The opinion of the court was delivered by: Reagan, District Judge
MEMORANDUM AND ORDER (Denying Doc. 143 Casino Queen's motion for summary judgmentas to Jimmie King)
On July 3, 2008, Jimmie King ("King") joined this action against his former employer, Casino Queen, Inc. ("Casino Queen"). King's complaint is brought pursuant to 42 U.S.C. § 1981and alleges that the Casino Queen discriminated against him because of his race, African-American, during his employment at the Casino Queen, from 1999 through January 6, 2006. King's complaint asserts a single count (Count 89) against the Casino Queen: 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. Now before the Court is the Casino Queen's summary judgment motion and memorandum, filed July 2, 2010 (Doc. 143), which is fully briefed and ready for disposition.
King was employed by the Casino Queen from 1999 to January 2006. He began his employment as a dishwasher. He subsequently was employed as a food runner, a barback and a cook before becoming a sous chef in April 2002. As a sous chef, King worked under Food and Beverage Department Director Dominic Gramaglia ("Gramaglia") and Executive Chef Alex Lazella ("Lazella"), supervising kitchen employees. The stated reason for King's termination was unsatisfactory job performance. King claims that he was terminated for refusing to obey an order by Lazella to write up two of his African-American employees for violating a kitchen policy against leaving food out. King states that he believed that the employees had been wrongfully accused of the violation and that singling them out was racially motivated.
King alleges that the Casino Queen terminated his employment in violation of § 1981. He also alleges that prior to his termination, he and other African-American employees were subject to racial discrimination in the form of falsified or questionable disciplinary write-ups, as well as a hostile work environment. He alleges that Lazella would "get in the face" of African-American employees, but not Caucasians; that African-American employees were given more work than their Caucasian counterparts; that Lazella socialized with Caucasian employees, but not African-American employees; and that Lazella retaliated against African-American employees who complained to upper management. King alleges that despite a history of retaliation, he raised complaints about the treatment of African-Americans working under Lazella and Gramaglia with the Casino Queens's Human Resources Department shortly prior to his termination.
The Casino Queen contends that there was no discriminatory basis for King's termination. It claims that his termination was for unsatisfactory job performance and cites to numerous Employee Warning Notices for violation of various company policies during his employment. The Casino Queen further contends that King 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 King 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 him. The Casino Queen also insists, and King admits, that King has never requested a grievance hearing or a Guaranteed Fair Treatment hearing at any time during his employment, though King claims he did make complaints of racial discrimination to the Casino Queen's Human Resources Department. On these grounds, the Casino Queen asserts that King 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
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 King'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.
King's claims brought pursuant to § 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 his claims were added in the third amended complaint, filed July 3, 2008, the Court has determined that all claims herein relate back to the original complaint. See, e.g., Doc. 444. Therefore, King's §1981 claims regarding discriminatory acts that allegedly took place prior to September 4, 2003, are barred by the applicable statute of limitations.
The Casino Queen contends that to date no copies of any EEOC complaint have been attached to King's complaint or produced during discovery. In order to bring an action in federal court under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"), a plaintiff must file a charge of discrimination with the EEOC within 300 days "after the alleged unlawful employment practice occurred." 42 U.S.C. § 2000e-5(e). However, claims brought under § 1981, unlike claims under Title VII, do not require a plaintiff to bring charges with the EEOC before filing a claim in federal court, Fane v. Locke Reynolds, LLP, 480 F.3d 534, 539 (7th Cir. 2007). King has brought only a § 1981 claim. Accordingly, the Court need not ...