finding no hostile work environment at the summary judgment stage based on allegations of “unfair suspensions, financially harmful floor reassignments, unjustified write-ups, and unusually close supervision” because these conditions did not create an “objectively offensive” environment and the “work environment was not physically threatening, nor was it openly racist, nor did it unreasonably interfere with plaintiffs’ performance”
How later courts described this case
- finding no hostile work environment at the summary judgment stage based on allegations of “unfair suspensions, financially harmful floor reassignments, unjustified write-ups, and unusually close supervision” because these conditions did not create an “objectively offensive” environment and the “work environment was not physically threatening, nor was it openly racist, nor did it unreasonably interfere with plaintiffs’ performance”
- determining that a work environment was not hostile where it “was not physically threatening, nor was it openly racist, nor did it unreasonably interfere with plaintiffsʹ performance”
- requiring plaintiffs to show “(1) that the work envi‐ ronment was both subjectively and objectively offensive; (2) that the har‐ assment was based on membership in a protected class; (3) that the con‐ duct was severe or pervasive; and (4) that there is a basis for employer liability.”
- defining a hostile work environment as one where the “workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment”
Written by the judges who cited it.
The opinion
In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 12‐3696
STACY ALEXANDER and KIM ROGERS,
Plaintiffs‐Appellants,
v.
CASINO QUEEN, INC.,
Defendant‐Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 10-CV-908-WDS — William D. Stiehl, Judge.
____________________
ARGUED NOVEMBER 15, 2013 — DECIDED JANUARY 8, 2014
____________________
Before FLAUM and HAMILTON, Circuit Judges, and
KAPALA, District Judge.*
FLAUM, Circuit Judge. Stacy Alexander and Kim Rogers
are African‐American women who used to work as cocktail
waitresses for Casino Queen, Inc. in East St. Louis, Illinois.
They allege race discrimination, retaliation, and a hostile
* Of the Northern District of Illinois, sitting by designation.
2 No. 12‐3696
work environment under Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq. The district court granted
Casino Queen summary judgment on all three claims. We
affirm as to the hostile work environment claim, but reverse
and remand as to the race discrimination and retaliation
claims.
I. Background
Plaintiff Alexander worked at Casino Queen from 1993
until July 2010, when she began an extended medical leave
of absence. Her employment ultimately ended in February
2012. Plaintiff Rogers worked at Casino Queen from 1994
through May 2010, when she voluntarily resigned. Both
were cocktail waitresses for the duration of their
employment; neither ever applied for a different position.
Both were also members of a union and therefore subject to a
collective bargaining agreement (“CBA”). This lawsuit is
based on Alexander’s experiences between October 11, 2007
and July 2010, and Rogers’ experiences between October 11,
2007 and May 2010.1 Their allegations fall into three buckets:
(1) floor reassignments, (2) discipline, and (3) privileges.
A. Floor reassignments
Plaintiffs’ most significant allegation from a financial
perspective concerns floor reassignments. At Casino Queen,
a cocktail waitress made $7 to $8 per hour in salary—about
$60 per day—and made $40 to $160 or more per day in tips.
Tips thus comprised about 40% to 73% of a waitress’s total
1 October 11, 2007 is the date that Alexander and Rogers filed their first
lawsuit against Casino Queen. The district court dismissed that suit due
to the misconduct of the plaintiffs’ then‐attorney, and we affirmed, see
Alexander v. Casino Queen, Inc., 321 Fed. App’x 509 (7th Cir. 2009).
No. 12‐3696 3
compensation. Three to six cocktail waitresses worked the
casino floor at any given time. Each waitress was assigned to
cover a specific area of the casino floor (e.g., the blackjack
tables, the penny slot machines, etc.). Plaintiffs state that
waitresses usually did not receive large tips from patrons
playing the “penny slots,” so that area of the casino floor
was not a desirable assignment. By contrast, average tips
were higher at the “high roller” tables, so that area was
desirable. The waitresses periodically bid on shift
assignments based on their seniority. By 2008, Alexander
and Rogers were the second‐ and sixth‐most senior
waitresses, respectively, allowing them to win their
preferred areas of the casino floor. On days when a waitress
was absent or went home early, the remaining waitresses
received new floor assignments, for that day only, to ensure
that the casino floor was fully covered. Plaintiffs state that
when these day‐by‐day reassignments occurred, Casino
Queen “almost always” moved them to less lucrative areas
of the floor, while white waitresses (often with less seniority)
were reassigned to cover what had been the plaintiffs’
desirable areas. Plaintiffs allege that these reassignments
occurred up to twice per week and cost them about $50 per
day.
For instance, Alexander alleges that in July 2009, she was
removed from her lucrative table‐game area on three
consecutive days to cover for another waitress on medical
leave. A less senior white waitress covered Alexander’s area.
Casino Queen replies that Kelly Carey, plaintiffs’ supervisor,
administered floor assignments “consistently pursuant to
pre‐arranged floor plans without regard to any particular
waitress’s race.” Carey, who is white, was a Food and
Beverage Director.
4 No. 12‐3696
Relatedly, Alexander also alleges that in late 2008, she
bid for and received an area with dollar slot machines,
which was considered a good‐tip area. A few months later,
though, the boundaries of her assigned area were redrawn
(without conducting a rebid), and as a result, she lost the
dollar slots and a white waitress received them.
B. Discipline
Plaintiffs next allege that they were disciplined more
harshly than their white colleagues with respect to tardies,
absences, breaks, and eating at work. On both October 3 and
November 3, 2008, Alexander claims that she was written up
for being tardy when she was actually on time. (She asked
the H.R. Director for copies of her time‐clock records.) On
November 6, Alexander was one minute late, and Casino
Queen then suspended her for a day because of her three
alleged tardies, resulting in a day of lost pay and tips.
Rogers, too, was written up for being late on November 3,
2008, even though time records showed that she clocked in
at 7:43 a.m. for her 7:45 a.m. shift. Plaintiffs say that a white
cocktail waitress, Kim Lay, arrived late to work 42 times in
an eleven‐month period, according to Rogers’ notes. In its
brief, Casino Queen says that under the CBA, eight tardies in
a rolling 12‐month period results in an employee’s
suspension. Plaintiffs state that nine tardies in a rolling 12‐
month period results in termination. Kim Lay was still
working at the casino when Rogers left in May 2010.
Plaintiffs also allege that when they arrived to work quite
late—between one and 2.5 hours late—Kelly Carey did not
allow them to work that day. That day counted as an
“absence” and plaintiffs lost their base pay and tips. The
situation was handled differently, however, when the
No. 12‐3696 5
cocktail waitress was white. For example, when Nicole
Khoury was a “no call/no show”—i.e., she neither came to
work nor notified Casino Queen of her absence—Casino
Queen called her in to work (2.5 hours late) and she worked
the rest of her shift. A “no call/no show” should result in
automatic termination, plaintiffs say. Similarly, on July 13,
2009, Kim Lay allegedly was more than one hour late, but
was allowed to work her shift.
On February 16 and 24, 2008, Alexander was written up
for absences that should have counted as leave under the
Family and Medical Leave Act of 1993. Casino Queen was
supposed to remove the write‐ups from her file, but did not;
as a result, when Alexander received a third absence in
October (due to a family emergency), Kelly Carey used the
“three” absences to suspend and then fire Alexander.
Alexander involved her union and was reinstated after
missing seven days of work. She recovered her base pay for
those seven days, but not the tips she would have earned.
On December 21, 2008, and again in April 2009, Carey
wrote up Alexander for stopping at the restroom after her
authorized lunch break before she returned to the casino
floor. Alexander says that she saw white cocktail waitresses
repeatedly do this; in fact, Alexander and Rogers allegedly
saw white waitresses taking extended breaks with Carey,
including at times that these waitresses were not scheduled
for breaks. Carey also wrote up Rogers for spending too
much time standing at the bar when Rogers was actually
waiting to pick up drinks. In contrast, Rogers says that white
waitresses, on several occasions, stood at the bar talking to
each other or white bartenders for extended periods. On
November 17, 2009, Rogers saw cocktail waitress Kim Lay
6 No. 12‐3696
talking on the casino floor to her boyfriend, who was also a
casino employee. Carey allegedly walked by the couple
twice before saying something to them.
On June 20, 2008, Rogers received a write‐up for having
food at her work area—a violation of company policy. When
Rogers reported the write‐up to the union representative, he
told her that on the same day, a white cocktail waitress
named Brandie was caught by management eating food at
the bar. Brandie’s food was taken away but she did not
receive a write‐up. Rogers saw white cocktail waitresses
eating on the casino floor many times, including Corena
Piatt on four specific dates in 2009; it is unclear, however,
whether management saw these incidents.
Finally, in March 2010, Rogers told H.R. representative
Kim Cushon (who is black) that she believed Carey was
watching her more closely than white cocktail waitresses, for
instance by following Rogers into the bathroom on multiple
occasions. Rogers said that she thought Carey was harassing
and retaliating against her. Cushon allegedly replied that it
was Carey’s “right” to single out Rogers.
C. Privileges
Rogers alleges that Carey denied her requests for
vacation or personal days without explanation, but routinely
approved white cocktail waitresses’ requests. In late May
2009, Carey allegedly denied Rogers’ request for a day off
the following Thursday. A few days later Carey approved
the request of Michelle, a white cocktail waitress, for a day
off the following Sunday. Plaintiffs state that Sundays were
busier than Thursdays. In addition, in December 2008,
Rogers’ aunt died and she asked Carey for an emergency
No. 12‐3696 7
day off to attend the funeral. Carey denied this request.
Several months later, Carey granted a white waitress’s
request for an emergency day off because a relative was
threatening suicide.
Rogers says that on May 20, 2010, she attempted to give
two weeks’ notice that she was resigning; white cocktail
waitresses such as Kim Turner, Kim Gann, and Brandie had
publicly announced their resignations and then continued to
work for two weeks afterward. But the day that Rogers gave
two weeks’ notice, Casino Queen’s H.R. representative told
Rogers not to come back to work. Rogers asked if she could
revoke her notice and work two more weeks, but was told
she could not. She reported to work the next day anyway,
but Casino Queen security guards escorted her out of the
casino. Rogers received her base pay for those two weeks,
but not the tips she would have earned.
Plaintiffs protested Casino Queen’s alleged
discrimination, but to no avail. Rogers repeatedly lodged
internal complaints, complained to Carey that she thought
she was being treated differently because of her race, filed
race discrimination complaints with the H.R. Director,
protested to a general manager, and complained to Carey’s
boss, Dominic Gramaglia, that her floor reassignments
caused her to lose tips. On one occasion, Gramaglia accused
Rogers of insubordination and sent her home early. In 2009,
two Casino Queen officials interviewed Rogers about her
race discrimination complaints and said they would conduct
an investigation. Rogers says that she never heard back from
them or anyone else about an investigation.
Alexander filed a charge of race discrimination with the
EEOC in November 2009, and Rogers followed suit in
8 No. 12‐3696
February 2010. Plaintiffs filed suit in federal district court in
2010. In 2012, the district court granted Casino Queen’s
motion for summary judgment on all three claims (race
discrimination, retaliation, and a hostile work environment).
The district court reasoned that plaintiffs did not prove an
adverse employment action, which doomed their race
discrimination and retaliation claims. The court also rejected
their hostile work environment claim. Plaintiffs appealed.
II. Discussion
We review the district court’s decision de novo,
construing all facts and drawing reasonable inferences in the
light most favorable to the non‐moving party, Alexander
and Rogers. Mullin v. Temco Machinery, Inc., 732 F.3d 772, 776
(7th Cir. 2013). Summary judgment is appropriate where
there is no genuine issue as to any material fact and the
moving party is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56; Fleishman v. Continental Cas. Co., 698 F.3d 598,
603 (7th Cir. 2012). In order to address plaintiffs’ substantive
allegations, we must first decide what evidence to consider;
plaintiffs seek to rely on not only their own allegations, but
also the depositions in another case, Riley‐Jackson v. Casino
Queen, Inc., No. 07‐cv‐0631‐MJR‐PMF (S.D. Ill.) (“Riley‐
Jackson”). After deciding this evidentiary question, we will
address plaintiffs’ race discrimination claim, followed by
their hostile work environment and retaliation claims.
A. The Riley‐Jackson depositions
In Riley‐Jackson, 72 African‐American cocktail waitresses
sued Casino Queen for race discrimination, retaliation, and a
hostile work environment. Before that case settled, the
parties took several depositions, some of which plaintiffs
No. 12‐3696 9
seek to rely on here. The district court excluded these
depositions under Federal Rule of Civil Procedure 32(a)(8),
which permits a deposition taken in one action to “be used
in a later action involving the same subject matter [and] the
same parties.” The district court reasoned that the parties in
this lawsuit are not “the same” as in the Riley‐Jackson suit.
The weight of authority is that depositions can be the
equivalent of affidavits, and are therefore admissible at the
summary judgment stage. See Hoover v. Switlik Parachute Co.,
663 F.2d 964, 966 (9th Cir. 1981) (reasoning that depositions
can meet Rule 56’s requirements when they are “made on
personal knowledge and set forth facts that were admissible
in evidence”); Tingey v. Radionics, 193 Fed. App’x 747, 765
(10th Cir. 2006) (“As the case law reveals, [Rule 32] is
primarily applied as a limitation on introducing deposition
testimony at trial.”); Vondriska v. Cugno, 368 Fed. App’x. 7, 8–
9 (11th Cir. 2010) (“Depositions, even those taken without
notice to or the presence of the later non‐moving party on
summary judgment, can” satisfy Rule 56’s requirements for
an affidavit); see also 7 Moore’s Federal Practice § 32.06 (3d
ed. 2013) (“A deposition may generally be used as the
equivalent of an affidavit in motion practice, even though
Rule 32 would bar receipt of the deposition as evidence at
trial. If the deposition was taken under oath and was based
on personal knowledge, it is at least the equivalent of an
affidavit.”).
We agree with the plaintiffs that, in a proper case,
depositions from one case may be used at the summary
judgment stage of another, even if Rule 32(a)(8)’s
requirements are not met. Two conditions must be met for a
case to be proper. First, the deposition must satisfy Rule 56’s
requirements for an affidavit or declaration—i.e., the
10 No. 12‐3696
testimony is based on personal knowledge and sets out facts
that would be admissible at trial, and the deponent is
competent to testify on these matters. Fed. R. Civ. P. 56(c)(4).
Second, the depositions from the other case must be part of
“the record” in the present case, because Rule 56 states that a
party must cite to “materials in the record.” Fed. R. Civ. P.
56(c)(1)(A) (emphasis added). To satisfy the second
requirement, the plaintiffs here needed to create a docket
entry, with attachments, to ensure that the relevant Riley‐
Jackson materials were part of the record in the plaintiffs’
case. The plaintiffs did not take this action—they never filed
the Riley‐Jackson depositions as part of the record in this case.
Plaintiffs argue that “the record” in this case includes
documents filed only in another case because such materials
are easily accessible in the era of electronic filing. We
respectfully disagree. Despite technological advancements,
“the record” still refers to the materials filed in this case.
Therefore, we cannot consider the Riley‐Jackson depositions.
B. Race discrimination
Plaintiffs contend that Casino Queen discriminated
against them because of their race, in violation of Title VII.2
Title VII makes it unlawful for an employer to “refuse to
hire … or otherwise to discriminate against any
individual … because of such individual’s race.” 42 U.S.C. §
2000e‐2(a)(1). Plaintiffs alleging discrimination can survive
2 Plaintiffs technically bring their discrimination and retaliation claims
under both Title VII and 42 U.S.C. § 1981. We analyze both claims under
Title VII because the analysis for these two claims is generally the same
under either statute. See Humphries v. CBOCS W., Inc., 474 F.3d 387, 403–
04 (7th Cir. 2007), aff’d, 553 U.S. 442 (2008).
No. 12‐3696 11
summary judgment through the direct or indirect method of
proof (or both). Mullin, 732 F.3d at 776. Plaintiffs here
proceed under both methods. Under the direct method,
plaintiffs must provide either direct evidence or
circumstantial evidence that supports an inference of
intentional discrimination. Id. Direct evidence requires an
admission of discriminatory intent, i.e., “smoking‐gun”
evidence. Id. Circumstantial evidence typically includes “(1)
suspicious timing, ambiguous oral or written statements, or
behavior toward or comments directed at other employees
in the protected group; (2) evidence, whether or not
rigorously statistical, that similarly situated employees
outside the protected class received systematically better
treatment; and (3) evidence that the employee was qualified
for the job in question but was passed over in favor of a
person outside the protected class and the employer’s reason
is a pretext for discrimination.” Id. (quoting Sun v. Bd. of Trs.
of Univ. of Ill., 473 F.3d 799, 812 (7th Cir. 2007)). Ultimately, a
plaintiff facing summary judgment must produce sufficient
evidence that a rational jury could conclude that the
employer took the adverse action against the plaintiff because
she belongs to a protected class. Id. (citing Hitchcock v. Angel
Corps, Inc., 718 F.3d 733, 737 (7th Cir. 2013)).
Under the indirect method, plaintiffs must first make out
a prima facie case of discrimination, see McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973), which has four
elements: they must demonstrate that (1) they are members
of a protected class; (2) they were meeting their employer’s
legitimate expectations; (3) they suffered an adverse
employment action; and (4) at least one similarly situated
employee, not in their protected class, was treated more
favorably. Rodgers v. White, 657 F.3d 511, 517 (7th Cir. 2011).
12 No. 12‐3696
If the plaintiffs establish a prima facie case, then “the burden
shifts to [Casino Queen] to articulate a legitimate,
nondiscriminatory reason for [the adverse employment
action] which if believed by the trier of fact, would support a
finding that unlawful discrimination was not the cause of
the employment action.” Petts v. Rockledge Furniture, LLC,
534 F.3d 715, 725 (7th Cir. 2008) (citation and internal
quotation marks omitted). If Casino Queen meets this
burden, the burden returns to the plaintiffs to prove, by a
preponderance of the evidence, that the proffered reason is a
pretext for race discrimination. Id. While the indirect
approach is often called a “burden shifting” method, “[t]he
ultimate burden of persuading the trier of fact that the
defendant intentionally discriminated against the plaintiff[s]
remains at all times with the plaintiff[s].” Contreras v. Suncast
Corp., 237 F.3d 756, 760 (7th Cir. 2001) (citation omitted).
Casino Queen concedes the first two elements under the
indirect method—membership in a protected class and
meeting its legitimate expectations. We proceed now to the
third and fourth elements. Because we ultimately conclude
that plaintiffs can avoid summary judgment based on the
indirect method of proof, we need not address their
arguments under the direct method, although they remain
free to offer all relevant evidence at trial.
i. Adverse employment action
The district court concluded that the plaintiffs did not
prove that they suffered an adverse employment action.
Adverse employment actions “generally fall into three
categories: (1) termination or reduction in compensation,
fringe benefits, or other financial terms of employment;
(2) transfers or changes in job duties that cause an
No. 12‐3696 13
employee’s skills to atrophy and reduce future career
prospects; and (3) unbearable changes in job conditions,
such as a hostile work environment or conditions amounting
to constructive discharge.” Barton v. Zimmer, Inc., 662 F.3d
448, 453–54 (7th Cir. 2011). To be actionable, an employment
action “must be a significant change in employment
status … or a decision causing a significant change in
benefits.” Lewis v. City of Chi., 496 F.3d 645, 653 (7th Cir.
2007) (citation omitted). Adverse employment actions are
often “economic injuries,” Markel v. Bd. of Regents of Univ. of
Wisc. Sys., 276 F.3d 906, 911 (7th Cir. 2002), but also “extend
beyond readily quantifiable losses.” O’Neal v. City of Chi., 392
F.3d 909, 911 (7th Cir. 2004) (citation omitted).
Under our precedents, the floor reassignments in this
case constitute an adverse employment action because of the
relative importance that tips had for these cocktail
waitresses, given their compensation structure and the
alleged frequency of these reassignments. Together, these
points demonstrate a significant financial impact. This is
crucial, because our cases emphasize the importance of a
“significant” change in benefits. See, e.g., Lewis, 496 F.3d at
653. Here, tips comprise anywhere from 40% to 73% of
plaintiffs’ compensation. It is true that patrons pay these
tips, not the employer; thus, the causal connection is not
immediate. Nonetheless, Casino Queen’s alleged “decision
caus[ed] a significant change in benefits” through a clear
causal relationship. Id. At the summary judgment stage, we
credit plaintiffs’ allegation that Casino Queen supervisors
knew that some areas average higher tips than others.
The district court came to this conclusion as well, but
found plaintiffs’ claims “speculative” because plaintiffs did
14 No. 12‐3696
not “indicate how much in tips they lost” and because “their
bidded areas only gave them a ‘good potential for tips.’” We
have said that “uncorroborated, self‐serving testimony
cannot support a claim if the testimony is based on
speculation, intuition, or rumor or is inherently implausible.
But testimony based on first‐hand experience is none of
those things.” Darchak v. City of Chi. Bd. of Educ., 580 F.3d
622, 631 (7th Cir. 2009) (citation and internal quotation
marks omitted). Plaintiffs’ claims are based on first‐hand
experience: Alexander and Rogers worked at Casino Queen
for 18 and 15 years respectively, providing a basis for their
statements (in the record) that they were reassigned up to
twice per week, that these reassignments often took them to
completely different and less lucrative areas of the casino
floor, and that these reassignments hurt them financially.
Plaintiffs’ alleged losses are admittedly estimates, but based
on their extensive experience, they were able to quantify
their daily tips ($40 to $160 for Rogers, and $75 to $150 for
Alexander), assert the frequency of their reassignments (up
to twice per week), and estimate the daily impact of these
reassignments ($50 per day). At this stage, that suffices.
Plaintiffs have sufficient evidence of an adverse employment
action to get to a jury.
ii. Similarly situated employee
The remaining requirement in establishing a prima facie
case of race discrimination is that plaintiffs demonstrate that
at least one similarly situated employee, outside of their
protected class, was treated more favorably than they were.
A similarly situated employee must be “directly
comparable” to plaintiffs “in all material respects.”
Abuelyaman v. Ill. State Univ., 667 F.3d 800, 810 (7th Cir. 2011)
No. 12‐3696 15
(citation omitted). This is a “common‐sense” analysis, “not
an … inflexible requirement that requires near one‐to‐one
mapping between employees.” Humphries v. CBOCS W., Inc.,
474 F.3d 387, 405 (7th Cir. 2007), aff’d, 553 U.S. 442 (2008).
We consider all relevant factors in making this
determination, including whether the similarly situated
employee held the same position, had the same supervisor,
was subject to the same standards, and engaged in similar
conduct. Id.
In this case, white cocktail waitresses are “directly
comparable” to the plaintiffs in all material respects: they
held the same position; Carey supervised and assigned work
to all cocktail waitresses, and was responsible for discipline
for all cocktail waitresses; the CBA “govern[ed] the terms
and conditions of employment of all Casino Queen Cocktail
Waitresses”; and the white waitresses’ relevant conduct is
quite similar as well. Plaintiffs allege that white cocktail
waitresses received systematically better treatment because
the white cocktail waitresses (1) were reassigned to higher
tip areas each week, even though they were often less senior;
(2) were repeatedly disciplined more favorably (e.g., Brandie
eating food at work, or Kim Lay being allowed to arrive late
42 times in a one‐year period where she would have been
fired if she had been disciplined nine of those times);
(3) were treated better with respect to privileges such as
restroom breaks and requests for vacation and personal‐
days; and (4) were permitted to work for two weeks after
submitting notice of their resignation, enabling them to earn
more through tips (e.g., Brandie, Kim Turner, and Kim
Gann). Plaintiffs therefore make out a prima facie case.
16 No. 12‐3696
iii. Legitimate, non‐discriminatory reason
The burden now shifts to Casino Queen to articulate a
legitimate, nondiscriminatory reason for plaintiffs’
treatment. With respect to disciplinary issues, Casino Queen
argues that it simply disciplined plaintiffs for violations of
company policy. With respect to floor reassignments, Casino
Queen relies on the account of Kelly Carey, the plaintiffs’
supervisor. Carey claims that floor reassignments were done
in a race‐neutral fashion according to various preexisting
floor plans—not according to the CBA. Plaintiffs say they
have never seen these “reassignment floor plans,” nor had
they heard of them until this lawsuit. Carey added that,
pursuant to these preexisting plans, waitresses “absorb[ed]”
other areas when a waitress was absent. Plaintiffs reply that
“absorbing” implies adding contiguous areas, whereas
plaintiffs were moved from one area of the casino floor to an
entirely different one. The reassignment plan diagrams
appear to support plaintiffs’ testimony because they show
plans for adding contiguous areas of the casino floor.
Furthermore, it is quite difficult to imagine that pre‐
arranged, race‐neutral plans would produce reassignments
whereby African‐American cocktail waitresses “almost
always” received low‐tip areas while white waitresses
consistently benefited. At this stage, we must credit the
plaintiffs’ account. And in any event, this potentially after‐
the‐fact justification could be merely a pretext for
discrimination. See Futrell v. J.I. Case, 38 F.3d 342, 349 (7th
Cir. 1994). The jury is the appropriate body to resolve these
credibility disputes. See Williams v. City of Chi., 733 F.3d 749,
752 (7th Cir. 2013). Accordingly, we conclude that plaintiffs
have established a race discrimination claim.
No. 12‐3696 17
C. Hostile work environment
Plaintiffs next allege that Casino Queen created a hostile
work environment by subjecting them to unfair suspensions,
financially harmful floor reassignments, unjustified write‐
ups, and unusually close supervision. Plaintiffs state that
Casino Queen knew about, but failed to remedy, their
complaints of race discrimination.
Title VII’s general prohibition against race discrimination
by employers includes a prohibition against creating a
“hostile or abusive work environment.” Adusumilli v. City of
Chi., 164 F.3d 353, 361 (7th Cir. 1998) (citation omitted).
Specifically, Title VII is violated when “the workplace is
permeated with discriminatory intimidation, ridicule, and
insult, that is sufficiently severe or pervasive to alter the
conditions of the victim’s employment and create an abusive
working environment.” Mendenhall v. Mueller Streamline Co.,
419 F.3d 686, 691 (7th Cir. 2005) (quoting Harris v. Forklift
Sys. Inc., 510 U.S. 17, 21 (1993)). “An actionable hostile
environment claim requires the plaintiff to prove: (1) that the
work environment was both subjectively and objectively
offensive; (2) that the harassment was based on membership
in a protected class; (3) that the conduct was severe or
pervasive; and (4) that there is a basis for employer liability.”
Id. The factors that we may consider in deciding whether the
environment is hostile include “the frequency of the
discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance;
and whether it unreasonably interferes with an employee’s
work performance.” Id. (quoting Harris, 510 U.S. at 23).
Plaintiffs’ allegations are serious, but they do not quite
rise to the level required to meet this test. See, e.g., Scruggs v.
18 No. 12‐3696
Garst Seed Co., 587 F.3d 832, 840 (7th Cir. 2009) (“To rise to
the level of a hostile work environment, conduct must be
sufficiently severe or pervasive to alter the conditions of
employment such that it creates an abusive working
environment.”) (emphasis added). We assume that this work
environment was subjectively offensive, that the
objectionable conduct was frequent, and that Casino Queen
did little to respond to complaints of discrimination. But
plaintiffs have not shown enough to prove that their work
environment was “objectively offensive.” This work
environment was not physically threatening, nor was it
openly racist, nor did it unreasonably interfere with
plaintiffs’ performance. See Gentry v. Export Packaging Co.,
238 F.3d 842, 851 (7th Cir. 2001) (holding it was reasonable
for the jury to find a hostile work environment where, due to
her immediate supervisor’s alleged sexual harassment, the
plaintiff “found it hard to concentrate on her work,” hated
her job, “often cried when she went to work,” and “was
treated for anxiety and depression”). Indeed, in her
deposition, Alexander said that she liked everything about
her job except Carey; if Carey had been fired, Alexander says
that she would not have filed this lawsuit. Because “[t]he
evidence is insufficient to show a workplace permeated with
discriminatory ridicule, intimidation, and insult,” we affirm
the district court’s grant of summary judgment. Luckie v.
Ameritech Corp., 389 F.3d 708, 714 (7th Cir. 2004).
D. Retaliation
Alexander and Rogers’ final allegation is that Casino
Queen unlawfully retaliated against them by reassigning
them to less lucrative areas of the casino floor, wrongly
terminating Alexander (even though she was ultimately
No. 12‐3696 19
reinstated), removing the high‐tip dollar slots from
Alexander’s assigned area, not permitting Rogers to work
for two weeks after submitting her resignation notice, and
Gramaglia’s accusing Alexander of insubordination and
sending her home for the day after Alexander complained
about discriminatory floor assignments.
Like a discrimination claim, a claim of retaliation may be
established through the direct or indirect method of proof.
Plaintiffs proceed under the indirect method, which “mirrors
that for discrimination.” Davis v. Con‐Way Transp. Cent.
Express, Inc., 368 F.3d 776, 788 (7th Cir. 2004); see also Brown
v. Advocate S. Suburban Hosp., 700 F.3d 1101, 1106 (7th Cir.
2012). Specifically, plaintiffs must show that they
“(1) engaged in a statutorily protected activity; (2) met [their]
employer’s legitimate expectations; (3) suffered an adverse
employment action; and (4) [were] treated less favorably
than similarly situated employees who did not engage in
statutorily protected activity.” Turner v. The Saloon, Ltd., 595
F.3d 679, 688 (7th Cir. 2010) (citation omitted). Under this
method, plaintiffs “need not show even an attenuated causal
link.” Rhodes v. Ill. Dep’t of Transp., 359 F.3d 498, 508 (7th Cir.
2004) (citation omitted). If plaintiffs can establish a prima
facie case, the burden then shifts to Casino Queen to
produce a non‐discriminatory reason for its employment
action. Nichols v. S. Ill. Univ.‐Edwardsville, 510 F.3d 772, 785
(7th Cir 2007). If Casino Queen meets its burden of
production, then plaintiffs must “demonstrate that [Casino
Queen’s] proffered reason is pretextual.” Id. In this case, the
parties agree that plaintiffs engaged in statutorily protected
activity. Given that the rest of our retaliation analysis (under
the indirect method) “mirrors” our discrimination analysis
(under the indirect method), Davis, 368 F.3d at 788, we find
20 No. 12‐3696
that plaintiffs satisfy their burden here as they did there.3 We
therefore reverse and remand on the issue of retaliation.
III. Conclusion
For the foregoing reasons, we AFFIRM as to the hostile
work environment claim, but REVERSE and REMAND as to the
race discrimination and retaliation claims.
3 Again, the first two requirements of the prima facie case are not in
dispute. With respect to the third requirement, plaintiffs have alleged,
inter alia, frequent removal from their high‐tip areas of the casino floor
in favor of white waitresses; Alexander’s wrongful termination, which
cost her seven days’ worth of tips; Casino Queen’s removing high‐tip
dollar slots from Alexander’s assigned area; and Rogers’ losing the
opportunity to earn two weeks’ worth of tips after she submitted her
notice of resignation. Based on plaintiffs’ estimates of their daily tips ($75
to $150 for Alexander, and $40 to $160 for Rogers), several of these
allegations likely cost plaintiffs several hundred dollars, if not more. The
loss of such a significant portion of plaintiffs’ income was clearly “a
decision causing a significant change in benefits.” Lewis, 496 F.3d at 653.
For the reasons explained above, plaintiffs also meet the similarly
situated requirement, and the jury is the appropriate body to resolve the
disputes of fact regarding Casino Queen’s proffered reasons for these
decisions.