirement that any post-charge claims go through a second EEOC filing procedure would not further the purpose of providing notice to the employer and an opportunity for conciliation. See E.E.O.C. v. Custom Companies, Inc., 2004 WL 765891, at *12 (citing McDonald v. United Air Lines, Inc., 587 F.2d 357, 361 (7th Cir. 1979); Levine v. Bryant, 700 F.Supp. 949, 957 (N.D. Ill. 1988); Horton v. Jackson County Bd. of Com'rs, 343 F.3d 897, 899 (7th Cir. 2003)). Thus, requiring Lynn to file an additional EEOC charge for acts that occurred after her original EEOC ...