Federal District Court Opinions

SCOTT-RILEY v. MULLINS FOOD PRODUCTS, INC., (N.D.Ill. 2005)
SHARIFAH SCOTT-RILEY, Plaintiff, v. MULLINS FOOD PRODUCTS,
INC., and WILLIAM MULLINS, Defendants. Case No. 04 C
1368. United States District Court, N.D. Illinois, Eastern
Division. October 3, 2005

MEMORANDUM OPINION AND ORDER

MATTHEW KENNELLY, District Judge

Sharifah Scott-Riley has sued her former employer, Mullins
Food Products, Inc., for discrimination based on disability
and failure to accommodate under the Americans with
Disabilities Act, 42 U.S.C. § 12112(a); for
discrimination based on race and gender, retaliation, and
creation of a hostile work environment under Title VII of
the Civil Rights Act of 1964, 42 U.S.C. §
2000e-2(a), and 42 U.S.C. § 1981; for retaliatory
discharge in violation of Illinois public policy; and for
intentional infliction of emotional distress under Illinois
common law. Scott-Riley has also sued her former
supervisor, Bill Mullins, for discrimination based on race
and retaliation under 42 U.S.C. § 1981. Both
defendants have moved for summary judgment. For the
following reasons, the Court grants the motion in part and
denies it in part.

Facts

Scott-Riley is an African-American female who worked for
Mullins Food on a full-time basis from December 13, 1999
until her termination on October 18, 2002. Mullins Food is
a Page 2 family-owned business that prepares and sells
specialty foods to the restaurant industry. Scott-Riley
entered the company as a level two laboratory technician in
the quality assurance department after graduating from
Grambling State University. In that position, she tested
fat, moisture, salt, acid, pH, and viscosity in foods
prepared by the company. She also filled in for the
microbiologist from time to time. Mullins Food eventually
promoted Scott-Riley to a level three laboratory
technician, though the parties do not indicate when that
promotion occurred.

On December 29, 2000, Scott-Riley suffered third degree
burns when she accidentally submerged her foot into a
bucket of hot water while cleaning a serialization machine.
Because of the seriousness of the injury, she was out of
work for more than three months. When she returned on April
4, 2001, her physician said she could return on a
part-time, light-duty basis, and Mullins Food accommodated
this limitation by allowing Scott-Riley to work only five
hours a day, Monday through Thursday. On June 4, 2001,
Scott-Riley returned to work on a full-time basis with the
restrictions that she not climb stairs if uncomfortable and
that her work be sedentary. Though employees ordinarily
marked their arrival time by punching a time clock on the
second floor, Mullins Food allowed Scott-Riley to record
her time by completing hand written time sheets so that she
did not have to climb stairs.

Scott-Riley gave birth to a child on March 11, 2002, was
off work for eleven weeks, and returned on May 21, 2002. At
that time, Scott-Riley claims that Tom Mullins, an officer
with Mullins Food, told her to start going upstairs to
punch the time clock. Scott-Riley complained that this
would cause her discomfort, but Tom Mullins said her foot
should be healed by this time. Scott-Riley then complained
to the Director of Human Resources, Donna Hrebec, who told
her that she should not have to climb the stairs if her
doctor’s notes were up to date. From May Page 3 21 to
October 17, Scott-Riley climbed the stairs when her foot
did not hurt — a total of approximately seven times.

In August 2002, Tom Mullins looked into Scott-Riley’s
arrival times by consulting the computerized access system
which records when an employee swipes her key card. The
report revealed that Scott-Riley was tardy eighteen times
from June 27-August 21, though she had noted otherwise on
her hand written time sheets. Tom Mullins believed her
conduct constituted a form of theft. Scott-Riley, maintains
that Charles Wind, her supervisor in the Quality Assurance
Lab, knew that she completed her time sheets in the manner
she did, because he gave her the time sheets for payroll
purposes a week after they should have been completed. She
concedes that she may have been late between June 27 and
August 21, 2002, but insists that Wind excused her tardiness
on these occassions. Scott-Riley claims that Wind knew that
her baby suffered from sleep apnea and allowed her, when
the baby was ill, to arrive late and make up the time at
the end of her shift. Indeed, Wind personally kept
attendance records for each of his employees, and his notes
do not reflect any unexcused tardies for Scott-Riley during
the relevant period of time.

On August 21, 2002, Mike Mullins, Mullins Food’s in-house
counsel, met with Scott-Riley to discuss the discrepancies
between her time sheets and the times the system indicated
she had swiped her keycard. Mike Mullins told her that the
number of tardies was unacceptable and that her timeliness
needed to improve. Later that day, Scott-Riley spoke with
Wind, and he also expressed disapproval of her tardiness.
She told Wind that the baby was making her late, so he
changed her start time from 6:00 a.m. to 6:30 a.m. to
accommodate her. In a August 26 meeting, Tom Mullins
changed Scott-Riley’s start time again, and told her to
swipe the door by 6:25 to Page 4 arrive at her work
station by 6:30.

On August 21 or August 26 (the parties disagree on the
exact date), Mullins Food instituted its formal
disciplinary policy against Scott-Riley. That policy
required a verbal warning after three tardies, a written
warning after four tardies, a suspension after five
tardies, and discharge after six tardies. On August 26,
Scott-Riley received a written warning for arriving to work
at 6:09 a.m. on August 22. Scott-Riley insists she was not
late on August 22 because her start time had already been
changed to 6:30. On September 19, Scott-Riley received a
three day suspension because she arrived to work at 6:28 on
September 12 and 6:29 on September 19. On September 23,
Scott-Riley filed a charge of discrimination with the EEOC,
claiming that similarly situated male, non-black, and
non-disabled employees were not suspended for being tardy.
On October 11, the EEOC issued a letter notifying Mullins
Foods of the charge. Bill Mullins denies receiving the
letter before October 21. On October 17, Scott-Riley swiped
the door at 6:28, and Bill Mullins terminated her
employment.

On March 27, 2003, Scott-Riley filed an amended EEOC
charge alleging that she had experienced a hostile work
environment. She maintains that on several occasions, her
supervisor Charles Wind made derogatory comments about the
predominantly black university she attended, printed jokes
and pictures of naked women, placed the pictures on her
desk, and made comments about the women’s breasts.

Discussion

On a motion for summary judgment, the law requires the
Court to consider the evidence and draw all reasonable
inferences in favor of Scott-Riley, the non-moving party.
FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). The Court must look at the evidence Page
5 “as a jury might, construing the record in the light
most favorable to the nonmovant and avoiding the temptation
to decide which party’s version of the facts is more likely
true.” Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003).

1. Americans With Disabilities Act

The ADA provides disabled persons with two principal
workplace rights. The first prohibits employment
discrimination against a qualified individual with a
disability. 42 U.S.C. § 12112(a). The second
requires employers to provide reasonable accommodations to
individuals with a disability who are otherwise qualified
to perform their job. 42 U.S.C. § 12112(b). To
establish a violation of either right, a plaintiff must
prove that she is disabled within the meaning of the ADA.
Id.

The term “individual with a disability” includes persons
who are actually disabled, those who are regarded as
disabled, and those who have a record of being disabled. 42
U.S.C. § 12102(2). The disability, whether actual or
perceived, must substantially limit the plaintiff in a
major life activity. See Sutton v. United Air Lines, Inc.,
527 U.S. 471, 489 (1999). Scott-Riley claims that she
qualifies as a disabled person under the ADA because she
had an actual disability that substantially limited a major
life activity, or alternatively, because Mullins Food
perceived her to have such a disability. The Court assesses
Scott-Riley’s condition at the time of the adverse
employment action — October 2002 — see, e.g.,
Weiler v. Household Fin. Corp., 101 F.3d 519, 524 (7th Cir.
1996), and at the time of the failure to accommodate-March
2002. Hoeller v. Eaton Corp., 149 F.3d 621, 624 (7th Cir.
1998).

Scott-Riley claims she was disabled because she had
difficulty climbing stairs, walking, driving, and caring
for herself. In her deposition, however, she admitted that
in 2001 she stopped Page 6 having trouble taking care of
herself and began driving on her own. By her own admission,
then, she was not disabled in the major life activities of
driving and caring for herself in 2002. Scott-Riley also
claims that she was disabled in the major life activity of
walking and cites an August 2002 doctor’s note that states,
“[Scott-Riley] cannot climb stairs regularly only when she
feels comfortable doing so due to history of ankle burn.”
She also testified that she had difficulty walking “long
lengths.” This evidence is insufficient to permit a
reasonable jury to find that Scott-Riley had a disability
based on a limited ability to walk. See Puoci v. City of
Chicago, 81 F. Supp. 2d 893, 896-97 (N.D. Ill. 2000)
(plaintiff who walked with a limp, had pain and discomfort
when walking on soft surfaces, experienced numbness and
fatigue in his right leg and thigh when walking, had
difficulty climbing stairs, but did not use a cane or a
crutch and had no medical restrictions on walking, did not
have a disability under the ADA); Banks v. Hit or Miss,
Inc., 996 F. Supp. 802, 806-07 (N.D. Ill. 1998) (plaintiff
who had corrective surgery on both feet, could only walk
short distances, had chronic foot pain, and was limited by
her doctor to working no more than eight hours at a time,
taking fifteen minute breaks every few hours, not working
on a ladder, and wearing lace-up shoes, was not disabled).
Consequently, no reasonable jury could find that
Scott-Riley was actually disabled at the time of her
termination or at the time of the failure to accommodate.

Scott-Riley also claims that even if she was not actually
disabled, Mullins Food regarded her as disabled because it
knew she could not walk up and down stairs. As discussed
above, the inability to regularly climb stairs does not
limit a major life activity. No jury reasonably could find
that Mullins Food regarded Scott-Riley as disabled within
the meaning of the ADA.

2. Discrimination based on race and gender Page 7

a. Termination because of race and gender

Scott-Riley claims that Mullins Food fired her because of
her race and gender in violation of Title VII and 42 U.S.C.
§ 1981 and proceeds under the indirect McDonnell
Douglas v. Green burden-shifting method. 411 U.S. 792, 802
n. 13 (1973). To survive Mullins Food’s motion for summary
judgment, Scott-Riley must establish a prima facie case by
putting forth evidence from which a reasonable jury could
find that she is a member of a protected class, she was
satisfying Mullins Food’s legitimate job expectations, she
was discharged, and other similarly situated non-class
members were treated more favorably. Id. If Scott-Riley
establishes a prima facie case, then the burden shifts to
Mullins Food to put forth a legitimate, non-discriminatory
reason for the termination. Clay v. Holy Cross Hosp., 253
F.3d 1000, 1005 (7th Cir. 2001). If Mullins Food satisfies
its burden, then the inference of discrimination
disappears, and Scott-Riley must put forth evidence from
which a reasonable jury could find that Mullins Food’s
reason was a pretext for discrimination. Id. at 1005-06.

The parties only disagree on the second and fourth elements
of the prima facie case: whether Scott-Riley satisfied
Mullins Food’s legitimate job expectations and whether
other similarly situated non-class members were treated
more favorably. Mullins Food argues that Scott-Riley was
not satisfying its legitimate job expectations at the time
of her termination because she falsified time records and
was tardy twenty-two times between June 27 and October 17.
Scott-Riley testified in her deposition, however, that she
completed the time records as her supervisors, Wind and
Gause, instructed. She said that when Wind and Gause were
doing payroll, they gave her the time sheets to record her
time for the prior week. She said she wrote down her start
and end times, and her supervisors were satisfied.
Scott-Riley also claims that any Page 8 tardiness from
June 27 through August 21 was excused. She points to Wind’s
deposition, in which he testified that his attendance book
would reflect the days that Scott-Riley was tardy or
absent. Wind Dep. at 131-32. Scott-Riley has produced a
photocopy of the book, which does not indicate any
unexcused tardies from June 27 to August 22. Given this
evidence, a jury reasonably could find that Scott-Riley was
satisfying her employer’s legitimate job expectations
during the time immediately preceding her termination.

Scott-Riley also argues that other similarly situated
employees were treated more favorably. To satisfy this
element, Scott-Riley must establish that she received
dissimilar — and harsher — punishment than
that received by similarly situated non-black and male
employees for similar conduct. See Grayson v. O’Neill, 308
F.3d 808, 817 (7th Cir. 2002). In considering whether
employees were similarly situated “a court must look at all
relevant factors, the number of which depends on the
context of the case.” Radue v. Kimberly-Clark Corp., 219
F.3d 612, 617 (7th Cir. 2000). Those factors may include
whether the employees “dealt with the same supervisor” and
were “subject to the same standards.” Id. at 617-18.

Scott-Riley points to Booker Clay, a black male who was
tardy nine times in 2002 but was not suspended or
terminated, and Salvador Correa, a hispanic male who was
allowed at least thirteen tardies before being fired in
2003. Mullins Food argues that Clay and Correa were not
similarly situated because they did not falsify time
records. The issue of whether Scott-Riley falsified time
records is genuinely in dispute, however, and in any event,
Mullins Food concedes that falsification of time sheets was
not the reason it terminated Scott-Riley. Defs.’ Reply at
6. Thus, a jury reasonably could find that Mullins Food
treated similarly situated non-black and male employees
more favorably in the manner it disciplined them for
tardies. Page 9

Because Scott-Riley has provided evidence from which a
jury reasonably could find that she has established a prima
facie case of race and gender discrimination, the burden
shifts to Mullins Food to put forth a legitimate,
non-discriminatory reason for Scott-Riley’s firing. It
claims it fired her for tardiness, so Scott-Riley must
present evidence that this reason is a pretext for sex
discrimination. See Grayson v. O’Neill, 308 F.3d 808, 820
(7th Cir. 2002). Mullins Food’s reason is pretextual if it
had no basis in fact, did not actually motivate Mullins
Food’s decision, or was insufficient to motivate its
decision. Id. The same reason that supports Scott-Riley’s
prima facie case — that similarly situated non-black
and male employees were treated more favorably —
also supports a finding of pretext. See Curry v. Menard,
270 F.3d 473, 479 (7th Cir. 2001) (citing cases). Mullins
Food says it fired Scott-Riley because she violated the
company’s attendance policy. But, as discussed above,
Scott-Riley has put forth evidence indicating that
non-black and male employees violated the same attendance
policy and were not disciplined. A jury reasonably could
find, given this inconsistency, that Scott-Riley’s
tardiness was a pretext for gender discrimination. Id.

b. Retaliation

Scott-Riley may proceed under an adapted burden-shifting
method to prove a claim of retaliation. See Moser v. Ind.
Dept. of Corr., 406 F.3d 895, 903-04 (7th Cir. 2005). The
elements are identical to the McDonnell Douglas test
recited above, except that Scott-Riley must point to a
similarly situated employee who did not file a charge of
discrimination. See Davis v. Con-Way Transp. Cent. Express,
Inc., 368 F.3d 776 (7th Cir. 2004). Clay and Correa, the
similarly situated individuals cited in Scott-Riley’s
gender discrimination claim, are also similarly situated
under the retaliation test. Because Scott-Riley created a
genuine issue of Page 10 material fact with respect to the
other elements of the test, a jury reasonably could find
that Mullins Food retaliated against Scott-Riley for filing
a discrimination charge.

c. Failure to train

Scott-Riley claims that Mullins Food failed to provide
crucial on-the-job training that would have been considered
favorably in promotional opportunities, though it trained
other whites and non-blacks in those same areas.
Specifically, she claims that other lab technicians outside
her protected class were trained on how to complete
ingredient statements and hazard analysis critical control
point plans (“HACCP” plans), though she was not. Because
Scott-Riley did not present direct evidence of Mullins
Food’s discriminatory failure to train, the Court again uses
the McDonnell Douglas burden-shifting formula. McDonnell
Douglas, 411 U.S. at 802-05; Malacara v. City of Madison,
224 F.3d 727, 729 (7th Cir. 2000). To establish a failure
to train claim, Scott-Riley must demonstrate that she is a
member of a protected group, that Mullins Food provided
training to its employees, that she was eligible for
training, and that she was not provided training under
circumstances giving rise to an inference of
discrimination, i.e., that she was denied training given to
other similarly situated employees who were not members of
the protected group. Malacara, 224 F.3d at 729.

Mullins Food does not address these elements in its briefs.
It does not contest that Scott-Riley was a member of a
protected group, that Mullins provided the training, that
Scott-Riley was eligible for the training, or that other
similarly situated non-black and male employees outside her
protected group received the training. Consequently, the
burden shifts to Mullins Food to articulate a
non-discriminatory reason for the failure to train. It
argues in its reply brief that it failed to train
Scott-Riley because she did not ask for the training. In
her deposition, Page 11 however, Scott-Riley unequivocally
testified that she expressed interest in learning how to do
HACCP plans and ingredient statements after Dia
Rizmanovski, the person who previously performed those
tasks, left the company. As a result, a jury reasonably
could find that Mullins Food’s reason for not training
Scott-Riley was a pretext for race and sex discrimination.

d. Failure to promote

Scott-Riley claims that Mullins Food denied her
promotional opportunities, but neither her brief nor her LR
56.1 Statement identify a specific position she applied for
and was denied. This is fatal to her failure to promote
claim. See Grayson v. City of Chicago, 317 F.3d 745, 748
(7th Cir. 2003) (establishing elements of prima facie
case).

e. Disparate pay rate

Scott-Riley claims that Mullins Food paid other similarly
situated white and male employees a higher hourly wage, and
offers Booker Clay, a black male, as a comparative. She
claims that when she returned to work in April 2001, she
discovered that Mullins Food paid Clay more money though he
performed similar work. Even if her allegations are true,
however, the claims is time-barred, because Scott-Riley’s
EEOC charge was filed more than 300 days after she
discovered the pay differential. See Perra v. Flexonics,
Inc., 727 F. Supp. 406, 412 (N.D. Ill. 1989). Scott-Riley
makes no argument for tolling the limitations period.

f. Racial Harassment

Scott-Riley claims that she was subjected to a hostile
work environment because of her race. She says that in
department meetings, Wind suggested that she was unable to
answer his questions because she attended Grambling State,
a predominantly black university. She claims that Wind made
these comments all the time, but clarified in her
deposition that she only recalled Page 12 him making the
comments twice. Scott-Riley Dep. at 32-33. To succeed on
her racial harassment claim, Scott-Riley must show that she
was subject to unwelcome racial harassment that
unreasonably interfered with her work performance by
creating an intimidating, hostile, or offensive working
environment and seriously affected her psychological
well-being. Hrobowski v. Worthington Steel Co., 358 F.3d
473, 476 (7th Cir. 2004). The plaintiff must show that the
workplace was both subjectively and objectively hostile.
Harris v. Forklift Sys. Inc., 510 U.S. 17, 21-22 (1993).
This means that the plaintiff must have perceived the
workplace as racially hostile or abusive, and that a
reasonable person would have regarded it as such. Id.

No reasonable jury could find that the incidents of which
Scott-Riley complains satisfied the objective part of the
test. Though rude and unprofessional, Wind’s conduct
consisted of a few isolated comments that were not
physically threatening. See Luckie v. Ameritech Corp. 389
F.3d 708, 714 (7th Cir. 2004); Aguilera v. Vill. of Hazel
Crest, 234 F. Supp. 2d 840, 847-48 (N.D.Ill. 2002)
(comments making fun of plaintiff’s poor English skills,
telling him he was not American enough, and that he should
work in a district with more minorities, not severe enough
to be actionable). As a result, Scott-Riley cannot establish
an actionable claim for a hostile work environment based on
race.

g. Sexual harassment

Scott-Riley claims that she suffered a hostile work
environment based on her gender in violation of Title VII
and 42 U.S.C. § 1981. Mullins Foods argues that
sexual harassment is not actionable under § 1981,
that Scott-Riley’s claims are time-barred, and that the
alleged harassment was not sufficiently severe to be
actionable. The first argument is easily resolved.
Gender-based discrimination is not actionable under §
1981. Runyon v. McCrary, 427 U.S. 160, Page 13 167
(1976); St. Louis v. Alverno Coll., 744 F.2d 1314, 1317
(7th Cir. 1984).

The Court next considers whether Scott-Riley is
time-barred from relying on certain evidence occurring
outside the relevant period of limitations. Scott-Riley
claims that she should benefit from the well-recognized
continuing violation doctrine. See Nat’l R.R. Corp. v.
Morgan, 536 U.S. 101, 117 (2002). The doctrine recognizes
that “a hostile work environment is composed of a series of
separate acts that collectively constitute one `unlawful
employment practice'” and allows a plaintiff to rely on
acts occurring outside of the statute of limitations period
to establish a hostile environment claim. Id. (quoting 42
U.S.C. § 2000e-5(e)(1)).

Mullins Food argues that the continuing violation doctrine
is not applicable where a plaintiff suffers a pattern of
repeated harassment over many years and it becomes evident
before the limitations period that she is the victim of
actionable sexual harassment. See Hardin v. S.C. Johnson &
Son, Inc., 167 F.3d 340, 344 (7th Cir. 1999). Though it is
true that the Seventh Circuit once recognized this
limitation to the continuing violation doctrine, it is not
good law after Morgan. Morgan, 536 U.S. at 117 (“[p]rovided
that an act contributing to the claim occurs within the
filing period, the entire time period of the hostile
environment may be considered by a court for the purposes
of determining liability.”) Now, an employer who believes
an employee waited too long to bring a hostile work
environment claim must rely on traditional equitable
defenses such as laches. See id. at 121. Mullins Food has
not asserted such a defense in its motion.

In this case, Wind allegedly printed out pictures of naked
women and made comments about their breasts every other day
until Scott-Riley was fired. Because a jury reasonably
could find that some illegal acts contributing to
Scott-Riley’s gender-based hostile environment claim Page
14 occurred within the filing period, the continuing
violation doctrine allows her to rely on the entire period
of sexual harassment to establish her claim.

The parties address only one other issue with respect to
Scott-Riley’s gender-based hostile environment claim:
whether Wind’s alleged harassment was sufficiently severe.
In determining whether a work environment is hostile, the
Court considers a number of factors, including 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 environment.” Faragher
v. City of Boca Raton, 524 U.S. 775, 788 (1998) (internal
citation omitted). The harassment Scott-Riley allegedly
endured, even for the four-and-a-half months she worked
within the statute of limitations period, was sufficiently
hostile to be actionable. Though pornographic pictures not
directed at a plaintiff (i.e., so called “second-hand
harassment”) may not constitute a hostile environment, see
True v. Mesirow Fin., Inc., 118 F.3d 1134, 1145 (7th Cir.
1997); Flynn v. Mid-States Screw Corp., No. 99 C 50258,
2001 WL 789411, *4 (N.D. Ill. July 11, 2001), pictures of
naked women repeatedly placed on a plaintiff’s desk are
different. See Baskerville v. Culligan Int’l Co., 50 F.3d
428, 430 (7th Cir. 1995) (stating that actionable sexual
harassment includes exposure to pornographic pictures).

3. State law retaliation

Scott-Riley claims that Mullins Food, in violation of
Illinois public policy, fired her because she filed a
worker’s compensation claim in April 2001. See Hartlein v.
Ill. Power Co., 151 Ill. 2d 142, 160, 601 N.E.2d 720, 728
(1992). To survive summary judgment on this claim,
Scott-Riley must put forth evidence from which a jury
reasonably could find the worker’s compensation claim
caused her termination. See Vorpagel v. Maxwell Corp. of
America, 333 Ill. Page 15 App. 3d 51, 57, 775 N.E.2d 658,
664 (2002). In Illinois, a plaintiff can prove causation
even when the protected activity and adverse action are
temporally remote. Id.

Because Scott-Riley has produced evidence that Mullins
Food’s reason for terminating her was pretextual, i.e.,
that other similarly situated employees were tardy but not
terminated, a jury reasonably could find that her
termination was caused by the worker’s compensation claim.
Though the time between the protected activity and her
termination is lengthy, Illinois courts do not regard this
as controlling. The issue is best resolved by a jury.

4. Intentional infliction of emotional distress

Mullins Food moved for summary judgment on Scott-Riley’s
claim for intentional infliction of emotional distress, but
Scott-Riley failed to address the claim in her response
brief. The claim is deemed to have been abandoned.
Laborers’ Int’l Union of N. Am. v. Caruso, 197 F.3d 1195,
1197 (7th Cir. 1999) (stating that arguments not presented
to the district court in response to summary judgement
motions are waived).

5. Claims against Bill Mullins

Scott-Riley sued Bill Mullins in his individual capacity
under 42 U.S.C. § 1981 for race discrimination and
retaliation. Mullins is alleged to have participated in the
decision to terminate Scott-Riley, which (as discussed
earlier) a jury reasonably could find was retaliatory and
because of Scott-Riley’s race. Mullins’ motion for summary
judgment is denied with respect these claims. A jury could
also reasonably find that Scott-Riley did not receive
training because of her race. However, she did not allege
that Bill Mullins participated in that decision. Therefore,
Mullins’ motion for summary judgment is granted with respect
to this claim. Page 16

CONCLUSION

For the foregoing reasons, the Court grants defendants’
motion for summary judgment in part and denies it in part
[docket no. 55]. Mullins Food is entitled to summary
judgment on Scott-Riley’s ADA, failure to promote,
disparate pay, racial harassment, and intentional
infliction of emotional distress claims. Mullins Food’s
motion is otherwise denied. Bill Mullins is entitled to
summary judgment on Scott-Riley’s failure to train claim.
Bill Mullins’ motion is otherwise denied. The case is set
for status hearing on October 13, 2005 at 9:30 a.m. for the
purpose of discussing the possibility of settlement. Page 1