The Seventh Circuit reverses summary judgment in a case involving allegations of racially discriminatory (and retaliatory) treatment of two African American cocktail servers at a Mississippi River casino. The court holds that discrimination in table assignments is an adverse employment action under Title VII and 42 U.S.C. § 1981, because it cut into the servers’ tip income.
Stacy Alexander and Kim Rogers allege that from 2007 to 2010, they were subjected to discrimination and retaliation (for filing an earlier lawsuit) in three areas.
First, they claim that on days when waitresses received new floor assignments (to replace absent servers), they were regularly assigned to the “penny slots,” rather than the “high-roller” tables that yielded higher tips. White servers with less seniority often got these better stations. Because tip income constitutes 40% to 73% of a server’s total income at this facility, a bad assignment could take a big bite out of earnings. In one 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.”
Second, they allege “that they were disciplined more harshly than their white colleagues with respect to tardies, absences, breaks, and eating at work.”
Finally, “Rogers alleges that Carey denied her requests for vacation or personal days without explanation, but routinely approved white cocktail waitresses’ requests.”
The employees filed a Title VII and 42 U.S.C. § 1981 race discrimination, harassment and retaliation complaint in 2010. The case was dismissed in 2012: “The district court reasoned that plaintiff did not prove an adverse employment action, which doomed their race discrimination and retaliation claims. The court also rejected their hostile work environment claim.”
The Seventh Circuit reverses on the first two claims, and affirms on the third. On the discrimination and retaliation claims, it holds that “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.” It rejects the district court’s holding that proof of the loss of tip-income was “speculative” because it is based solely on the plaintiff’ testimony:
“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. plaintiff’ 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. plaintiff have sufficient evidence of an adverse employment action to get to a jury.”
The panel also holds that the plaintiff identified sufficiently comparable white servers who received better assignments.:
“In this case, white cocktail waitresses are ‘directly comparable’ to the plaintiff in all material respects: they held the same position; [floor manager] 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.”
And the court holds that the plaintiff presented sufficient evidence to make a genuine issue of material fact out of the employer’s explanation for the reassignments, i.e., “that floor reassignments were done in a race‐neutral fashion according to various preexisting floor plans.” plaintiff responded that the company management had never shown them the floor plans, and – in any case – “it is quite difficult to imagine that prearranged, race‐neutral plans would produce reassignments whereby African‐American cocktail waitresses ‘almost always’ received low‐tip areas while white waitresses consistently benefited.”
Finally, the panel holds that the same conduct, while serious, did not rise to the level of a racially hostile environment. “This work environment was not physically threatening, nor was it openly racist, nor did it unreasonably interfere with plaintiff’ performance.”