By way of background, the employee worked at an emergency shelter for a nonprofit agency that ran the shelter, a soup kitchen, and other services for the needy. A shelter resident complained to the agency’s executive director that she had been frightened by the employee, who had reprimanded her for not completing assigned chores and then threatened to evict her. The executive director, along with the employee’s direct supervisor, spoke to him about the incident and warned that future misbehavior could result in disciplinary action. Riled, the employee denied the resident’s allegations and filed a charge of race discrimination and retaliation with the EEOC; he then filed a Title VII suit, which was eventually dismissed. Meanwhile, though, four days after he filed suit, another supervisor complained to the executive director about an incident in which he’d been “frightened and humiliated” by the employee. Again, the executive director and immediate supervisor spoke to the employee and issued a warning about his intimidating conduct. They contended that after that meeting, the employee falsely accused staff members and members of the agency’s board of directors of lying and of trying to get him fired (accusations the employee denied). They also claimed that, nine days after the latest reprimand (on October 14), the pair had a meeting at which they decided to fire him. However, the day before he had been admonished a second time, the employee had gone to the EEOC once again; he filed a second charge contending he was being discriminated against based on his race and his previous EEOC charge. The agency officials learned of the second charge on October 19, and the next day he was fired, prompting a second lawsuit alleging retaliation. The agency insisted that the discharge decision was made five days earlier and for wholly unrelated reasons, and it was able to convince the district court as much.
According to the Court of Appeals, the problem was, the employer dawdled; they didn’t fire the employee when they claimed they made the decision to do so. “We can’t know how long they would have dawdled—but it is a possible inference that they fired him on the twentieth rather than later (or maybe never) because the filing of his second EEOC charge, which they learned about the day before, was the last straw,” Judge Posner speculated for the court. “An EEOC charge is often a preliminary to a suit. His first EEOC charge had eventuated in a suit; the second was likely to as well; how many more would there be?” Particularly in light of the suspicious timing, the appeals court deemed it quite plausible that, were it not for his filing of the second charge, the agency’s (ostensibly) sharpened ax might never have fallen. Moreover, the employer submitted a supplementary memorandum identifying the date of that fateful meeting as “on or about” October 14, yet the defense hinged on the meeting having taken place on that date. And the appeals court presumed that the officials would have had precise knowledge of the date. Making matters worse, in interrogatories, one of the officials said he didn’t remember the specific date that the meeting took place. Also unconvincing, in the court’s eyes, was the employer’s assertion that the supervisor would have executed the firing earlier, but he had been working 12-hour shifts at his other job and so was prevented from meeting with the doomed employee. The supervisor offered no supporting evidence to back up his work schedule claim and, at any rate, the court pointed out that there were other opportunities to effectuate the termination in the days following the alleged meeting, and other agency officials who could have done so.
There were still other problems with the case that made the appeals court “wonder what was really going on”: The two officials who decided to fire the employee each submitted one-page affidavits that look to have simply “parroted” language inserted by lawyers—and which appeared to have run afoul of Rule 56’s requirement that the affidavit of a lay witness be based on the witness’s personal knowledge. Personal knowledge was crucial in this particular case, the court observed, because while the pair contended that they fired the employee for making false accusations, they had no personal knowledge of such false accusations, and their allegation that he made them was hearsay. Even the reference to “false allegations,” set forth as well in the employer’s memorandum in support of summary judgment, troubled the court. The “allegations” may well have been referring to the employee’s first or second EEOC charge, for all the court knew, in which case the firing decision would have been retaliatory. In addition, the employee alleged that when he was finally summoned to meet with his supervisor, he was asked, before being fired, whether he had filed a second EEOC charge, and he acknowledged that he had indeed. As the court saw it, the implication was that, had he said “no,” the supervisor might have delayed his discharge until he could verify whether the denial was truthful. And if so, then the firing was retaliatory. Finally, in response to the employee’s second EEOC charge, the agency lawyer wrote to the EEOC that the employee was terminated “on October 20” and “subsequent to his display of defiant and insubordinate behavior towards his immediate supervisor.” That conflicted with the stated basis for discharge: false accusations and mistreatment of coworkers and residents occurring prior to October 14. And the letter to the EEOC did not state that the decision to terminate was made on October 14—yet another indication, in the court’s view, “that the defendants may have concocted that date.” Accordingly, the Seventh Circuit reversed the grant of summary judgment in the employer’s favor.