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Sheshi v. Casino Queen, Inc.

United States District Court, S.D. Illinois

September 16, 2016

ALEKS SHESHI, Plaintiff,
v.
CASINO QUEEN, INC., Defendant.

          MEMORANDUM AND ORDER

          NANCY J. ROSENSTENGEL UNITED STATES DISTRICT JUDGE.

         Currently pending before the Court is a motion for summary judgment filed by Defendant Casino Queen, Inc. on June 22, 2016 (Doc. 30). The Court held a hearing on this motion on August 22, 2016 (Doc. 42). For the following reasons and those set forth on the record at the hearing, the motion for summary judgment is granted in part and denied in part.

         Factual Background

         The Court begins with a general overview of the relevant background facts, which are without genuine dispute. More detailed facts are presented throughout this Order as needed to discuss the specific theories of liability alleged in the complaint.

         Plaintiff Aleks Sheshi was born in Albania in the 1960s to an Albanian mother and a Greek father. He lived in Albania until 1990 when he fled with his wife and daughter to Greece during the fall of Communism in Albania. The Sheshi family then immigrated to the United States in May 1993. Sheshi was hired as a security guard at the Casino Queen in June 1994. He was employed there for twenty one years.

         Sheshi claims that he was the only foreign-born security officer at the Casino Queen during the course of his career and that he was treated differently because of it. For example, some of Sheshi's co-workers and supervisors made fun of the way he spoke and ridiculed him for being foreign and Greek. Sheshi was given the least lucrative and least desirable job assignments. He was also picked on and singled out by his supervisors. Things came to a head for Sheshi in October 2014 when a co-worker accused him of stealing tips. There was no definitive proof that Sheshi stole the tip, so he was not fired; but he was given a write-up for failing to follow the Security Department's policy for handling tips. Sheshi believes the investigation conducted by his supervisors into the tip-stealing accusation and the discipline he received was unfair and discriminatory.

         A month later, in November 2014, Sheshi missed two days of work when his sister-in-law died. He was terminated by the Casino Queen for a “no call, no show“ on the second day. Sheshi attempted to appeal his termination through the Casino's Guaranteed Fair Treatment (“GFT“) process, which provides for review by progressively higher levels of management of employee problems, concerns, and complaints (Doc. 39-2, p. 25). The GFT process took an uncharacteristically long time, and over five weeks after he was initially terminated, Sheshi received the GFT decision indicating the termination would stand.

         Procedural History

         Sheshi filed a four-count complaint related to his employment and termination in this Court on August 10, 2015 (Doc. 1). Count One is a claim under Title VII for “national origin based discrimination“ (Doc. 1). More specifically, Sheshi alleges that the Casino Queen violated Title VII when he was exposed to “discrimination, harassment, and a hostile work environment“ because he is of Greek origin (Doc. 1; Doc. 35, p. 1). Based on these allegations, it appears that Sheshi is actually bringing two claims: one for discrimination and one for hostile work environment. The distinction is important because, as discussed below, there are different standards for proving these two types of claims. Consequently, the Court construes Count One as stating both a claim for discrimination and for hostile work environment based on national origin.

         The same goes for Count Two, which is a claim under the Age Discrimination in Employment Act (“ADEA“) (Doc. 1). Sheshi alleges in the complaint that the Casino Queen violated the ADEA when he was “subjected to unlawful discrimination, harassment and hostile work environment based on his age“ (Doc. 1, ¶¶47, 48). Thus, it once again appears that Sheshi is actually bringing two distinct claims: one for discrimination and one for hostile work environment. The Court construes Count Two accordingly.

         Count Three is a claim for retaliation, but Sheshi does not specify on which statute the claim is based. It appears that Sheshi is invoking both Title VII and the ADEA because he alleges that he was retaliated against for reporting “unlawful national-origin-based and age-motivated harassment“ (Doc. 1, p. 14). Consequently, the Court construes Count Three as stating both a claim for retaliation under Title VII and a claim for retaliation under the ADEA.

         Finally, Count Four is a claim under Illinois common law for wrongful termination.

         Following the hearing on the motion for summary judgment on August 22, 2016, the Court granted summary judgment on Count Four for common law wrongful termination. Summary judgment was denied on Sheshi's Title VII claims for discrimination and hostile work environment, and Sheshi's ADEA claim for discrimination. And the motion was taken under advisement as to Sheshi's Title VII claim for retaliation and Sheshi's ADEA claims for hostile work environment and retaliation.

         Discussion

         I. Standard of Review

         The standard applied to summary judgment motions under Federal Rule of Civil Procedure 56 is well-settled and has been succinctly stated as follows:

Summary jud1gment is appropriate where the admissible evidence shows that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. A “material fact“ is one identified by the substantive law as affecting the outcome of the suit. A “genuine issue“ exists with respect to any such material fact . . . when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.“ On the other hand, where the factual record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is nothing for a jury to do. In determining whether a genuine issue of material fact exists, we view the record in the light most favorable to the nonmoving party.

Bunn v. Khoury Enterprises, Inc., 753 F.3d 676, 681 (7th Cir. 2014) (citations omitted).

         II. Common Law Claim for Retaliatory Discharge

         In Count Four, Sheshi alleges that the Casino Queen violated Illinois common law by wrongfully terminating him (Doc. 1). In particular, he claims that he was terminated for a “no-call, no-show“ after he was granted bereavement leave or time off (Doc. 36, p. 19).

         The tort of retaliatory discharge “is an exception to the general rule that an ‘at-will' employment is terminable at any time for any or no cause.“ Palmateer v. Int'l Harvester Co., 421 N.E.2d 876, 878 (Ill. 1981). To sustain a cause of action for retaliatory discharge, an employee must prove that he was discharged in retaliation for his activities and that the discharge violates a clear mandate of public policy. Michael v. Precision Alliance Group, LLC, 21 N.E.3d 1183, 1188 (Ill. 2014) (citing Turner v. Memorial Medical Center, 911 N.E.2d 369 (Ill. 2009)). “[T]here is no precise definition of what constitutes clearly mandated public policy, “ but Illinois courts have identified only two situations in which the standard is met: (1) when an employee is fired for asserting a workers' compensation claim, and (2) when an employee is fired for refusing to engage in or reporting illegal conduct, otherwise known as “whistleblowing.“ Michael, 21 N.E.3d at 1188; Brandon v. Anesthesia & Pain Mgmt. Associates, Ltd., 277 F.3d 936, 941 (7th Cir. 2002). See also Irizarry v. Illinois Cent. R.R. Co., 879 N.E.2d 1007, 1012-14 (Ill.App.Ct. 2007) (discussing instances where Illinois courts refused to expand the retaliatory discharge tort to cover a discharge for exercising right to free speech, for filing an FELA claim, for filing a health insurance claim, for filing a libel and slander suit against employer, and for marrying a coworker).

         Firing an employee for missing work to attend a family member's funeral is contemptible, without a doubt. But unfortunately for Sheshi, it does not make the Casino Queen liable for the tort of retaliatory discharge. That tort is very narrowly construed, and Sheshi's claim simply does not fit within either of the two recognized categories for sustaining a retaliatory discharge claim. Accordingly, summary judgment is granted to Defendant on Count Four for common law wrongful termination.

         III. Title VII Claims

         Title VII prohibits employers from discriminating against any individual because of the individual's national origin, which includes subjecting employees to a hostile or abusive work environment. 42 U.S.C. § 2000e-2(a)(1); Boss v. Castro, 816 F.3d 910, 916 (7th Cir. 2016) (citing Orton-Bell v. Indiana, 759 F.3d 768, 773 (7th Cir. 2014)). Employers are also prohibited from retaliating against employees for complaining about unlawful discrimination. 42 U.S.C. § 2000e-3(a); Boss, 816 F.3d at 916.

         Here, Sheshi claims that while he was employed by the Casino Queen, he was the only security guard of foreign national origin. Sheshi further claims that he was subjected to a hostile work environment and discriminated against throughout the course of his career and retaliated against because he was foreign (Doc. 1; Docs. 30, 31). Each of Sheshi's three Title VII claims will be discussed in turn below. But first, the Court will address Defendant's argument disputing Sheshi's national origin.

         A. Plaintiff's National Origin

         In his complaint, Sheshi asserts that his national origin is Greek (Doc. 1). According to the Casino Queen, this assertion, which is “at the heart of Sheshi's complaint, “ is “simply not true“-Plaintiff is Albanian, not Greek (Doc. 31, pp. 3, 5, 6). The Casino Queen argues that Sheshi's “inaccurate account of his national origin“ requires the “immediate termination“ of the entire complaint (Doc. 31, p. 6).

         The Court disagrees. Defendant's argument embodies a view of national origin discrimination that is far too narrow and also ignores the undisputed evidence. A Title VII claim based on national origin is not just about where an individual was born; it can also be based on where the individual's ancestors were born, or the individual's physical, cultural, or linguistic characteristics. See Saint Francis College v. Al-Khazrji, 481 U.S. 604, 614 (1987) (Brennan, J., concurring) (the terms “ancestry“ and “ethnicity“ overlap with “national origin“ as a legal matter); Espinoza v. Farah Mfg. Co., 414 U.S. 86, 88 (1973) (“The term ‘national origin' on its face refers to the country where a person was born, or, more broadly, the country from which his or her ancestors came.“); 29 C.F.R. § 1606.1 (explaining that the EEOC “defines national origin discrimination broadly as including, but not limited to, the denial of equal employment opportunity because of an individual‘s, or his or her ancestor‘s, place of origin; or because an individual has the physical, cultural or linguistic characteristics of a national origin group.“)

         Here, Sheshi's undisputed testimony is that his father was Greek and his mother was Albanian (Doc. 39, p. 6). It is therefore clear that Sheshi has Greek as well as Albanian ancestry. Additionally, Sheshi speaks both Greek and Albanian, and he has lived in both countries (see Id. at pp. 5, 6). For the purposes of this lawsuit, Sheshi chose to identify his national origin as Greek, perhaps because that is how he self-identifies or perhaps because that is how his co-workers saw him. Either way, his choice is not “wrong“ or “untrue, “ as Defendant claims. The point of Sheshi's Title VII national origin claims is not to determine the precise makeup of his blood or to dissect the label he chose for himself. The point is that ...


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