Alexander v. Casino Queen, Inc.

STACY ALEXANDER and KIM ROGERS, Plaintiffs,

v.CASINO QUEEN, INC., Defendant.

No. 10-CV-908-WDS

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

DATED: October 24, 2012

MEMORANDUM & ORDER

STIEHL, District Judge:

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 African-Americans. Alexander began her employment in 1993, Rogers in 1994. The Courtpreviously 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 discipline 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.).¹ 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).² 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).³ 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.⁴ But an unnamed cocktail waitress, as well as the Food and Beverage Director, Gramaglia, told Rogers that someone in defendant's organization hadcalled 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 because 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 doesnot 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).⁵

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 reas-signments 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,...