The opinion of the court was delivered by: Matthew F. Kennelly, District Judge:
MEMORANDUM OPINION AND ORDER
Willie C. Downey has sued his former employer, R.W. Briscoe & Associates, Inc. d/b/a Enforcement Security Agency (ESA), and the business at whose facility he worked, YRC, Inc. (YRC). Downey asserts three claims of race discrimination pursuant to 42 U.S.C. § 1981. Only one of those claims involves YRC-Downey's claim that YRC maintained a racially hostile work environment. YRC has moved for summary judgment on that claim and has asked the Court to strike certain parts of Downey's affidavit and his statement of additional facts submitted pursuant to Local Rule 56.1.
YRC moved for summary judgment on three separate grounds. After discussions with the parties on March 13, 2012, the Court deferred YRC's motion except for one issue-whether YRC may be considered to have been Downey's de facto employer such that it may be subject to liability on his race discrimination claim. For the reasons stated below, the Court denies YRC's motion for summary judgment in that regarding and denies as moot YRC's request to strike.
YRC operates a trucking and freight terminal at 2000 Lincoln Highway in Chicago Heights, Illinois (the Chicago Heights Terminal). The terminal was formerly operated by Roadway Express, Inc. (Roadway), but in approximately 2008--2009, Roadway merged with another transportation company to create YRC.
Downey, who is African--American, began working as a security guard at the Chicago Heights Terminal in 1998. In his complaint, Downey alleges that YRC was responsible for maintaining a racially hostile work environment during his ten-year tenure at the Chicago Heights Terminal. Am. Compl. ¶ 41. Specifically, Downey alleges that YRC failed to take action against: (1) frequent displays of nooses and other racially hostile symbols around the Chicago Heights Terminal, (2) racially hostile graffiti posted in the facility's bathrooms, and (3) YRC employees' frequent use of racial slurs against Downey.
Downey began working at the Chicago Heights Terminal after he was hired by Hunt & Hunt Investigations, a private security company that had a contract with YRC to provide security at the facility. Downey was given an identification badge with his name and "ROADWAY Express SECURITY OFFICER" written across the top. Pl. Ex. 2. Hunt & Hunt required Downey to purchase his own uniform, but it reimbursed him for the costs. Hunt & Hunt did not reimburse Downey for the cost of the gun he was required to carry while on duty. During his deposition, Downey testified that he received a Roadway book of rules that dictated what the guards were required to do and "how [they] needed to do it." Pl. Ex. 5 at 48--49. YRC denies that Downey was ever given a Roadway rulebook.
As a security guard, Downey was required to screen incoming and outgoing employees to protect against theft, inspect trucks before allowing them to leave the facility, record each truck's and employee's identification details into a shift log, and patrol the entire premises, including the loading docks, bathrooms, buildings, and fence line. At the facility, Downey had three direct supervisors from Hunt & Hunt who scheduled the shifts on which each guard was assigned to work. Downey attended an annual performance review conducted by those three supervisors. The parties dispute whether a YRC representative was also present during the reviews.
The parties disagree regarding whether Downey was ever paid directly by Roadway, the entity operating the Chicago Heights Terminal at the time. In his deposition, Downey testified that from 1998 to sometime in 2005, he received a check in the mail every week from Roadway Express. Pl. Ex. 5 at 32--33. YRC denies that Downey ever received paychecks from Roadway. Both parties agree that in 2003, Roadway sent Downey a 1099-MISC form stating that he received "non-employee" compensation from Roadway. Pl. Ex. 3. It is undisputed that by the end of 2005, Downey was receiving his paychecks through the mail from Hunt & Hunt. Def. Ex. 3 ¶ 9; Pl. Ex. 5 at 35--36.
On June 7, 2006, Ronin Risk took over security at the Chicago Heights Terminal. Ralph Briscoe, the company's owner, hired Downey to remain as a security guard at the Terminal. During his deposition, Downey testified that Briscoe hired him as a supervisor to ensure that the transition and training of new employees would go smoothly. Def. Ex. 1 at 52. Downey was demoted to his previous position as security guard during the first year he worked for Ronin Risk, but he was again promoted to supervisor approximately one year later. Id. at 176--77.
Downey had one direct supervisor, also an employee of Ronin Risk, who took over the duties of scheduling shifts. The company gave Downey a new uniform, but his identification badge remained the same. Downey began receiving paychecks from Ronin Risk. It is undisputed that after Ronin Risk began providing security to the Chicago Heights Terminal, guards working during Downey's shift no longer patrolled the facility grounds and instead worked exclusively at the exit gates. The parties disagree, however, regarding whether YRC or Ronin Risk made this decision.
Sometime in 2007, Briscoe notified the security guards at the Chicago Heights Terminal that another one of his companies, ESA, would be taking over as the new security provider to the facility. Only two changes occurred as a result of ESA taking over the security at the facility: the "Ronin Risk" patch on Downey's hat was removed, and Downey began receiving paychecks from ESA rather than Ronin Risk.
Downey testified that from time to time, the security guards received orders about how to perform their duties, as well as discrete tasks that they were required to do that day. Pl. Ex. 5 at 82--89. Downey stated that those orders came from YRC personnel, typically in the form of written and signed memoranda that were posted on the guard shack. Id. at 89--92. YRC contends that none of its employees ever gave orders to any of the security guards at the Chicago Heights Terminal and that the security companies were solely responsible for the guards' work assignments. Def. Ex. 2 ¶ 5.
The parties agree that during the ten years Downey worked at the Chicago Heights Terminal, he did not work as a security guard at any other facility. Downey concedes that when Hunt & Hunt's contract expired, Mr. Hunt offered to keep Downey and assign him to a different facility, but Downey elected to stay at the Chicago Heights Terminal as a supervisor with Ronin Risk and subsequently with ESA. ...