Curtis Turner et al v. The American Bottling Company et al

Filing 101

MEMORANDUM Opinion and Order written by the Honorable Gary Feinerman on 2/26/2019.Mailed notice.(jlj, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CURTIS TURNER and TYRONE ST. JOHN,
Plaintiffs,
vs.
THE AMERICAN BOTTLING COMPANY, DR
PEPPER SNAPPLE GROUP, INC., DR PEPPER
SNAPPLE BOTTLING GROUP, INC., and DR
PEPPER/SEVEN UP, INC.,
Defendants.

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17 C 4023
Judge Gary Feinerman

MEMORANDUM OPINION AND ORDER
Curtis Turner and Tyrone St. John bring this suit against their former employer, The
American Bottling Company, under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§§ 2000e et seq., and the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621
et seq., alleging that they were fired due to their race and age. Doc. 23. (There are other
defendants, but they may be ignored for present purposes.) Discovery ensued, and American
Bottling moved to bar Plaintiffs from relying on certain parts of Turner’s deposition testimony.
Doc. 55. The court entered and continued the motion, noting that it would address the matter if
Plaintiffs attempted to use the disputed testimony on summary judgment or at trial. Doc. 60.
American Bottling now moves for summary judgment. Doc. 71. Because Plaintiffs cite the
disputed testimony in opposing summary judgment, American Bottling renews its motion to bar,
and also moves to strike portions of Plaintiffs’ Local Rule 56.1(b)(3)(B) response. Doc. 87. The
summary judgment motion is denied, the original motion to bar is denied as moot, and the
renewed motion to bar and strike is denied in part and denied as moot in part.

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Background
A few preliminary issues before turning to the facts. First, where American Bottling’s
denials of assertions in Plaintiffs’ Local Rule 56.1(b)(3)(C) statement of additional facts merely
establish genuine factual disputes, Doc. 86 at ¶¶ 1-5, 8-10, 13, 31-32, 42, those disputes are
resolved in favor of Plaintiffs, the nonmovants. See Johnson v. Advocate Health & Hosps.
Corp., 892 F.3d 887, 893 (7th Cir. 2018). Second, the court will disregard the portions of
American Bottling’s response to Plaintiffs’ Local Rule 56.1(b)(3)(C) statement, Doc. 86 at ¶¶ 2,
4-6, 10, 19, 21, 34, 52, 59, 65, that present legal arguments inappropriate for a Local Rule 56.1
submission. See Curtis v. Costco Wholesale Corp., 807 F.3d 215, 219 (7th Cir. 2015)
(“[D]istrict courts are not required to wade through improper denials and legal argument in
search of a genuinely disputed fact.”) (internal quotation marks omitted); Sys. Dev. Integration,
LLC v. Comput. Scis. Corp., 739 F. Supp. 2d 1063, 1068 (N.D. Ill. 2010) (“[T]he purpose of
[Local Rule 56.1 submissions] is to identify the relevant evidence supporting the material facts,
not to make factual or legal arguments, and thus the Court will not address the parties’ arguments
made in their [Local Rule 56.1 submissions].”) (citation omitted).
Third, American Bottling’s motion to strike portions of Plaintiffs’ Local
Rule 56.1(b)(3)(B) response is denied to the extent it argues, as to ¶¶ 61, 78, and 79, that
Plaintiffs may not rely on their own testimony to contest American Bottling’s account of what
they said during its investigation into their alleged workplace misconduct. Doc. 87 at ¶ 6.
American Bottling neither develops nor cites any authority for its position, thus forfeiting the
issue. See M.G. Skinner & Assocs. Ins. Agency v. Norman-Spencer Agency, Inc., 845 F.3d 313,
321 (7th Cir. 2017) (“Perfunctory and undeveloped arguments are waived, as are arguments
unsupported by legal authority.”). In any event, American Bottling’s argument fails on the

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merits because settled law holds that a nonmovant’s testimony may create a genuine factual
dispute on summary judgment. See Hill v. Tangherlini, 724 F.3d 965, 967 & n.1 (7th Cir. 2013)
(overruling cases suggesting that a plaintiff’s “self-serving” testimony is insufficient to create a
genuine factual dispute); Paz v. Wauconda Healthcare & Rehab. Cent., LLC, 464 F.3d 659, 664
(7th Cir. 2006) (“We have long held that a plaintiff may defeat summary judgment with his or
her own deposition.”).
The following facts are set forth as favorably to Plaintiffs, the nonmovants, as the record
and Local Rule 56.1 permit. See Johnson, 892 F.3d at 893. On summary judgment, the court
must assume the truth of those facts, but does not vouch for them. See Donley v. Stryker Sales
Corp., 906 F.3d 635, 636 (7th Cir. 2018).
A.

The Key Players

Turner, an African-American man who was nearly 47 years old at the time of his firing,
worked from 2012 through 2015 as a production manager at the American Bottling facility in
Northlake, Illinois. Doc. 78 at ¶¶ 1, 3, 16. St. John, an African-American man who was 48
when he was fired, worked at the Northlake facility from 2008 through 2015, initially as a
supervisor, then as a production manager, and finally as a maintenance manager. Id. at ¶¶ 2-3,
12-13, 15, 18. Turner and St. John first worked together at a plant in Williamson, New York,
where they started in late 1997 alongside Daniel Graham, a white man who years became plant
manager at the Northlake facility. Id. at ¶¶ 9-11.
In 2008, Graham offered St. John a supervisor position at the Northlake facility, and
St. John transferred there from the Williamson plant. Id. at ¶¶ 12-13. The next year, St. John
was promoted to production manager with Graham’s support. Id. at ¶ 15. In September 2014,
again with Graham’s support, St. John made a lateral move, which came with a raise, to

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maintenance manager. Id. at ¶ 18. In 2012, Graham hired Turner as a production manager at
Northlake. Id. at ¶ 16. During his time at Northlake, Turner received two or three raises, which
Graham supported. Id. at ¶ 17.
Aside from Plaintiffs, all managers at Northlake were white. Doc. 86 at ¶ 68. Among
those other managers was Bogdan Jaba, who ultimately was fired along with Plaintiffs. Doc. 78
at ¶ 3. Jaba is Romanian, speaks with an accent, and was 41 years old when he was fired. Id. at
¶ 101; Doc. 86 at ¶ 65.
B.

Plaintiffs’ Terminations

The facts surrounding Plaintiffs’ terminations are complicated and hotly disputed. For
summary judgment purposes, it suffices to set out the rough outlines of Plaintiffs’ version of
events to the extent it finds support in the record. Plaintiffs and Jaba were fired on
November 24, 2015, following an investigation by Samantha Hughes, a human resource (“HR”)
manager at the Northlake facility, and Leon Ferguson, an HR director based in Texas. Doc. 78 at
¶¶ 36, 73, 80; Doc. 73-11 at 95. All three received termination letters signed by Graham and
giving this explanation:
As a result of a recent investigation into the hiring of two (2) employees, it has
been confirmed that you violated the Dr Pepper Snapple Group Code of
Conduct in response to your responsibilities and accountabilities as [a]
Manager at the Northlake Plant facility. You failed to follow established
guidelines and practices regarding the interviewing process. As a result of
your involvement, you failed to comply with our Code of Conduct and
fulfilling your obligations and meeting my expectations and those of the
Company as a manager in my organization.
Doc. 73-11 at 61-62, 64; Doc. 78 at ¶ 80. The two employees whose hiring was investigated
were Vernell Sanders—the stepsister of St. John’s stepbrother—and Melvin Sellers, her
significant other. Doc. 78 at ¶ 33; Doc. 86 at ¶ 1. St. John referred Sanders and Sellers for open

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positions at the Northlake facility. Doc. 78 at ¶ 35; Doc. 86 at ¶¶ 3-4. Turner hired Sanders, and
Jaba hired Sellers. Doc. 78 at ¶¶ 45, 49.
Graham decided to fire Plaintiffs and Jaba during a conference call with Hughes,
Ferguson, Fernando Cortes (then the senior vice president of supply chain), and Stan Wood (vice
president of human resources) the morning of November 24, 2015. Id. at ¶ 75; Doc. 86 at ¶¶ 8-9.
After Hughes and Ferguson walked through the findings of their investigation, Graham
recommended firing Plaintiffs, and Cortes indicated his approval. Doc. 86 at ¶ 9. Cortes
testified that although he had the authority to fire Plaintiffs and had approved Graham’s
recommendation, it was Graham who ultimately made the decision. Id. at ¶¶ 9, 12.
As to the justification for firing St. John, Graham testified that St. John violated
American Bottling’s hiring practices (1) by failing to disclose to Graham and HR that Sanders
and Sellers were “folks that he knew” and “[p]otentially relatives,” and (2) by improperly
influencing Turner and Jaba to hire Sanders and Sellers. Id. at ¶ 14; Doc. 84-7 at 3-4. Graham
testified that he formed the latter belief based on Turner’s statements to Hughes and Ferguson
regarding the circumstances of Sanders’s and Sellers’s hiring. Doc. 86 at ¶ 14; Doc. 78 at ¶ 79;
Doc. 73-11 at 33-34. But the interview in which Turner told Hughes and Ferguson that he had
felt pressure to move forward with the hiring process (but not specifically to hire Sanders and
Sellers) happened after the November 24, 2015 conference call in which Graham decided to fire
Plaintiffs. Doc. 78 at ¶ 79; Doc. 86 at ¶¶ 8, 10-11; Doc. 73-11 at 33-34. Graham also testified
that he fired St. John for being untruthful during the investigation by failing to admit that he had
pressured Turner and Jaba about the hirings. Doc. 86 at ¶ 14.
As to the justification for firing Turner, Graham testified that Turner violated American
Bottling’s hiring practices (1) by interviewing Sanders by phone instead of onsite and (2) by

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allowing St. John to influence the hiring process. Id. at ¶ 15. Graham also claimed that Turner
was untruthful during the investigation, in that Turner admitted only in his final interview with
Hughes and Ferguson that he had felt pressured by St. John. Ibid. Graham gave similar reasons
for terminating Jaba, with the added concern that Jaba violated American Bottling’s hiring
practices by hiring Sellers without interviewing all candidates for the position in question. Id. at
¶ 16.
Plaintiffs dispute Graham’s explanations, contending that he authorized the conduct into
which he later launched an investigation and upon which he ultimately based the terminations.
Doc. 79 at 6; Doc. 86 at ¶¶ 3, 7, 31. St. John testified that in May 2015, before Sanders and
Sellers applied for positions at the Northlake facility, he told Graham about his relationship to
them—and specifically that he shared a stepbrother with Sanders—and that Graham told him to
“go ahead and have them apply.” Doc. 86 at ¶¶ 2-3. And Turner testified that Graham gave him
permission to interview Sanders and Sellers by phone rather than onsite because they lived in
North Carolina. Id. at ¶ 31. Turner also testified that he explained to Hughes his understanding
of the relationship between St. John and Sanders—that Sanders was St. John’s stepbrother’s
stepsister—and testified that he had received Hughes’s approval to call Sanders to determine
whether she was related to St. John “by blood.” Id. at ¶ 32. (Sanders confirmed that she and St.
John were not related by blood. Doc. 78 at ¶ 56.)
Graham requested the investigation on November 16, 2015 after a conversation in which
St. John told him that Sanders had been hired. Doc. 78 at ¶¶ 52-53; Doc. 73-15 at 4. In that
conversation, Graham asked St. John, “[W]hy didn’t you tell me about your sister before?”
Doc. 78 at ¶ 52. St. John replied, “[W]e have talked about this or you would not have known she
was related.” Ibid.; Doc. 73-15 at 4. After that conversation, Graham brought Sanders’s and

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Sellers’s hiring to Hughes’s attention. Doc. 78 at ¶ 52; Doc. 86 at ¶ 7. Hughes and Ferguson led
the investigation. Doc. 78 at ¶ 53. It is unclear from the record what Graham told the
investigators; there is no indication that he acknowledged knowing about or authorizing the
conduct that was being investigated.
Hughes prepared rough transcripts of the interviews she conducted during the
investigation, but the parties dispute whether she took contemporaneous notes at every interview.
Compare Doc. 78 at ¶ 68 (American Bottling asserting that she did, but citing testimony
addressing only her interviews with Turner, Doc. 73-6 at 13; Doc. 73-8 at 34), with Doc. 78 at
¶ 68 (Plaintiffs denying American Bottling’s assertion as to interviews other than Turner’s, and
citing St. John’s testimony that Hughes did not take notes during his interview, Doc. 84-2 at 30).
Plaintiffs contend that Hughes’s notes include some things that Plaintiffs never said and omit
some things that they did say. Doc. 78 at ¶¶ 61, 68, 78; Doc. 84-2 at 31-33; Doc. 84-5 at ¶¶ 1-2.
The forms to which Hughes appears to have attached her notes include places for both her and
the interviewee to sign, but only she signed them. Doc. 73-11 at 8-35.
Graham ultimately replaced Plaintiffs with two white men from an “emerging leader”
program he supervised—one in his late 20s, and the other in his early 30s. Doc. 86 at ¶¶ 52-54,
56-57. Both had started at Northlake in Summer 2015. Id. at ¶ 57. Jaba was replaced by a white
man younger than 40 and not from a foreign country. Id. at ¶ 55.
In a letter dated December 8, 2015, Turner sought an investigation into his termination,
explaining that he had followed the proper hiring process. Doc. 78 at ¶ 84; Doc. 73-10 at 3-5.
Turner acknowledged that St. John had sometimes described Sanders as his “sister,” but wrote
that both St. John and Sanders had explained that she was not St. John’s “blood sister” or
stepsister. Doc. 78 at ¶ 84; Doc. 73-10 at 3. Turner did not say whether he had provided that

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information to Graham or HR. Doc. 78 at ¶ 84. Turner’s letter does not address whether it was
appropriate to hire Sanders without an onsite interview. Doc. 73-10 at 3-5.
C.

Graham’s Alleged Animus

During St. John’s tenure at the Northlake facility, Graham made racially charged
comments to him “all the time.” Doc. 86 at ¶ 62. Graham would say, “I’m not racist, I have
black dishes.” Ibid. And when St. John spoke in a professional manner, Graham would tell him
“that’s mighty white of you.” Ibid.
On several occasions, Graham told Turner that he wanted Turner to fire Russell Cross
and Richard Bibbs, who are African-American. Id. at ¶ 63. Turner refused because he did not
think that there was sufficient reason to fire them. Ibid. When Turner, Graham, and Hughes
were considering two candidates for a production supervisor position, one white and the other
African-American, Graham said that he preferred the white candidate, even though Turner,
Hughes, and another employee thought the African-American candidate was more qualified. Id.
at ¶ 64. Three or four months before Graham fired Plaintiffs, he told them that he “did not stand
a chance” romantically with Hughes because he was not African-American. Id. at ¶ 61.
Michael Kurucz, a production line manager who reported to Graham, testified that he had
a conversation with Graham in November 2017 about potential candidates for a team leader
position, one of whom was Sanders. Id. at ¶¶ 58-59. According to Kurucz, Graham said that
Sanders would not receive the promotion because “she’s no different than her no good nigger
brother Tyrone[;] he doesn’t know when to keep his mouth shut.” Ibid. (citing Doc. 84-11 at 57). Shortly thereafter, Kurucz had a conversation with Graham about a conflict involving some
African-American and Hispanic employees, in which Graham told Kurucz to “be careful around
these people” and that “it’s kind of weird that they’re not all sticking together.” Id. at ¶ 60.
According to Kurucz, Graham also compared the culture at the Northlake facility to a bag of
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M&Ms, explaining that “usually the brown ones stick together, but in this case they’re at the
bottom of the bag.” Ibid. Kurucz understood these comments to be racially derogatory. Ibid.
According to Turner, Graham occasionally made fun of Jaba “by imitating him using the
same type of accent.” Id. at ¶ 65. Turner heard Graham do so as recently as mid-2015. Ibid.
Graham also asked Jaba to repeat himself “for no good reason.” Ibid.
Graham made age-related comments as well. According to Turner, Graham “would say
how [Cortes] needed to improve his team. How he needed to get some fresh blood in. How he
needed to go into a different direction.” Doc. 78 at ¶ 87 (quoting Doc. 73-8 at 37); Doc. 86 at
¶ 67. And months before firing Plaintiffs, Graham responded to Turner’s hiring “a seasoned lady
supervisor and another gentleman that was potentially going to be a lead” by saying “man,
they’re old. You need to get some fresh blood in here.” Doc. 78 at ¶ 88 (quoting Doc. 73-8 at
37); Doc. 86 at ¶ 66.
D.

Text Messages Acquired After Plaintiffs’ Termination

St. John turned over his company phone after he was fired. Doc. 78 at ¶ 82. American
Bottling examined the phone and discovered text messages he had exchanged with Sanders and
Sellers. Ibid. The texts indicate that from September 15-17, 2015, St. John encouraged Sanders
and Sellers to quickly complete their employment applications. Id. at ¶¶ 35, 37-40; Doc. 86 at
¶ 22; Doc. 73-11 at 52-57. Although St. John wrote that “we had to reopen the job posting for
you” and that “I can’t keep it open too much longer they are looking for it,” Doc. 73-11 at 53,
56; Doc. 78 at ¶¶ 35, 39, he in fact did not have control over how long the posting stayed open,
Doc. 86 at ¶ 23. Rather, St. John sent the texts “because Sellers was slow in applying.” Doc. 86
at ¶ 22. Hughes does not know whether St. John kept the position open longer than appropriate
and did not recall what led her to believe that he had done so. Id. at ¶ 21.

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At one point during the application process, Sanders texted St. John: “Hey Ty one of the
question I just put you as a reference then they ask do I have family work with the company
didn’t know to say yes or no left it blank til later.” Doc. 73-11 at 55; Doc. 78 at ¶ 38. St. John
replied: “That fine they are looking at it soon … .” Doc. 73-11 at 55; Doc. 78 at ¶ 38.
After a senior recruiter determined that Sellers did not meet the minimum qualifications
for the machine operator position for which he first applied, Sanders texted St. John that she “had
[her] second interview” and asked, “[D]o you think they would give me the job and if so what he
going to do about [Sellers] are he still going to bring him in though [sic] the temp agency.”
Doc. 78 at ¶ 43 (quoting Doc. 73-11 at 57). St. John replied, “Yes I will talk to him shortly.”
Ibid. (quoting Doc. 73-11 at 57). St. John followed up a few days later: “Have [Sellers] apply for
the sanitation tech it is more money and let me know when it is done.” Doc. 73-11 at 58;
Doc. 78 at ¶ 44. Hughes testified that St. John was permitted to recommend that Sellers apply
for the position. Doc. 86 at ¶ 24.
After Sanders started work, St. John asked how her first day had gone, and Sanders
texted: “It was great. … [D]on’t worry nobody would ever know we related they very noise [sic]
around there I don’t do much talking I like my work to speak for itself looking forward to
learning more … .” Doc. 73-11 at 60; Doc. 78 at ¶ 50. St. John testified that he had told Hughes
that he did not want “the people on the floor” to know he had referred Sanders and Sellers for
employment “because he was a manager and did not want anyone to treat them differently
because of that.” Doc. 86 at ¶ 4.
Discussion
I.

Liability
As noted, Plaintiffs allege that American Bottling violated Title VII and the ADEA by

firing them due to their race and age. Title VII makes it “unlawful … for an employer … to
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discharge … or otherwise to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such individual’s race,
color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). The ADEA “makes it
unlawful for an employer … ‘to discharge … or otherwise discriminate against any individual
with respect to his compensation, terms, conditions, or privileges of employment, because of
such individual’s age.’” Carson v. Lake Cnty., 865 F.3d 526, 532 (7th Cir. 2017) (quoting 29
U.S.C. § 623(a)(1)). Under the framework set forth in Ortiz v. Werner Enterprises, Inc., 834
F.3d 760 (7th Cir. 2016), an ADEA or Title VII claim survives summary judgment if the plaintiff
presents evidence that, considered as a whole, would allow a reasonable jury to find that his
protected characteristic caused the adverse employment action. See Skiba v. Ill. Cent. R.R. Co.,
884 F.3d 708, 719-20 (7th Cir. 2018); Carson, 865 F.3d at 532-33.
According to American Bottling, the record indisputably shows that Plaintiffs were fired
because its decisionmakers honestly believed, based on Hughes’s investigation, that Plaintiffs
violated company hiring policies and practices and lied about it during the investigation.
Doc. 72 at 2. Plaintiffs respond with record evidence suggesting that the investigation was a
pretext to cover up Graham’s discriminatory motives—specifically, that Graham knew about
St. John’s relationship with Sanders and Sellers, authorized St. John to refer them for
employment, and authorized Turner to conduct phone interviews instead of onsite interviews, but
then turned around and reported that very conduct to HR, withheld from the investigators the fact
that he had authorized that conduct, and invoked the results of the investigation as an excuse for
firing Plaintiffs. Doc. 79 at 6, 15. A jury need not reach those conclusions, but it reasonably
could on the present record, which means that American Bottling is not entitled to summary
judgment. See McKinney v. Office of the Sheriff of Whitley Cnty., 866 F.3d 803, 810-13 (7th Cir.

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2017) (holding that the plaintiff’s evidence, including his own testimony, that “he was fired for
conduct that supervisors expressly authorized” supported an inference that his employer’s stated
rationale for firing him “was not merely mistaken but dishonest”); Harden v. Marion Cnty.
Sheriff’s Dep’t, 799 F.3d 857, 865 (7th Cir. 2015) (noting that summary judgment is
inappropriate where the jury could find “that the relevant decisionmaker[] … did not legitimately
rely on the investigator[’s] conclusions in terminating” the plaintiff).
American Bottling counters that no reasonable jury could believe Plaintiffs’ version of
events because it is “based solely on their own deposition testimony” and contradicted by
Hughes’s contemporaneous notes of what they told her during the investigation, Turner’s
December 2015 letter, and St. John’s text messages. Doc. 85 at 9-10. That is an argument for
the jury, not for the court on summary judgment. See Johnson, 892 F.3d at 893 (“As we have
said many times, summary judgment cannot be used to resolve swearing contests between
litigants.”) (internal quotation marks omitted); McKinney, 866 F.3d at 814 (“[T]he [district] court
was wrong to discount McKinney’s testimony as ‘self-serving, speculative, and conclusory.’
Our cases for at least the past fifteen years teach that [s]elf-serving affidavits can indeed be a
legitimate method of introducing facts on summary judgment.”) (some internal quotation marks
omitted); Rasho v. Elyea, 856 F.3d 469, 477 (7th Cir. 2017) (“[The plaintiff’s] credibility and the
weight to be afforded his testimony is a matter for a jury to decide.”). In any event, the evidence
cited by American Bottling, viewed in the light most favorable to Plaintiffs, does not necessarily
contradict their testimony. Plaintiffs deny the accuracy of Hughes’s notes—and question
whether she took contemporaneous notes at all. Doc. 78 at ¶¶ 61, 68, 78. And St. John’s texts
(whose meaning the parties genuinely dispute) and Turner’s letter do not directly contradict
Plaintiffs’ deposition testimony.

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A reasonable jury also could find that Hughes’s belief that Plaintiffs lied during the
investigation, even if honestly held, was not the real reason Graham fired them. For starters, a
jury could infer from Graham’s using as a pretext some of the investigation’s findings (Plaintiffs’
alleged violations of American Bottling’s hiring practices) that his invoking other findings
(Plaintiffs’ alleged dishonesty during the investigation) was also pretextual. See Simpson v.
Beaver Dam Cmty. Hosps., Inc., 780 F.3d 784, 798 (7th Cir. 2015) (noting that “the pretextual
character of one” asserted ground for the employer’s decision may be “so fishy and suspicious”
as to support an inference that the other asserted grounds were also pretextual, particularly where
the grounds were “intertwined”) (internal quotation marks omitted). Additionally, a reasonable
jury could infer from Graham’s launching an investigation into conduct he had approved that he
had already decided to terminate Plaintiffs, and thus that his decision was not based on what he
later came to believe about their honesty. A reasonable jury also could believe multiple
witnesses’ recollections that Graham finalized the decision to terminate Plaintiffs during the
November 24, 2015 conference call, Doc. 86 at ¶ 9, at which point Hughes and Ferguson still
had not conducted the final interview that led them to believe that Turner was being dishonest,
Doc. 78 at ¶ 79; Doc. 86 at ¶¶ 8, 10-11. Finally, Plaintiffs’ termination letters—which Graham
signed—do not mention the alleged dishonesty. Doc. 78 at ¶ 80; Doc. 73-11 at 61-62.
American Bottling contends that the dispute over when Graham decided to fire Turner is
immaterial because witnesses’ conflicting recollections of “how and when the termination
decision was reached” do not prove pretext. Doc. 85 at 15-16 (internal quotation marks omitted).
True, the Seventh Circuit has “held that where there is no conflict in the evidence regarding the
reasons for an adverse employment action, differing recollections of the events surrounding that
action do not raise a reasonable inference of discrimination.” Bagwe v. Sedgwick Claims Mgmt.

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Servs., Inc., 811 F.3d 866, 881-82 (7th Cir. 2016) (internal quotation marks omitted). Here,
however, the disagreement about what happened on the conference call is itself a “conflict in the
evidence regarding the reasons for” Plaintiffs’ firing. Ibid. A reasonable jury could infer from
the timing of Graham’s decision to fire Plaintiffs that he terminated them for reasons other than
their alleged lack of candor during the investigation.
That leaves the question whether the summary judgment record would permit a
reasonable jury to find that Graham’s real reason for terminating Plaintiffs was their race or age.
It would. Plaintiffs adduce evidence (which the jury may or may not believe) that Graham
(1) made racially derogatory comments to Plaintiffs; (2) talked about the “need to get some fresh
blood in here,” including in connection with Turner’s hiring of people Graham called “old”;
(3) replaced Plaintiffs, African-American men in their late 40s, with white men nearly two
decades younger; and (4) continued to make racially derogatory comments at work after
Plaintiffs were fired, including calling St. John a “no good nigger.” Doc. 78 at ¶ 87; Doc. 86 at
¶¶ 52-54, 57, 59-62, 66-67. That evidence, when considered along with the evidence suggesting
that Graham used Hughes’s investigation to launder his true intent, would permit a reasonable
jury to conclude that Plaintiffs’ protected characteristics, race and age, “caused the[ir]
discharge.” Ortiz, 834 F.3d at 765; see also Gracia v. SigmaTron Int’l, Inc., 842 F.3d 1010,
1021 (7th Cir. 2016) (“The jury could reasonably conclude that SigmaTron’s stated reason for
the termination was a pretext, and it was then free to infer that the company gave a false reason
in order to cover up a discriminatory purpose.”).
American Bottling dismisses Graham’s comments as “stray remarks” that “are
insufficient to create an inference of discrimination” because they were not made in connection
with Plaintiffs’ termination. Doc. 85 at 12-13 (citing Teruggi v. CIT Grp./Capital Fin., Inc., 709

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F.3d 654, 661 (7th Cir. 2013), abrogated in part by Ortiz, 834 F.3d 760). But the question here
is not what the comments, standing alone, prove, but rather what a reasonable jury could
conclude when the evidence is put “in a single pile and … evaluated as a whole.” Ortiz, 834
F.3d at 765-66 (“Evidence must be considered as a whole, rather than asking whether any
particular piece of evidence proves the case by itself … .”); see also Freelain v. Vill. of Oak
Park, 888 F.3d 895, 905 (7th Cir. 2018) (“Teruggi … did not set boundaries for weighing
circumstantial evidence as part of a larger case. … We repeat our caution that courts should not
discard circumstantial evidence simply because it does not provide direct proof of unlawful
intent.”) (emphasis omitted). As explained above, the evidence taken as a whole would allow a
reasonable jury to find that discrimination was afoot.
American Bottling also argues that Graham’s comments about “old” employees and
“fresh blood” “do not suggest discriminatory intent” based on age. Doc. 72 at 21-22; Doc. 85 at
18. In support, it cites Beatty v. Wood, 204 F.3d 713 (7th Cir. 2000), for the proposition that
“case after case confirms” that a “reference to ‘new blood’ does not evidence age-based
discrimination.” Doc. 72 at 21-22 (some internal quotation marks omitted). But Beatty held
only that a reference to “new blood” did not, “in isolation, evidence age-based discriminatory
animus,” and added that, “in some contexts, it might well be indicative of age discrimination, but
there was absolutely no evidence produced in this case to provide such a context.” 204 F.3d at
716 (emphasis added). The context missing in Beatty is present here. Taking Graham’s
comments in their context—a conversation about Turner’s hiring older employees, followed a
few months later by Graham’s firing Plaintiffs for reasons a jury could find were pretextual and
replacing them with much younger employees—a reasonable jury could find that Plaintiffs’ age
caused their termination. See Ortiz, 834 F.3d at 765-66; see also Blackwell v. Cole Taylor Bank,

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152 F.3d 666, 671-72 (7th Cir. 1998) (noting that remarks about “fresh blood” can be “evidence
of age discrimination”).
II.

Back Pay
American Bottling also argues that the after-acquired evidence doctrine defeats Plaintiffs’

request for back pay. Doc. 72 at 22-23. Although “information that surfaced after the
discharge … cannot absolve” American Bottling from liability, it “may reduce [Plaintiffs’]
damages” under the after-acquired evidence doctrine. Ortiz, 834 F.3d at 766. The doctrine
provides that if an employer discharges an employee because of a protected characteristic, but
later “turns up evidence of employee wrongdoing which would have led to the employee’s
discharge, then the employee’s right to back pay is limited to the period before the discovery of
this after-acquired evidence.” Sheehan v. Donlen Corp., 173 F.3d 1039, 1047 (7th Cir. 1999).
American Bottling contends that St. John’s text messages, which it acquired hours after
the firing, establish that Plaintiffs in fact engaged in the misconduct for which they were fired.
Doc. 72 at 23. That argument fails at summary judgment because there are genuine disputes in
the record as to what the texts mean and whether American Bottling would in fact have
terminated Plaintiffs for the conduct the texts describe.
American Bottling asserts that the texts establish that St. John: (1) reopened a job posting
for Sanders and Sellers; (2) “talked to Turner about whether Sanders would be hired”; and
(3) “intentionally concealed his relationship” with Sanders and Sellers. Ibid. That reading of St.
John’s texts is not inevitable. First, a reasonable jury could believe St. John’s explanation of the
texts about reopening and holding open the job posting: He lacked power to do those things and
was merely trying to encourage Sanders and Sellers to stop procrastinating and submit their
applications. Doc. 78 at ¶¶ 35, 39; Doc. 86 at ¶¶ 21-23. Second, American Bottling cites
St. John’s “Yes I will talk to him shortly” text as proof that he in fact talked to Turner about
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Sanders. Doc. 72 at 23 (citing Doc. 78 at ¶ 43). But that text responded to a compound question
in which Sanders asked (1) “do you think they would give me the job” and (2) “if so what he
going to do about Melvin are he still going to bring him in though [sic] the temp agency.”
Doc. 78 at ¶ 43 (quoting Doc. 73-11 at 57). The court cannot definitively conclude on the
summary judgment record who St. John meant by “him,” much less whether he followed through
on his stated intention. Third, a reasonable jury could believe St. John’s testimony that he in fact
disclosed to Graham and Hughes his relationship with Sanders and Sellers, and that the concern
to which Sanders alluded when she said “don’t worry nobody would ever know we related” was
that “people on the floor” would give them special treatment. Doc. 73-11 at 60; Doc. 78 at ¶ 50;
Doc. 86 at ¶¶ 2-4.
What is more, because a reasonable jury could conclude that Graham authorized
Plaintiffs’ conduct and did not in fact terminate them for the reasons he gave, it is open to
question whether, had American Bottling found out about the text messages earlier, it would in
fact have responded by firing Plaintiffs. See Sheehan, 173 F.3d at 1047-48 (holding that the
employer failed to satisfy its burden of proof on its after-acquired evidence defense where “no
one in the history of [the company] had ever been fired for” the misconduct at issue, and where
the defendant adduced no evidence “that the policy [permitting termination for that misconduct]
actually would have been applied”); see also McKennon v. Nashville Banner Publ’g Co., 513
U.S. 352, 362-63 (1995) (“Where an employer seeks to rely upon after-acquired evidence of
wrongdoing, it must first establish that the wrongdoing was of such severity that the employee in
fact would have been terminated on those grounds alone if the employer had known of it at the
time of the discharge.”) (emphasis added); Cuff v. Trans States Holdings, Inc., 768 F.3d 605, 609
(7th Cir. 2014) (holding that the after-acquired evidence doctrine limits damages “if the

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employer would have fired this employee, in particular, on learning of the worker’s misconduct”)
(emphasis added).
Given the foregoing, American Bottling is not entitled to summary judgment under the
after-acquired evidence doctrine on Plaintiffs’ request for back pay.
Conclusion
American Bottling’s summary judgment motion is denied. American Bottling’s original
motion to bar part of Turner’s deposition testimony is denied as moot in light of its filing the
renewed motion to bar and strike. The renewed motion to bar and strike is denied to the extent
noted above and otherwise is denied as moot, as disregarding the challenged testimony and the
remaining challenged portions of Plaintiffs’ Local Rule 56.1(b)(3)(B) response would not change
the outcome of the summary judgment motion.

February 26, 2019

United States District Judge

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