Seventh Circuit affirms summary judgment for Penthouse Club in discrimination suit

By Heather Isringhausen Gvillo | Dec 13, 2017

The Seventh Circuit Appellate court affirmed district judge Phil Gilbert’s ruling granting summary judgment for Penthouse Club in a former employee’s age and race discrimination suit.

The Seventh Circuit Appellate Court affirmed district judge Phil Gilbert’s ruling granting summary judgment for Penthouse Club in a former employee’s age and race discrimination suit.

Appellate judges Michael Kanne, Diane Sykes and David Hamilton entered the opinion on Dec. 7.

Plaintiff Charles Scurlock, who is African American, was 50 years old when he was hired as a receptionist and “courtesy host” for defendant IRC LP, doing business as Penthouse Club, in April 2014.

He alleges that within days of being hired, his direct supervisor, Jim Lindsey, began calling him “stupid,” “dumb,” "Special” and “old” during their shared shifts.

On an early morning in November, Scurlock claims he was involved in a dispute at an adjacent nightclub and was told by the police to leave. Scurlock ran into a coworker in the parking lot, who allegedly “hurled a racial epithet at him and screamed that he had been ‘written up.’”

Scurlock claims he texted Lindsey to ask why he was being written up. Lindsey called him, and Scurlock described the morning’s incident and informed him of the alleged racially derogatory terms said by the coworker. He also complained about Lindsey calling him “old,” among other terms.

Lindsey allegedly told Scurlock that he was not being written up and should return to work. Scurlock said he would not return unless something was done about the name calling.

Lindsey told Scurlock that he could not do anything about the coworker’s statements but assured him that it would not happen again.

Scurlock told Lindsey that he wanted to speak to a supervisor above Lindsey’s rank.

Scurlock eventually spoke with manager Rich Overstreet, who promised to investigate and get back to him.

Scurlock claims he had the impression from the two conversations that he had been fired, so he did not return to work. When he did not show up for his scheduled shift on Nov. 24, the company determined that he had quit his job and recorded the termination as a “voluntary termination.”

Scurlock then filed a lawsuit against Penthouse, arguing that his employer violated Title VII of the Civil Rights Act of 1964 by subjecting him to a hostile work environment and constructive discharge.

Gilbert granted summary judgment to Penthouse, reasoning that Scurlock’s hostile work environment claim based on race failed because he could not point to evidence that his coworker’s use of the racially derogatory terms created an objectively hostile work environment.

Gilbert also based his ruling on the fact that the encounter happened outside of work and the coworker was not in Scurlock’s chain of command.

As for Scurlock’s age discrimination claim, Gilbert acknowledged that a reasonable jury could deem Lindsey’s name calling as "insulting and pervasive," but no reasonable jury could find that the actions made Scurlock’s work environment “so intolerable that he was compelled to resign.”

“In any event, the court added, once Scurlock had reported Lindsey’s conduct to Overstreet, Scurlock did not remain on the job long enough to give Penthouse a reasonable opportunity to remedy it,” the opinion states.

Scurlock appealed, challenging Gilbert’s conclusion that he failed to present evidence to establish a race-based hostile work environment.

The appellate court affirmed Gilbert’s decision, holding that the coworker’s racial epithet “was highly offensive and wholly unacceptable, but summary judgment on this claim was proper because this single incident took place outside of the workplace by an employee who did not supervise Scurlock.”

Scurlock also challenged Gilbert’s finding that the evidence is insufficient to permit an inference of an age-based hostile work environment.

The appellate court concluded that Scurlock misreads the court’s ruling. Gilbert “conceded that Lindsey’s name calling was ‘humiliating,’ but no reasonable jury could find that the name calling created a work environment so intolerable to compel him to resign or that Penthouse did not exercise reasonable care to prevent age harassment or that Scurlock took advantage of preventative and corrective opportunities available to him through the company’s EEO policy for reporting harassment.

The case was decided without oral argument “because the briefs and record adequately present the facts and legal arguments, and oral argument would not significantly aid the court.”

U.S. District Court for the Southern District of Illinois case number 15-cv-338 

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