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.
