United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
J. ROSENSTENGEL UNITED STATES DISTRICT JUDGE.
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.
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
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.
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.
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.
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.
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.
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.
Count Four is a claim under Illinois common law for wrongful
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
Standard of Review
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).
Common Law Claim for Retaliatory Discharge
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).
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).
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
Title VII Claims
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.
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
Plaintiff's National Origin
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).
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
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 ...