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Stacy Alexander and Kim Rogers v. Casino Queen

October 24, 2012

STACY ALEXANDER AND KIM ROGERS, PLAINTIFFS,
v.
CASINO QUEEN, INC., DEFENDANT.



The opinion of the court was delivered by: Stiehl, District Judge:

MEMORANDUM & ORDER

I.INTRODUCTION

Before the Court are defendant Casino Queen, Inc.'s motions for summary judgment as to each plaintiff, Stacy Alexander and Kim Rogers (Docs. 37, 38). Plaintiffs are claiming race discrimination and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and 42 U.S.C. § 1981 (Doc. 5). They have responded to defendant's motions (Docs. 50, 51), and defendant has replied (Docs. 54, 55). Plaintiffs subsequently filed a motion to strike defendant's reply briefs (Docs. 56, 57), to which defendant responded (Doc. 58) and plaintiffs have replied (Doc. 62).

II.BACKGROUND

Plaintiffs Stacy Alexander and Kim Rogers are former cocktail waitresses at a casino in East St. Louis, Illinois, operated by defendant Casino Queen, Inc. They are both Af-rican-Americans. Alexander began her employment in 1993, Rogers in 1994. The Court previously granted in part defendant's motion to dismiss, limiting plaintiffs' claims in this action to events that have taken place since October 11, 2007 (Doc. 21).

A. Write-ups and disciplinary issues

Kelly Carey was the Food and Beverage Manager. She was responsible for any dis-cipline of all cocktail waitresses at the Casino Queen. Above Carey was Dominic Gramaglia, the Food and Beverage Director.

On February 8, April 24, and December 7, 2008, Kelly Carey wrote Alexander up for spending "excessive" time at the bar (Doc. 50, Ex. 2, ¶ 3). Alexander "observed and was told about white cocktail waitresses who spent as much or longer periods of time at the bar, or chatting with each other or with other employees rather than serving customers, but were not written up" (id., ¶ 3). Rogers observed "many occasions" in which white cocktail waitresses stood at the bar chatting with each other or with white bartenders for extended periods of time (id., Ex. 1, ¶ 10). On November 17, 2009, Kim Lay, a white waitress, spent an hour on the casino floor talking to another employee (id.). Carey passed them twice before finally saying something to them (id.).*fn1 In her deposition, Alexander mentions four white employees by name, but admitted that she has never asked them whether they had been written up for spending too much time at the bar (Doc. 37, Ex. 1, 166:7--10). She never asked Carey whether she had written the employees up either (id., 166:11--14).

On October 3 and November 3, 2008, Alexander was written up for being tardy, even though she was not (Doc. 50, Ex. 2, ¶ 4). On November 8, she was written up for arriving late two days before, even though time records showed she had only been one minute late (id.). She was then suspended for a day for having too many tardies.

Alexander saw Kim Lay arrive late often enough that she should have been terminated under a rule that employees were only allowed nine tardies in one year. Lay was not terminated (id.). Rogers counted that Lay arrived late 42 times between December 23, 2008, and November 11, 2009, yet Lay was still employed when Rogers left in May 2010 (id., Ex. 1, ¶ 5). She even saw Lay arrive five minutes late on November 11, 2009, and asserts that Carey saw it because she and Carey were both standing at the bar at the time (id., ¶ 6).*fn2 Rogers has never seen a white waitress's personnel files, however (Doc. 38, Ex. 1, 185:10--186:1). She admits that if Lay had been written up, she would not necessarily have known it (id.).

On February 16 and 24, 2008, Alexander was written up for absences while she was on leave under the Family and Medical Leave Act (Doc. 50, Ex. 2, ¶ 5). Later, when Alexander had a family emergency in October 2008 and wasn't able to call in before her shift started, Carey suspended and then fired her, using both that absence and the two absences from February (id.). Alexander was able to grieve the incident with her union. She was reinstated and recovered her base pay for the seven days she missed, but not for the tips she would have made (id.).

On April 7, 2009, Rogers overslept and was about two and a half hours late to work. Carey sent her home without letting her finish her shift (id., Ex. 1, ¶ 13).*fn3 She was not given a suspension for the April 7 absence (Doc. 38, Ex. 1, 85:10--12).

By contrast, on May 29, 2009, Nicole Khoury, a white cocktail waitress did not show up for work or call in.*fn4 But an unnamed cocktail waitress, as well as the Food and Beverage Director, Gramaglia, told Rogers that someone in defendant's organization had called Khoury to get her to come in to work and, when she arrived, allowed her to work the rest of her shift (id.). Gramaglia told Rogers it should not have happened. Rogers does not know whether Khoury was disciplined (Doc. 38, Ex. 1, 83:22--24).

On June 18, 2009, Alexander called in to say she would be late for work. She arrived less than two hours late (Doc. 50, Ex. 2, ¶ 7). Carey sent her home for being late, even though white waitresses with less seniority were working at the time and not sent home. Alexander was given an absence and suspended for one day (id.). She filed a grievance and was reimbursed her base pay for both days but was not reimbursed for lost tips (id.). On July 13, 2009, however, Kim Lay was over an hour late to work but was allowed to stay and complete her shift (id., ¶ 8).

On December 21, 2008, and again in April 2009, Carey wrote Alexander up for stopping at the restroom after lunch, before returning to the floor (id., ¶ 6). Alexander claims she saw white cocktail waitresses do the same thing repeatedly (id.). In August 2009, Alexander was written up and suspended for absences again when she was supposed to be on FMLA leave (id., ¶ 9).

On May 20, 2010, Rogers gave her two weeks' notice. A Human Resources representative called Rogers and told her not to come back to work. Rogers asked if she could revoke her notice so she could work the last two weeks, but was told no. She received her base pay for the two weeks but, of course, did not earn any tips (id., Ex. 1, ¶ 25). Yet Rogers had seen white cocktail waitresses Kim Turner, "Brandie," Kim Gann, and others announce their resignations and continue working for their last two weeks.

B. Floor assignments

Waitresses were assigned to specific areas of the casino floor, for instance to the slot machines or the gaming tables. Some areas were more lucrative for the waitresses be-cause the customers there tipped better. For example, the area around the "high roller" ta- bles was desirable because the average tips were higher, while the area around the penny slots was not (Doc. 50, Ex. 1, ¶ 15). And tips were a large part of the waitresses' income (id., Ex. 2, ¶ 11). Their base pay was between $7--8 per hour (about $60 per day). Depending on the area of the floor they were assigned to, tips could be from $75 to $150 or more per day for Alexander and $40 to $160 for Rogers (id., ¶ 11; id., Ex. 1, ¶ 16).

Cocktail waitresses periodically bid for areas of the floor (their shift assignments) based on seniority (id., Ex. 1, ¶ 17). When a waitress was absent, though, the remaining waitresses were given a new floor assignment for the day to cover the absent waitress's area (id., ¶ 19). By 2008, plaintiffs were both senior waitresses and could bid on and receive the areas that had "good potential for tips" (id., ¶ 18; id., Ex. 2, ¶ 13). But when new floor assignments were given to cover for absent waitresses, plaintiffs were "almost always," which they estimate was several times each week, moved from their assigned area to a less desirable area (id., Ex. 2, ¶ 15). White waitresses were then assigned to cover desirable parts of plaintiffs' areas (id.). The new floor assignments caused plaintiffs to earn less in tips (id.). Three days in July 2009, for instance, Alexander was removed from her lucrative table-game area and assigned to cover elsewhere, while a white waitress was given her table-game area (id., ¶ 16).

A separate incident occurred in late 2008 or early 2009. Alexander bid on and received an area containing the dollar slot machines, a good area for tips (id., Ex. 2, ¶ 14). Several months later, however, the assigned areas were reconfigured, and the dollar slots were removed from Alexander's area (id.). They were moved to an area assigned to a white waitress (id.). Although she says in her affidavit that no rebid was conducted, (id.), she stated in deposition testimony previously that she was allowed to bid on a new area (the dice pits), and that rebid resolved her problem with the removal of the dollar slot machines (Doc. 37, Ex. 1, 218:8--219:18). Alexander also acknowledged that Carey was not responsible for moving the games (id., 220:10--11). The "gaming guys" were, and she does not believe they were discriminating against her (id., 220:10--20). She agreed that Carey could not actually control when the gaming guys decide to move slot machines (id., 220:20--22). Alexander's affidavit explains further, "I do not mean the dollar slot machines were physically moved. I mean that the boundaries of my assigned area were changed so it no longer included them" (Doc. 50, Ex. 2, ¶ 14).*fn5

Rogers complained frequently to Carey about how she was treated, which she believed was because of her race. She filed several race-discrimination complaints with Human Resources. She complained to Gramaglia several times about the day-to-day reassignments from her assigned area and that it caused her to earn less in tips. On one occasion when she confronted him, he told her she was being insubordinate and sent her home before her shift was over (id., Ex. 1, ¶ 28).

III. Motion to Strike

Plaintiff's motion to strike (Docs. 56, 57) centers on the substance of defendant's reply briefs. Defendant says the only evidence plaintiffs provide in response to its motions for summary judgment are (1) their own affidavits, which defendant characterizes as self-serving, unnotarized statements, and (2) depositions taken in another case, Riley-Jackson v. Casino Queen, Inc., Case No. 07-cv-0631-MJR-PMF (S.D. Ill. May 31, 2011). Although defendant calls its filings reply briefs, defendant is in fact moving the Court to strike plaintiffs' affidavits and deposition testimony.

As to the affidavits, defendant argues they do not comply with Federal Rule of Civil Procedure 56(c)(4), which provides that affidavits used to oppose a motion "must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." See also Jajeh v. Cnty. of Cook, 678 F.3d 560, 568 (7th Cir. 2012). Plaintiffs do not respond to this argument. The difficulty with defendant's briefs on this issue, though, is that they are simply a memorandum of law without reference to the plaintiffs' allegations of fact in the affidavits. It cannot be said that all plaintiffs' allegations are not made on personal knowledge (e.g., "I received a write-up for being tardy on November 3, 2008" (Doc. 50, Ex. 1, ¶ 4)). The Court will therefore not strike the affidavits and will address plaintiffs' allegations in the course of resolving defendants' summary-judgment motions.

Defendant also moves that the Court either strike or ignore plaintiffs' citations to deposition testimony taken in the Riley-Jackson case. The Federal Rules of Civil Procedure state:

"A deposition lawfully taken and, if required, filed in any federal- or state-court action may be used in a later action involving the same subject matter between the same parties, or their representatives or successors in interest, to the same ex-tent as if taken in the later action. A deposition previously taken may also be used as allowed by the Federal Rules of Evidence.

Fed. R. Civ. P. 32(a)(8). Defendant therefore says the depositions are not admissible be-cause they are not "between the same parties." In similar circumstances, the Seventh Circuit agreed with the district court's exclusion of deposition testimony taken in an earlier action:

Many of the attachments were pages of depositions taken in other actions, which could be used if the other actions were "between the same parties or their representatives or successors in interest", Fed.R.Civ.P. 32(a)(4), a condition that does not appear to have been met. (We use the qualifier "appear" because the lawyer did not make any effort to show the relation among the parties to the different cases.)

Nw. Nat. Ins. Co. v. Baltes, 15 F.3d 660, 662 (7th Cir. 1994). Plaintiffs do not suggest the deposition testimony involves the same subject matter "between the same parties, or their representatives or successors in interest." Rather, they believe the court of appeals in Bal-tes merely held that depositions from another case can be used if the prior action was between the same parties, "but nowhere does the case say that it can only be used if the par-ties in the prior action were the same" (Doc. 57, p. 2). Yet Baltes held that the depositions were properly excluded. And, as in Baltes, plaintiffs here do not make any effort to show the relation among the parties to the different cases.

Plaintiffs move to strike defendant's reply (Docs. 56, 57). They argue that the depositions are admissible under Rule 32(a)(8), which they quote as follows: "[a] deposition previously taken [in another case] may also be used as allowed by the Federal Rules of Evidence" (Doc. 57, p. 2). They assert that Federal Rule of Evidence 804(b)(1) allows the admission of deposition testimony from another case where the parties are not the same so long as the party against whom the deposition is offered (or its predecessor in interest) had an adequate opportunity and motive to develop the witness's testimony through direct or cross examination. They further maintain that courts routinely admit such deposition testimony, citing Ross v. Black & Decker, 977 F.2d 1178, 1186 (7th Cir. 2003). But Rule 804(b)(1) applies to hearsay testimony when the declarant is unavailable as a witness. Fed. R. Evid. 804; Ross, 977 F.2d at 1186; United States v. Sklena, --- F.3d ----, No. 11-2589, 2012 WL 3608583, at *5 (7th Cir. Aug. 23, 2012). Plaintiffs do not show that any of the deponents from Riley-Jackson are unavailable. It is their burden to do so. See Michael H. Graham, 30C Fed. Prac. & Proc. Evid. § 7072 (2d ed.) (citing United States v. McGowan, 590 F.3d 446, 453--54 (7th Cir. 2009)). In a footnote, they make the specious claim that all witnesses are "unavailable" on a motion for summary judgment since live testimony is not taken. That is not the meaning of unavailable; it is defined in the rule itself. See Fed. R. Evid. 804(a); United States v. Donaldson, 978 F.2d 381, 392 (7th Cir. 1992) (unavailability is defined by Fed. R. Evid. 804(a).).

Finally, plaintiffs assert that defendant's arguments are made in bad faith because defendant itself used some deposition testimony from Riley-Jackson in its motions for summary judgment. Plaintiffs claim defendant should be estopped from attempting to have it both ways. This is reason to strike all the deposition testimony, however, not a reason to allow it. Plaintiffs contend that defendant's use of the deposition testimony has potentially prejudiced them because, not believing it necessary, they did not bother to argue why the testimony should be admitted. They therefore ask for leave to file a sur-reply brief if the Court chooses not to strike defendant's reply briefs. But it was plaintiffs' burden to establish the admissibility of the testimony whether defendant used similar testimony or not. The Court notes, in passing, that defendant's use of similar testimony was quite minor and not relevant to the issues in this case anyway. Moreover, instead of a sur-reply brief, plaintiffs have filed a motion to strike, a memorandum in support, and a reply brief all discussing the admissibility of the depositions; even if plaintiffs were lulled into complacency by ...


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