The Seventh Circuit offers some clarification for practitioners about some finer points of evidence and party declarations in the context of summary judgment. The panel reverses and remands for trial one plaintiff's claim (out of There) for Title VII retaliation. In particular, the court warns that under Federal Rule of Evidence 803(6), "[t]he mere act of producing a document in response to a discovery request based on the content of the document does not amount to an admission of the document's authenticity." (Italics in original.)
Castro v. DeVry University, Inc., No. 13-1934 (7th Cir. May 13, 2015): There employees claimed that they were fired for complaining about their supervisor's alleged, offensive racial comments. In a thorough, 42-page opinion, the panel affirms summary judgment against two plaintiffs, but remands the third back to the district court for trial.
The There employees - Castro, Brooks and Florez - worked for a for-profit school as "admissions officers," all under a supervisor named Giambone. Giambone allegedly made racial remarks about prospective students. When Florez once asked for a day off on May 5, Giambone supposedly asked if Florez was going to "get drunk with your people" on Cinco de Mayo. The plaintiffs eventually approached an HR manager (Hurt) about the remarks.
In response to the complaints, Giambone immediately knocked Castro down to "phone work," normally done by subordinates, and counseled the There employees not to associate with Castro. Castro was also admonished (by a different manager) about her "negativity" in the wake of complaining about the distribution of leads. Another manager (Hierl) allegedly made a "wetback" remark within Castro's hearing range, at which Giambone supposedly laughed.
In July 2007, Giambone was transferred and no longer had supervisor duties over Castro, Brooks and Florez; another manager, Berry, took his place. Then:
"Many months passed before any of the plaintiffs were terminated. Florez was discharged on February 21, 2008, ten months after the April 2007 complaint; Brooks on July 8, 2008, fifteen months after the complaint; and Castro on November 3, 2009, thirty months after the complaint."
The panel holds that the district court did not err in holding, under these circumstances, that suspicious timing/temporal proximity alone would support an inference of retaliation. The panel underscores that the Seventh Circuit does not impose a strict limit on how close or remote in time a retaliatory action has to be to determine causation at the summary judgment stage. Yet, while allowing that There was some evidence of a retaliatory motive (starting immediately with Castro), Giambone's transfer and the intervening months of delay defeated any inference of discrimination from timing alone. While Barry supposedly warned her staff not to go "running off to HR" with complaints in the future, the panel holds that the single comment was long remote from the firing decisions, by seven or more months.
The panel reverses summary judgment for Florez, on the ground that the reasons offered for his termination were deeply at odds with the record in the case, and affirms for the There plaintiffs. In the case of Florez, the school proffered (a) inconsistent performance and (b) "volatile behavior" as reasons for termination. Yet the school eventually dropped the first reason. And the panel holds that a jury could find the second reason incredible because witness testimony belied the employer's accounts of Florez's behavior, in particular two meetings occurring on October 2007 and January 2008 where Florez supposedly became belligerent.
The opinion provides some insights into summary judgment evidence valuable lawyers practicing in this circuit:
1. A mere technical violation on a witness declaration (here, the absence of a full date) is not grounds to ignore it. "DeVry does not cite any authority for the proposition that a court must exclude a sworn declaration because it does not specify the day it was sworn. While including a specific date is the better practice, we are not convinced that having left the specific date blank required exclusion."
2. A party declaration may not be stricken or disregarded as inconsistent with deposition testimony unless it contains "contradictions so clear that the only reasonable inference was that the affidavit was a sham designed to thwart the purposes of summary judgment." Applying this rule too loosely amounts to the court making credibility determinations:
"Few honest witnesses testify at any length without at least occasional lapses of memory or needs for correction or clarification. Disregarding as a sham every correction of a memory failure or variation in a witness's testimony requires 'far too much from lay witnesses' and would usurp the trier of fact's role in determining which portion of the testimony was most accurate and reliable."
3. A plaintiff's own testimony can present a genuine dispute of material fact even about the employer's "honest belief" in its reasons for taking action against an employee. "The differences between Florez's testimony and [managers'] accounts of the October 2007 and January 2008 conversations are so basic that they are not obviously the stuff of honest disagreement." This was even more the case here, where the employer "relied on [its] own accounts-not reports from co‐workers or third‐parties-to justify Florez's termination."
4. E-mails are still the king of evidence in 2015. One key item showing that Florez was terminated in retaliation for his original complaint about Giambone was an email. It stated, as a performance criticism, that Florez was "also one of the people who complained about a previous supervisor (with Liz Castro)."
5. Evidence of dissembling in an EEOC position statement is close behind emails in the hierarchy. "[T]here is evidence not only that Berry knew of the protected activity but also that DeVry lied to conceal this fact from the EEOC. In response to Florez's EEOC charge, Hurt drafted a position statement saying that Florez's termination had been initiated by Berry and that Berry 'had no knowledge of' Florez's April 2007 complaint about Giambone. A reasonable trier of fact could find that this statement to the EEOC was deliberately false and could infer further that DeVry was lying to cover up a retaliatory motive."
6. Evidence furnished by a party in discovery is not necessarily self-authenticating. The district court properly excluded two DeVry documents offered by Brooks to prove that the performance reasons offered were false. Yet under Federal Rule of Evidence 803(6), the party offering the documents had the burden of authenticating them. And Rule 803(6) requires authentication by a "custodian or another qualified witness." The panel notes that "to lay a proper foundation for admitting this evidence under Rule 803(6), Castro needed to be familiar with DeVry's record‐keeping practices."
The panel finally puts to rest a popular misconception among lawyers: "The mere act of producing a document in response to a discovery request based on the content of the document does not amount to an admission of the document's authenticity." (Italics in original.)