Dunn v. Pratt Industries USA Inc

Filing 88

OPINION AND ORDER DENYING 67 Defendant's Motion for Summary Judgment. Signed by Judge Theresa L Springmann on 12/5/2016. (jss)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
CALVIN DUNN,
Plaintiff,
v.
PRATT INDUSTRIES (U.S.A.), INC.,
Defendant.

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CAUSE NO.: 2:12-CV-269-TLS

OPINION AND ORDER
This matter comes before the Court on Defendant Pratt Industries (U.S.A.) Inc.’s Motion
for Summary Judgment [ECF No. 67]. The Plaintiff, Calvin Dunn, filed a Complaint [ECF
No. 1] on July 13, 2012, alleging race discrimination and retaliation, pursuant to 42 U.S.C.
§ 2000, Title VII, and to 42 U.S.C. § 1981. This matter is fully briefed and ripe for the Court’s
review.

FACTS OF THE CASE
Unless otherwise specified, the following material facts are not in dispute. The Plaintiff,
an African American man, applied to work as a truck driver for the Defendant, a paper and
packaging company, on December 29, 2010. (Overstreet Decl. ¶ 3 & Attach. 2, ECF No. 72-1.)
The Plaintiff had prior experience as a truck driver with multiple companies. (Attach. 2 at 2.) As
part of the application process, the Plaintiff submitted a paper application and was scheduled for
an in-person interview with Rebecca Lockwin, the Defendant’s representative.
The parties dispute the interim steps between the Plaintiff’s submission of his application
and the scheduling of his interview. The Plaintiff asserts that the Defendant’s internal policy
required pre-approval of job applicants for an in-person interview, which included a satisfactory

motor vehicle record (“MVR”) and a background check. (Pl.’s Opp’n 6–7, ECF No. 80.) The
Defendant argues that a “clean” MVR was required for hiring (Overstreet Decl. ¶ 12).1
Additionally, the Defendant disputes that this internal policy was followed in the Plaintiff’s case,
as his interview was expedited before review of his MVR or a background check. (Lockwin Dep.
18:6–20:2, 22:1–22:22, ECF No. 72-4.)
Lockwin interviewed the Plaintiff on January 6, 2011, but the parties dispute how it
concluded. The Defendant argues that Lockwin did not offer the Plaintiff the position, as it was
conditional upon the completion of its MVR review. (Id. 27:13–27:16, 30:11–30:25.) The
Plaintiff argues that Lockwin told him the job was his, asked how soon he could start, and
scheduled him for orientation the following Monday. (Dunn Dep. 72:10–72:22, ECF No. 79-1.)
The Defendant’s internal review of the Plaintiff’s application was completed on January 7, 2011,
which came back adversely as to both his MVR and background check (Overstreet Decl. ¶ 8.)
Shortly thereafter, Lockwin notified the Plaintiff that he would not be hired as a truck driver.
(Lockwin Dep. 43:17–44:16, ECF No. 72-5.)
After his rejection, the Plaintiff obtained a trucking job with Perez Trucking in early
2011. (Lockwin Dep. 53:11–56:13.) Esteban Perez owns and operates Perez Trucking, which
contracts with the Defendant to do runs from its Valparaiso facility. (Id. 51:3–52:4.) Through his
employment with Perez Trucking, the Plaintiff worked on the Defendant’s premises, and on
September 13, 2011, he emailed the Defendant’s corporate offices and claimed that he “was lied
to and discriminated against” when it rejected his job application that January. (Id. Ex. B.)

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The Defendant is inconsistent in describing its MVR requirements for applicants. At one point
the Defendant states that it “requires its truck driver to have a clean [MVR] during the prior three years,
and no more than two violations in the prior five years” (Def.’s Mot. Summ. J. 1, ECF No. 68), but at a
different point it states that “a truck driver must have a clear [MVR] and no more than three tickets for
moving violations in the prior 36 months” (Id. 4).

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In his email, the Plaintiff alleged that “over 10 new drivers have been hired” after he was
rejected “and they all have one similarity, they are all [Caucasian].” (Id.) Additionally, he
claimed that another applicant without proper qualifications was hired because he was a friend of
a facility dispatcher. Finally, the Plaintiff said that he was “writing down everything that will
strengthen my case.” (Id.) The Defendant conducted an internal investigation of the Plaintiff’s
claims and, two days after receiving the email, banned the Plaintiff from its property and asked
Perez Trucking to assign a different driver to Valparaiso. (Req. for Admis. Nos. 8, 10, ECF No.
69-8.) Although Perez Trucking did not formally terminate the Plaintiff’s employment,
reassignment of the Plaintiff led to his separation from the company because Perez Trucking
only had two truck drivers, Perez and the Plaintiff. (Interrog. No. 5, ECF No. 79-4.)

COMPLAINT ALLEGATIONS AND PROCEDURAL BACKGROUND
In his Complaint, the Plaintiff alleged race discrimination against the Defendant under
Title VII and 42 U.S.C. § 1981 for failing to hire him and then banning him from its property,
and retaliation under Title VII and 42 U.S.C. § 1981 based on the Defendant’s response to the
Plaintiff’s September 13 email. The Plaintiff timely filed a discrimination charge with the Equal
Employment Opportunity Commission, which issued a final agency decision that was adverse to
his claims. (Answer ¶ 7, ECF No. 11; Compl. ¶ 7, ECF No. 1.) On July 13, 2012, the Plaintiff
filed his Complaint [ECF No. 1] with this Court. The Defendant filed its Answer and Affirmative
Defenses [ECF No. 11] on September 18, 2012. Additionally, the Defendant filed a Third-Party
Complaint [ECF No. 18] against Third-Party Defendant Perez Trucking on February 27, 2013,
and Perez Trucking filed its Answer [ECF No. 24] on June 3, 2013. After the close of discovery,
the Defendant and Perez Trucking jointly stipulated to dismissal of the Third-Party Complaint
[ECF No. 57], which was granted on December 15, 2015 [ECF No. 58]. The Defendant moved
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for Summary Judgment on April 4, 2016 [ECF No. 67]. The Plaintiff filed his Opposition [ECF
No. 80] on July 8, 2016. The Defendant’s Reply [ECF No. 87] was entered on September 2,
2016.

STANDARD OF REVIEW
Summary judgment is warranted when “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). Summary judgment is the moment in litigation where the nonmoving party is
required to marshal and present the court with evidence on which a reasonable jury could rely to
find in that party’s favor. Goodman v. Nat’l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010).
A court should only deny a motion for summary judgment when the nonmoving party presents
admissible evidence that creates a genuine issue of material fact. Luster v. Ill. Dep’t of Corrs.,
652 F.3d 726, 731 (7th Cir. 2011) (first citing United States v. 5443 Suffield Terrace, 607 F.3d
504, 510 (7th Cir. 2010); then citing Swearnigen–El v. Cook Cnty. Sheriff’s Dep’t, 602 F.3d 852,
859 (7th Cir. 2010)). A court’s role in deciding a motion for summary judgment “is not to sift
through the evidence, pondering the nuances and inconsistencies, and decide whom to believe.
[A] court has one task and one task only: to decide, based on the evidence of record, whether
there is any material dispute of fact that requires a trial.” Waldridge v. Am. Heochst Corp., 24
F.3d 918, 920 (7th Cir. 1994). Material facts are those that are outcome determinative under the
applicable law. Smith v. Severn, 129 F.3d 419, 427 (7th Cir. 1997). Although a bare contention
that an issue of material fact exists is insufficient to create a factual dispute, a court must
construe all facts in a light most favorable to the nonmoving party, view all reasonable inferences
in that party’s favor, see Bellaver v. Quanex Corp., 200 F.3d 485, 491–92 (7th Cir. 2000), and

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avoid “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).

DISCUSSION
The Plaintiff “does not proceed upon Counts I and II of his Complaint, which allege race
discrimination under Title VII and 42 U.S.C. § 1981.” (Opp’n 1 n.1, ECF No. 80.) Accordingly,
the Court deems the Plaintiff’s race discrimination claims abandoned. Palmer v. Marion Cnty.,
327 F.3d 588, 597 (7th Cir. 2003). The Court directs its attention to the Plaintiff’s claims for
retaliation under Title VII and 42 U.S.C. § 1981, as the analysis for retaliation claims under both
statutes is the same. See Ortiz v. Werner Enters., Inc., 849 F.3d 760, 764 (7th Cir. 2016).
A retaliation claim requires a showing that the plaintiff (1) engaged in a statutorily
protected activity, (2) suffered a materially adverse employment action, and that (3) a causal
connection exists between the statutorily protected activity and the action taken. Tomanovich v.
City of Indianapolis, 457 F.3d 656, 662 (7th Cir. 2006). Retaliation may be proven under either
the direct or indirect method of proof, Troupe v. May Dep’t Stores Co., 20 F.3d 734, 736 (7th
Cir. 1994), but the parties focus solely upon the direct method of proof in this case (See Pl.’s
Opp’n 11; Mot. Summ. J. 11–14). “Under the ‘direct method,’ the plaintiff may avoid summary
judgment by presenting sufficient evidence, either direct or circumstantial, that the employer’s
discriminatory animus motivated an adverse employment action.” Coleman v. Donahoe, 667
F.3d 835, 845 (7th Cir. 2012). Relevant circumstantial evidence includes “suspicious timing or
ambiguous statements, evidence that others outside the protected class were systematically
treated better, or evidence that the employer gave a pretextual reason for the adverse
employment action.” Ripberger v. Corizon, Inc., 773 F.3d 871, 877 (7th Cir. 2014). “Regardless
of the type of evidence presented, the direct method is used when that evidence would permit the
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trier of fact to find that unlawful discrimination caused the adverse job action.” Bass v. Joliet
Pub. Sch. Dist. No. 86, 746 F.3d 835, 841 (7th Cir. 2014); see also Perez v. Thorntons, Inc., 731
F.3d 699, 703 (7th Cir. 2013) (stating that the relevant analysis is whether a reasonable jury
could infer prohibited discrimination).

A.

Statutorily Protected Activity
Title VII “protects an employee who opposes any practice made an unlawful employment

practice by this subchapter.” Mattson v. Caterpillar, Inc., 359 F.3d 885, 889 (7th Cir. 2004)
(quotation marks omitted). For the Plaintiff to succeed under the opposition clause, he need not
show that the complained of conduct “actually was serious enough to constitute a Title VII
violation. Instead, [he] need only show that, when instituting [his] grievance, [he] had a ‘sincere
and reasonable belief’ that [he] was opposing an unlawful practice.” Magyar v. St. Joseph Reg’l
Med. Ctr., 544 F.3d 766, 771 (7th Cir. 2008) (quoting Hamner v. St. Vincent Hosp. & Health
Care Ctr., Inc., 224 F.3d 701, 706–07 (7th Cir. 2000)). The objective reasonableness of the
belief is not assessed by examining whether the conduct was persistent or severe enough to be
unlawful, but merely whether it falls into the category of conduct prohibited by the statute. Id. “It
is improper to retaliate against anyone for claiming a violation of Title VII unless that claim is
‘completely groundless,’” Fine v. Ryan Int’l Airlines, 305 F.3d 746, 752 (7th Cir. 2002), and a
“groundless claim is one resting on facts that no reasonable person possibly could have construed
as a case of discrimination,” id.; see also Mattson, 359 F.3d at 891 (noting that a claim must be
“utterly baseless” to fail to qualify as a statutorily protected activity).
Here, the Plaintiff initially complained in an email to the Defendant on September 13,
2011, that he was discriminated against on the basis of his race. As an African-American, he
asserted that “over 10 new drivers ha[d] been hired” who were all Caucasian after the Defendant
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declined to hire him. (Lockwin Dep. Ex. B, ECF 72-5.) The Defendant argues that the Plaintiff’s
email was not a statutorily protected activity because the Plaintiff subsequently dropped his
claim of race discrimination in this litigation, and because the Plaintiff lied on his employment
application in the first place.
“[I]t is not unusual for a plaintiff to make claims that appear legitimate on the surface, but
which, after discovery and a fuller inquiry, ultimately turn out to lack merit. Title VII precludes
retaliation against a plaintiff for making such a ‘grounded yet unsuccessful complaint.’” Lord v.
High Voltage Software, Inc., —F.3d—, 2016 WL 5795797, at *10 (7th Cir. Oct. 5, 2016)
(Rovner, J., concurring and dissenting in part) (quoting Fine, 305 F.3d at 752). Although the
Plaintiff has not pursued his race discrimination claim to this stage of the litigation, that
determination does not endanger his retaliation claim. The Defendant’s second argument boils
down to this: the numerous lies and omissions on the Plaintiff’s employment application and
MVR show that the Plaintiff could not have had a “sincere and reasonable belief” that his race
was the reason that his application was rejected. Construing the facts in the nonmovant’s favor,
the Court finds that there are enough disputes on this issue for a jury to find for the Plaintiff.
For instance, the Defendant argues that the Plaintiff falsified numerous parts of his
application. The Plaintiff allegedly failed to accurately provide on his application the “reason
given by [CFI]” for leaving his employment. (Reply 3, ECF No. 87.) The Defendant’s
employment application only asks an applicant “Have you ever been terminated or asked to
resign from any job?” and then “If yes, please explain circumstances.” (Appl. 2, ECF No. 72-6.)
The Plaintiff wrote on his application that he was “Terminated without cause” and because he
was “wrongfully-released . . . ‘rear-ended’ and released.” (Id.) At various points in deposition
testimony, the Plaintiff has stated that his relationship with CFI ended because he lacked a

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hazmat endorsement, because the company was sold, and because a computer registered his
truck over the speed limit after a rear-ending accident. (See Dunn Dep. 32:3–33:16, ECF No. 791.) The Defendant argues that only the latter reason was truthful, but the application does not
require the applicant to state his employer’s reasons for termination, only the “circumstances” of
the termination. Moreover, it is quite common for job applicants to sugarcoat their credentials as
best they can, which is what the Plaintiff did here: given his experience that freight companies
did not terminate truck drivers solely for speeding, he listed that he was “terminated without
cause” because he believed that when CFI was sold he became expendable due to his not
possessing a hazmat endorsement. (See Dunn Dep. 32:3–33:16.) The Plaintiff would not have
believed that his explanation provided a legitimate reason for not hiring him, and thus he could
have still believed it was a race-driven decision.
Similarly, the Defendant claims that the Plaintiff falsely attested to never refusing a preemployment drug test. (Reply 4.) The Defendant’s employment application asks whether an
applicant has “tested positive, or refused to test, on any pre-employment drug or alcohol test
administered by an employer to which [the applicant] applied for, but did not obtain, safetysensitive transportation work . . . during the past two years.” (Dunn Dep. Ex. 10, ECF No. 79-1.)
The parties contest whether or not the Plaintiff applied to work for C.R. England, and thus
whether his deposition testimony is truthful. (Reply 4; Opp’n 5.) However, the wording in the
job application clearly limits the relevant timespan to the past two years, and the Plaintiff’s
deposition testimony limits his purported relationship with C.R. England to around 1996. (Dunn
Dep. 44:13–45:13.) Even if he did apply to work for C.R. England and failed to take a drug test,
that occurred approximately 14 years before he completed his application with the Defendant.

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Thus, the Plaintiff would not have believed that his answer provided a legitimate basis not to hire
him.
Furthermore, the Plaintiff allegedly omitted “multiple moving-traffic violations” from his
application. (Mot. Summ. J. 5.) One section of the Defendant’s employment application states
“Please list all moving traffic violations in the last five (5) years,” and the Plaintiff only listed
“Speeding.” (Appl. 4.) A subsequent portion of the employment application asked for “Traffic
Convictions and Forfeitures (3 years),” and the Plaintiff listed “Height Restriction.” (Id. at 7.)
The Defendant argues that the “Height Restriction” was actually a moving-traffic violation for
disregarding a traffic control device, and that the dates listed were not correct. (Reply 4.)
Admittedly, the Plaintiff’s statements do not identically match his MVR, but that is not evidence
that the Plaintiff intended to lie on his application. The Plaintiff thought that the “Height
Restriction” was a safety violation given his conversation with the police officer at the time and
so put it in the latter section, and he just happened to misremember the dates when he received
his speeding tickets. Based on this evidence, a jury could find that the Plaintiff did not believe he
was lying on his employment application with respect to the aforementioned entries.
In addition to these alleged falsifications of his application, the Defendant argues that the
Plaintiff’s MVR contained numerous violations that disqualified him from employment. Only
three MVR entries occurred within the five years prior to his application, which were a license
suspension for “Delinquent Child Support” in December 2009, a 6.0 point violation for
“Disregard Traffic Control Device” in August 2008, and a 2.0 point violation for “Speeding” in
July 2006. (Appl. at 8–9.) However, those entries are only disqualifying if the Defendant’s hiring
standards characterized them as disqualifying. The Plaintiff introduced an exhibit entitled

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“Driver Hiring Standards,” which states, in relevant part, that an applicant for employment with
the Defendant needs to have:
No more than three tickets for moving violations in the most recent 36 months
prior to application
No more than two tickets for moving violations in the most recent 12 months
prior to application.
(Columbus Dep. Ex. A, ECF No. 79-2.) One of the Defendant’s employees verified that these
were the Defendant’s hiring standards (Id. 28:12), but the Defendant disputes that this criteria
was “in effect at the time that [Plaintiff] applied for the position” (Reply 3). If these standards
were in effect when the Plaintiff submitted his application in December 2010, then it would be
evidence that the Plaintiff’s MVR satisfied the Defendant’s hiring standards. Viewing this
evidence in a light most favorable to the Plaintiff, a jury could find that the Plaintiff’s MVR did
not disqualify his employment application.
The error underlying this whole argument is that some errors in his application and prior
violations in his MVR do not render the Plaintiff’s initial complaint of race discrimination
“utterly baseless.” Mattson, 359 F.3d at 891. The Plaintiff put forward evidence that showed it
was the Defendant’s practice to conduct in-person interviews only after determining that an
applicant had a positive background check and an acceptable MVR. A jury could find that it was
reasonable for the Plaintiff to believe, based on this practice and what Lockwin told him during
their in-person interview, that he was likely to be hired. Even if the Defendant deviated from its
standard hiring practice, there is no evidence that the Plaintiff knew that the Defendant was
deviating in its evaluation of his application. And a jury could find that it was reasonable for the
Plaintiff to believe, after his application was rejected and he went to work for a third-party
contractor where he observed the Defendant’s premises and the racial composition of its
employees, that he was denied employment because of his race. This is especially true because
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there is no evidence that Lockwin or any other of the Defendant’s employees offered the Plaintiff
an explanation as to why he was not hired, either when his application was rejected in January or
when he sent the September email.
Because the Plaintiff has presented evidence that demonstrates he had a sincere and
reasonable belief that he was denied employment based on his race, a jury could find that the
Plaintiff’s initial complaint to the Defendant qualifies as statutorily protected activity.

B.

Materially Adverse Employment Action
“The requirement that a plaintiff show [he] suffered an adverse employment action as a

result of [his] employer’s alleged discrimination is an element of any Title VII claim.” Chaib v.
Indiana, 744 F.3d 974, 982 (7th Cir. 2014). Title VII makes it unlawful for an employer “to fail
or refuse to hire or to discharge any individual, or otherwise to discriminate against any
individual with respect to his compensation, terms, conditions, or privileges of employment” on
the basis of the individual’s race, sex, or engaging in a protected activity. 42 U.S.C. § 2000e2(a)(1). Title VII’s prohibition against discrimination with respect to terms, conditions, or
privileges of employment reaches only “material, sufficiently important alterations of the
employment relationship (often referred to as ‘adverse employment actions’).” Brewer v. Bd. of
Trs. of Univ. of Ill., 479 F.3d 908, 916–17 (7th Cir. 2007) (citing Minor v. Centocor, Inc., 457
F.3d 632, 634 (7th Cir. 2006)). “A cognizable adverse employment action is a ‘significant
change in employment status, such as hiring, firing, failing to promote, reassignment with
significantly different responsibilities, or a decision causing a significant change in benefits.’”
Chaudhry v. Nucor Steel-Ind., 546 F.3d 832, 838 (7th Cir. 2008) (quoting Bell v. EPA, 232 F.3d
546, 555 (7th Cir. 2000)). The “purpose of the adverse employment action requirement is to
provide a reasonable limiting principle for the type of conduct actionable under the statute.”
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Phelan v. Cook Cnty., 463 F.3d 773, 780 (7th Cir. 2006). “[A] statute which forbids employment
discrimination is not intended to reach every bigoted act or gesture that a worker might
encounter in the workplace.” Hunt v. City of Markham, Ill., 219 F.3d 649, 653 (7th Cir. 2000).
An action is materially adverse for purposes of retaliation if it “well might have
dissuaded a reasonable worker from making or supporting a charge of discrimination.”
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (quotation marks omitted).
“‘Even under the more generous standard that governs retaliation claims,’ a reprimand ‘without
more’ is not an adverse employment action.” Chaib, 744 F.3d at 987 (quoting Johnson v.
Cambridge Indus., Inc., 325 F.3d 892, 902 (7th Cir. 2003)).
The first issue for the Court is whether or not the Plaintiff was within the “protected class
of employees” at the time of the employment action, and thus is entitled to sue the Defendant.
The Defendant argues that the Plaintiff cannot sue it under the statute because he was neither
seeking employment with nor employed by the Defendant at the time it asked Perez Trucking to
reassign the Plaintiff. The Plaintiff argues that liability under Title VII and 42 U.S.C. § 1981 is
appropriate because the Defendant was a joint employer with Perez Trucking. A worker has two
separate entities as employers, for purposes of Title VII, “if they share or codetermine matters
governing the essential terms and conditions of the worker’s employment.” See Moldenhauer v.
Tazwell-Pekin Consol Commc’ns Ctr., 536 F.3d 640, 643 (7th Cir. 2009). “When a worker is
formally employed by one organization, but important aspects of his work are subject to control
by another organization, both organizations are employers of the worker. An independent entity
with sufficient control over the terms and conditions of the employment of a worker formally
employed by another is a joint employer within the scope of Title VII. See id.; G. Heilman
Brewing Co., Inc. v. N.L.R.B., 879 F.2d 1526, 1530–31 (7th Cir. 1989). Existence of an

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employment relationship is a question of law for the court. See Press Ganey Assocs., Inc. v. Dye,
No. 3:12-CV-437, 2014 WL 1116890, at *9–10 (N.D. Ind. Mar. 19, 2014).
Here, there is sufficient evidence to find that the Defendant was a joint employer of the
Plaintiff. One of the Defendant’s employees stated that it “contracted with a third-party carrier”
in order to effectively carry out its business. (Columbus Dep. 33:10–11.) Further, “almost all of
the work Perez Trucking handle[d wa]s for” the Defendant. (Interrog. No. 5.) When the
Defendant discovered that the Plaintiff was working on its premises through Perez Trucking, the
Defendant instructed Perez Trucking that the Plaintiff would be barred from its property. (Id. No.
4.) This evidence suggests a general contractor/subcontractor business relationship, with the
Defendant exercising sufficient control over Perez Trucking’s employees. The Court finds this
evidence demonstrates the existence of a joint employer relationship.
The second issue the Court must decide is whether the Plaintiff suffered a materially
adverse employment action. Reassignment without showing that there was a decrease in benefits
or anything “adverse” is generally not an adverse employment action. Stutler v. Ill. Dep’t of
Corr., 263 F.3d 698, 702 (7th Cir. 2001). The Defendant argues that its request to Perez
Trucking for a new driver was not an adverse employment action, as it only sought reassignment
of the Plaintiff. Given Perez Trucking’ operations, however, such a request operated to terminate
the Plaintiff’s employment because “[w]ithout any work . . . to perform, he naturally had no
work to do, and simply ceased to perform any work for Perez Trucking. There was no official or
formal termination of his employment.” (Interrog. No. 5.) It is reasonable to infer that the
Defendant had basic information about Perez Trucking’s business, including how many truck
drivers it employed, because of the circumstantial evidence of their business relationship. With
that knowledge, the Defendant effectively requested that Perez Trucking fire the Plaintiff. As

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such, a jury could find that the Defendant’s action constituted a materially adverse employment
action.
C.

Causal Connection
To satisfy the last prong, a plaintiff must show that his complaint was a substantial or

motivating factor for the defendant’s action. See Stone v. City of Indianapolis Pub. Utils. Div.,
281 F.3d 640, 642–434 (7th Cir. 2002). Absent direct evidence, a party may point to
circumstantial evidence like suspicious timing, evidence that similarly-situated employees were
treated differently, or a showing that the employee did not deserve the adverse employment
action. Volovsek v. Wis. Dep’t of Agric., 344 F.3d 680, 689–90 (7th Cir. 2003). “A shifting
justification for an employment action can itself be circumstantial evidence of an unlawful
motive.” Chaney v. Plainfield Healthcare Ctr., 612 F.3d 908, 916 (7th Cir. 2010) (citing Rudin v.
Lincoln Land Cmty. Coll., 420 F.3d 712, 723–24 (7th Cir. 2005)).
Here, the Plaintiff and Perez were the only drivers for Perez Trucking. Perez did not
complain to the Defendant and was not reassigned, which shows differential treatment of
similarly-situated employees. The Plaintiff also provided circumstantial evidence enabling a fact
finder to conclude that the Defendant’s action was retaliation for his email, given the suspicious
timing of his reassignment: the Plaintiff emailed his complaint on September 13, 2011, and two
days later he was barred from the property and the Defendant had requested that Perez Trucking
reassign him. The Defendant disputes that this evidence demonstrates a causal connection. First,
it argues that its reassignment request to Perez Trucking was justified because the Plaintiff’s
email signaled an intent to “gather additional information to harass and . . . use against the
[Defendant].” (Def.’s Position Statement 4, ECF No. 79-3.) Second, the Defendant argues that

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the Plaintiff was not qualified to work for Perez Trucking due to his MVR and his falsified
employment application.
The Defendant’s first justification has weaknesses. Although the Defendant feared that
the Plaintiff would “harass the company,” it never put forth evidence as to what, beyond the
potential of race discrimination litigation, it feared the Plaintiff could or would do.2 The Plaintiff
only sent one email, which the Defendant investigated internally and determined was without
merit. However, the Defendant did not communicate to the Plaintiff those reasons why his job
application was rejected in January or why there was no race discrimination. A jury could
construe the Defendant’s actual response—asking Perez Trucking to reassign (effectively
terminate) the Plaintiff without ever responding to his email—as a disproportionate one.
The Defendant’s second justification appears to qualify as a shifting explanation. In its
Brief, the Defendant suggested that it asked Perez Trucking to reassign the Plaintiff because he
did not meet the Defendant’s hiring standards—the Plaintiff should not have been allowed to
indirectly work for the Defendant through a third-party. The Defendant has started focusing on
this argument only later in the litigation, after it first focused on its concerns of harassment. See
Chaney, 612 F.3d at 916 (noting that the reason for firing shifted from “use of profanity” at the
termination meeting to “ignoring the call light and refusing a shift change” during litigation). But
this argument is also internally inconsistent. The Defendant’s representative stated that he did not
“know what [Perez Trucking’s] hiring criteria was at the time they employed [the Plaintiff].”

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Deposition testimony by Columbus contradicts the idea that the Defendant feared the Plaintiff
would take any action:
Q: When you received [the Plaintiff]s email of September 13, 2011, did you receive
anything in this e-mail to be a threat of any kind?
A: . . . I don’t believe I perceived anything as a threat, no.
(Columbus Dep. 29:17–21.)

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(Columbus Dep. 33:15–16.) So Perez Trucking’s hiring standards could have been different
enough from the Defendant’s that none of the former’s drivers would have satisfied the
Defendant’s hiring criteria. Without knowing or investigating Perez Trucking’s hiring criteria, it
would be incongruous to ask the Plaintiff to be reassigned in exchange for a different driver.
Based upon the evidence presented at summary judgment, a jury could find that a causal
connection existed between the Plaintiff’s statutorily protected activity and the Defendant’s
materially adverse employment action.

CONCLUSION
For the reasons stated above, the Court DENIES the Defendant’s Motion for Summary
Judgment [ECF No. 67].

SO ORDERED on December 5, 2016.
s/ Theresa L. Springmann
THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT

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