Casino Cocktail Waitresses
in Race Case Get Half a Loaf
No Hostile Environment, but
Trial for Discrimination and Retaliation
not Sufficient to Buttress Case
In Alexander et al v. CasinoQueen Inc., __F.3rd__, 12-3696 (7th Cir. 2014) two Black cocktail waitresses at an East St. Louis casino sued over 1) assignments to less lucrative areas of the facility, e.g., the penny slot machines, whereas White counterparts were given the higher tip tables for the “high rollers” such as poker and crap tables, 2) discipline for tardiness and absenteeism that was not disciplined when Whites did the same thing, 3) a hostile work environment based on this disparate treatment, and 4) retaliation, especially the termination of one of the plaintiffs, after complaining about this treatment.
The court of appeals in part reversed summary judgment entered at the trial court. The lower court had found for the casino on the tips issue because there was no adverse employment action. The judge had reasoned that plaintiffs could only speculate about their economic damage because the alleged loss of income would have come from customers, and to estimate the injury in dollars would have been self-serving. Judge Flaum disagreed. The plaintiffs had combined experience of thirty-three years at the casino and were competent to state what they estimated their lost tips were. It was not self-serving to give such evidence in support of a claim of an adverse action.
As to the hostile environment claim, the appeals court upheld the judgment for the casino, pointing out that such claims must involve arguably abusive working conditions. Being disciplined for absenteeism and tardiness on the basis of race, and losing high-tip assignments to junior, White employees was certainly offensive, but the facts did not support a claim for a hostile environment.
In attempting to withstand the motion for summary judgment the plaintiffs relied in part on depositions taken and transcribed in an earlier case against the same casino involving seventy-two Black cocktail waitresses (but not the plaintiffs). The appeals court affirmed the refusal of the lower court to consider these transcripts. Apparently the plaintiffs assumed that with electronic filing in federal court that there was no need to file the transcripts in their case to rely on them “Despite technological advancements, ‘the record’ still refers to the materials filed in this case,” the court observed, confirming there was no docket entry with these attachments.