Kendall Reid v. Neighborhood Assistance Corpor , 749 F.3d 581 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 13-1768
KENDALL REID and BRADLEY SEARS,
Plaintiffs-Appellants,
v.
NEIGHBORHOOD ASSISTANCE
CORPORATION OF AMERICA,
Defendant-Appellee.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 11-CV-8683 — Amy J. St. Eve, Judge.
ARGUED NOVEMBER 7, 2013 — DECIDED APRIL 1, 2014
Before BAUER, MANION, and SYKES, Circuit Judges.
MANION, Circuit Judge. Plaintiffs Kendall Reid and Bradley
Sears allege that Neighborhood Assistance Corporation of
America discharged them in retaliation for making protected
complaints, in violation of Illinois law. It is undisputed that the
plaintiffs made protected complaints and were discharged, but
the district court granted summary judgment to NACA,
concluding that plaintiffs had not offered sufficient evidence
2 No. 13-1768
of causation—that is, whether they were discharged in retalia-
tion for their complaints. Plaintiffs appeal, arguing that the
district court failed to view the evidence (and draw all reason-
able inferences) in the light most favorable to them. We affirm.
I. Factual Background
A. Plaintiffs’ Employment
Plaintiffs Kendall Reid and Bradley Sears were hired as at-
will employees by Neighborhood Assistance Corporation of
America (“NACA”) in October 2007 and May 2010, respec-
tively. They worked out of NACA’s Chicago office. NACA is
a nationwide not-for-profit corporation that helps potential
homeowners—especially those facing discriminatory or
predatory lending—obtain mortgages to purchase homes. Reid
and Sears worked as mortgage consultants and reported to an
office manager in the Chicago office, Norma Martinez. Marti-
nez answered to a regional operations director in Baton Rouge,
Louisiana, Donald Meadows. As mortgage consultants,
plaintiffs were responsible for counseling potential homeown-
ers, helping them assemble mortgage applications, and for
forwarding the applications initially to underwriting and,
eventually, to lenders. Mortgage consultants are required by
federal law to hold a license in order to prepare mortgage
applications. See 12 U.S.C. § 5103 (Supp. 2013). Reid and Don
Meadows (the regional manager) were the only people tied to
the Chicago office who held the appropriate licenses. Sears had
held a license, but it had not been properly registered by
NACA, so he was not appropriately licensed.
As part of preparing the mortgage applications, mortgage
consultants handle documents containing the private personal
No. 13-1768 3
information of NACA’s clients. Accordingly, NACA had a
Document Security Policy (the “paperless policy”) that
required employees to scan documents into a secure digital
system and shred the paper originals to protect the client’s
information—paper files for clients were not to be kept.
Evidence shows that the policy had been at least emailed to
managers, but it had not been enforced in the Chicago office
during the time plaintiffs worked there.
B. Plaintiffs’ Complaints
While working for NACA, plaintiffs made a number of
complaints about NACA’s business practices. First, they
complained about being paid less than Illinois’ minimum
wage. Effective July 1, 2010, Illinois raised its minimum wage
to $8.25 an hour ($1 above the federal minimum wage). 820
ILCS 105/4 (Supp. 2013). Before the effective date of the
increase, Reid asked whether NACA would pay the new
minimum wage and received mixed answers from different
managers. Soon thereafter, another (unspecified) employee
brought up the complaint at a company meeting and NACA’s
CEO, Bruce Marks, replied that NACA “will pay you what we
have to pay … .” Reid Dep. at 73–74. Throughout that July,
Reid complained to the office manager and the regional
manager that he and other employees were not being paid the
new minimum wage, and on at least one occasion, that he was
not paid overtime when he should have been.
Second, plaintiffs complained on several occasions that
NACA violated state and federal law in handling mortgage
applications. Specifically, they complained that mortgage
applications were being prepared by unlicensed mortgage
4 No. 13-1768
consultants and signed by licensed mortgage consultants. They
also complained that when this happened, NACA was splitting
the commissions between licensed and unlicensed mortgage
consultants and the company itself. During an audit of NACA
in February and March of 2010, Reid spoke with state and
federal regulators who told him that these practices were
illegal. After learning the practices were illegal, Reid com-
plained to NACA management as early as April and May 2010.
He made several complaints to NACA management over the
next few months, including his last complaint in late Septem-
ber 2010. Sears also brought similar complaints to management
throughout that time, making his last complaint on October 11,
2010. Sears’s complaints were along different lines. This time
he complained that NACA had dropped the ball during his
licensing process, and as a result, he was not properly licensed
and was not receiving the full commission from NACA for
applications signed by other, licensed mortgage consultants.
Nonetheless, Sears’s complaints contained the same argument
that the practices were illegal.
In sum, plaintiffs’ complaints spanned a period of five to
six months. But they were not alone in their complaints. At
least four other individuals complained about not being paid
minimum wage, others complained about not receiving proper
overtime pay, and at least five others complained about
splitting commissions on mortgage applications prepared
between licensed and unlicensed mortgage consultants.
Further, at least three people complained about both minimum
wage and commission splitting. All of these other complaining
employees were also in the Chicago office and none of them
was fired.
No. 13-1768 5
C. Plaintiffs’ Termination
On Friday, October 8, 2010, Reid left the NACA office early
to attend a Chicago Bulls game. According to Reid, he received
permission from the office manager, Martinez, on the condition
that he work the whole weekend. That weekend, NACA’s
Chicago office was operating as a back-up call center for
another NACA office that was hosting an event. However,
when Reid came in to work on Saturday morning, October 9,
Martinez told him that he was being suspended for leaving
early the night before. Martinez denies that she gave Reid
permission to leave, but at least one other witness corroborates
Reid’s story, so—because we view the evidence in the light
most favorable to Reid—we must assume that he had permis-
sion to leave, but was suspended regardless.
On Monday, October 11, Rachelle Pride, NACA’s National
Real Estate Director, visited the Chicago office as part of a
nationwide effort to train NACA-affiliated real estate agents.
On that day, the office was closed for business and staffed only
by the skeleton crew of Sears, Martinez, and another mortgage
consultant, Mariola Jasinska.1 Martinez gave Pride a tour of the
office. During the tour, Pride noticed a number of violations of
NACA’s policies, including alcoholic beverages in Reid’s office
and volumes of paper copies of documents with confidential
information visible throughout the Chicago office, in violation
of the paperless policy. Pride called Marks to get instructions.
He told her to coordinate with Human Resources (“HR”) and
then ask that Sears and Jasinska turn in their office keys and
1
That Monday was Columbus Day.
6 No. 13-1768
leave the office for the remainder of the day. After talking to
Christine Cannonier in HR, Pride met with Sears and Jasinska
individually to explain the violation of the paperless policy,
receive their keys, and ask them to leave, which they did. Pride
explained to Jasinska that she was not fired at that time, but
that she did need to leave for the day. Sears testified that Pride
told him he was fired as soon as she saw the violations of the
paperless policy, but Pride denies that. In any event, Sears
received formal notice of his termination on October 14.
Then, pursuant to Cannonier’s instructions, Pride photo-
graphically documented the violations of the paperless policy.
The photos revealed that every employee in the office but one
was in violation of the policy. Marks and Cannonier asked
Pride to stay in Chicago a while longer to interview the office’s
customers. During those interviews, Pride discovered that
applications assembled by Reid had not been timely forwarded
and, as a result, all of the customers’ information had expired
and would need to be redone. That delay was also a violation
of NACA policy. Pride passed all this information along to
Marks, who also spoke with Cannonier and Meadows.
Through some of the conversations and conference calls, Marks
was made aware that Sears’s client service was poor, though at
the time of his deposition he could not recall from whom he
had heard that.
Faced with an entire office in violation of its paperless
policy, NACA asserts that it decided to fire three people:
Jasinska and plaintiffs Reid and Sears. In an early response to
an interrogatory asking for the names of “all” people involved
in making the decision to fire the plaintiffs, NACA listed only
Cannonier, Meadows, and Pride. However, there is conflicting
No. 13-1768 7
evidence concerning how and by whom the firing decision was
made, with deposition testimony indicating that it was either
just Bruce Marks or a group of managers. NACA later updated
its interrogatory answer to include Marks among those
involved in making the decision (consistent with the prior
deposition testimony of Meadows, and Cannonier and the later
testimony of Marks and Pride). NACA insists (and Marks
testified) that, though Marks consulted with other managers,
he alone made the final decision to fire plaintiffs. It is undis-
puted that he was not aware of plaintiffs’ complaints. Nonethe-
less, viewed in the light most favorable to the plaintiffs, in
addition to Marks, at least Meadows, Cannonier, and Pride had
a hand in making the decision and Cannonier and Meadows
had knowledge of plaintiffs’ complaints. Sears and Reid
received formal notice of their termination on October 14,
2010.2
NACA justifies its decision to fire Reid and Sears based on
their violations of the paperless policy and on its belief that
Reid had left work early for the Bulls game. Later in discovery,
NACA explained that the reason Reid and Sears were
fired—while other violators of the paperless policy were
not—was that Reid and Sears had problems in addition to their
violation of the paperless policy. These problems included the
2
Martinez was also later terminated, in part because of the violations of
the paperless policy that occurred under her management of the Chicago
office.
8 No. 13-1768
alcohol in Reid’s office, his expired client files, and Marks’s
perception that Sears’s customer service was poor.3
After their termination, plaintiffs brought suit in Illinois
state court alleging state law retaliation claims. NACA re-
moved to federal court and subsequently moved for summary
judgment. The district court granted NACA’s motion, conclud-
ing the plaintiffs had not offered sufficient evidence for a jury
to find in their favor regarding causation. Plaintiffs appeal,
arguing that the district court failed to construe the record in
the light most favorable to them and that both (1) the timing of
their firing in relation to their complaints, and (2) the evolution
of NACA’s interrogatory answers about the reasons for, and
the decision-makers involved in, their termination create an
inference that Reid and Sears were really fired for their
protected complaints.
II. Discussion
We review the district court’s summary judgment ruling de
novo. Abdullahi v. City of Madison, 423 F.3d 763, 769 (7th Cir.
2005). Summary judgment is warranted if the evidence, when
viewed in the light most favorable to the non-moving party,
presents “no genuine issue as to any material fact” such that
“the moving party is entitled to a judgment as a matter of law.”
Id. (citing Fed. R. Civ. P. 56(c)). A “court may not assess the
credibility of witnesses, choose between competing inferences
or balance the relative weight of conflicting evidence; it must
3
Marks testified that Jasinska was also selected for firing based on
an attendance problem in addition to her violations of the paperless
policy.
No. 13-1768 9
view all the evidence in the record in the light most favorable
to the non-moving party and resolve all factual disputes in
favor of the non-moving party.” Id. at 773.
To survive a motion for summary judgment on an Illinois
retaliatory discharge claim, a plaintiff must have offered
sufficient evidence for a jury to find that (1) the employer
discharged the employee (2) in retaliation for the employee’s
protected activities, and (3) that the discharge was in contra-
vention of a clearly mandated public policy. Palmateer v. Int’l
Harvester Co., 421 N.E.2d 876, 881 (Ill. 1981).
Plaintiffs were discharged after they complained that
NACA’s wage and hour practices and mortgage application
practices violated Illinois and federal law, which the parties
assume were protected complaints.4 Accordingly, the only
issue before us is whether plaintiffs proffered sufficient
evidence that their discharge was in retaliation for their
complaints. Simply put, the question is whether the plaintiffs
offered proof of causation. For the element of causation, “the
ultimate issue to be decided is the employer’s motive in
discharging the employee.” Hartlein v. Ill. Power Co., 601 N.E.2d
720, 730 (Ill. 1992).
Retaliation claims under Illinois law differ from federal
retaliation claims under the McDonnell Douglas framework,
where a plaintiff can present a prima facie case and shift the
4
Specifically, the Illinois Minimum Wage Law (“IMWL”), 820 ILCS 105/1,
et seq., the Illinois Residential Mortgage License Act (“IRMLA”), 205 ILCS
635/1-1, et seq., and the Secure and Fair Enforcement for Mortgage
Licensing Act (“SAFE” Act), 12 U.S.C. § 5101, et seq.
10 No. 13-1768
burden to the defendant to provide a legitimate reason for a
termination. Instead, Illinois law requires the plaintiff to offer
affirmative evidence of causation to survive summary judg-
ment. Gacek v. Am. Airlines, Inc., 614 F.3d 298, 300, 303 (7th Cir.
2010). Such evidence need not (and often will not) be direct
evidence of the employer’s motive, since an employer will
generally know better than to explicitly reveal that a discharge
is motivated by the employee’s protected complaints. Rather,
the evidence will typically be circumstantial. That includes
factual scenarios that give rise to a reasonable inference that
the employer’s motive was retaliatory. See Hugo v. Tomaszewski,
508 N.E.2d 1139, 1141 (Ill. App. Ct. 1987) (“A plaintiff in a
[retaliatory discharge case] will often be required to rely
heavily upon circumstantial evidence of the employer’s intent
… .”). Ultimately, we look at the record as a whole to see
whether a jury could reasonably infer that NACA’s motive for
firing Reid and Sears was retaliation for their complaints. See,
e.g., Zuccolo v. Hannah Marine Corp., 900 N.E.2d 353, 360 (Ill.
App. Ct. 2008) (summarizing the pertinent circumstances of the
whole record and concluding that “a rational trier of fact could
find that [the employer] had a retaliatory motive”).5
Preliminarily, plaintiffs argue that the district court failed
to properly apply the summary judgment standard and draw
certain inferences favorable to the plaintiffs from the evidence.
5
This method of proof correlates with the “direct method” in a federal
retaliation claim, where the plaintiff has the burden to prove causation
either by direct evidence or, as is more common, by a “convincing mosaic”
of circumstantial evidence. See Coleman v. Donahoe, 667 F.3d 835, 860 (7th
Cir. 2012) (explaining the use of circumstantial evidence in the direct
method).
No. 13-1768 11
Plaintiffs urge that, as we review de novo, we should draw two
inferences: first, that only Meadows, Cannonier, and Pride
(and not Marks) were involved in the decision to terminate the
plaintiffs; and second, that “NACA’s alleged reasons for
terminating” plaintiffs are “limited to” the reasons initially
“alleged” (that both Reid and Sears violated the paperless
policy and also that Reid left work early for the Bulls game).
Plaintiffs base their first proposed inference on NACA’s
omission of Marks’s name from its earliest interrogatory
answer about those individuals involved in plaintiffs’ termina-
tion. This initial omission is not a conclusive admission. The
interrogatory question was updated after Cannonier and
Meadows had consistently testified that Marks was involved
in the termination decision, which Marks’s and Pride’s later
testimony confirmed. Because every single witness with
personal knowledge consistently testified that Marks was
involved in the firing decision and the only contrary evidence
is an omission from a now-amended interrogatory answer, a
jury could not reasonably find that Marks was not involved.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (“The
mere existence of a scintilla of evidence in support of the
plaintiff’s position will be insufficient; there must be evidence
on which the jury could reasonably find for the plaintiff.”).
Plaintiffs’ second proposed inference is better viewed as an
argument that NACA’s later explanation of additional reasons
for plaintiffs’ termination should be viewed as evidence of
pretext (which could give rise to an inference of retaliatory
intent); as such, we turn to the record to discern whether an
12 No. 13-1768
inference of retaliatory intent is reasonable and address this
argument in due course.6
Plaintiffs make two main arguments in support of causa-
tion from the circumstances of their termination. First, that the
proximity in time of their termination to their complaints gives
rise to a reasonable inference of retaliatory intent. Second,
plaintiffs argue that NACA’s “‘moving target’ defense” of
shifting reasons for their termination and shifting positions on
who made the decision to fire them shows that the reasons are
pretextual and also gives rise to a reasonable inference of
retaliatory intent.
A. Timing
Plaintiffs argue that the fact that Sears had complained
three days, and Reid complained eleven days, before they were
fired gives rise to a reasonable inference of retaliatory animus.
In support, they rely on our decision in Loudermilk v. Best Pallet
Co., LLC, 636 F.3d 312, 315 (7th Cir. 2011). In Loudermilk, a
worker tasked with tearing down pallets complained about
racial discrimination when he (a black man) was tasked to do
a job that was normally done by two men, and when his
coworkers (Hispanic men) hurled racial epithets at him. Id. at
6
The parties also discuss a doctrine called “mend the hold,” whereby
insurance companies are required to stick to the first reasons they offer for
denying coverage. There is no reason to extend such a doctrine to retaliation
cases where the ultimate question is the employer’s intent and, as long as
the new reasons are offered during discovery, the plaintiff has ample time
to investigate and build an argument that they are pretextual. Besides,
because the plaintiffs raise this argument for the first time on appeal, it is
waived. Keene Corp. v. Int’l Fid. Ins. Co., 736 F.2d 388, 393 (7th Cir. 1984).
No. 13-1768 13
313–14. His complaints spanned about one month. Towards
the end of that month, he took pictures of the work that was
done (with the intent of later proving the work required two
men). Id. at 314. When management confronted him, he
reiterated his complaints and was told to “Put it in writing.”
He did so the next day and his manager “fired him on the
spot.” Id. In Loudermilk, we described the timing analysis this
way:
Suspicious timing may be just that—
suspicious—and a suspicion is not enough to get
past a motion for summary judgment. Occasionally,
however, an adverse action comes so close on the
heels of a protected act that an inference of causation
is sensible. Deciding when the inference is appropri-
ate cannot be resolved by a legal rule; the answer
depends on context, just as an evaluation of context
is essential to determine whether an employer’s
explanation is fishy enough to support an inference
that the real reason must be discriminatory.
Id. at 315 (citations omitted). We applied that analysis to the
facts of Loudermilk and concluded that an inference of discrimi-
natory intent was reasonable, so a jury should decide whether
it was appropriate. Id. We had reached a similar result before
in McClendon v. Ind. Sugars, Inc., 108 F.3d 789, 792 (7th Cir.
1997), also cited by plaintiffs. There, amidst an escalating
conflict where the employee accused the employer of discrimi-
nation and the employer counter-accused the employee of
insubordination, the employee filed a lawsuit and was fired
three days later. Id. at 792–93. Under the McDonnell Douglas
framework, we concluded that the “sequence of events [was]
14 No. 13-1768
sufficient” to reasonably infer retaliatory intent. Id. at 796–97.
Nonetheless, we granted summary judgment because the
employee failed to raise any genuine issue about his em-
ployer’s reasons for firing him (insubordination). Id. at 799.
An inference of retaliatory intent from the timing of Reid’s
and Sears’s discharges is not reasonable because the evidence
as a whole does not permit such an inference. In context, the
“sequence of events” leading to plaintiffs’ termination was six
months of occasional complaints. There is no evidence that
plaintiffs’ complaints escalated; if anything their complaints
became less serious—Reid had spoken to state and federal
regulators months before he was fired, but leading up to his
termination, he had only sent emails and made comments in
person or over the phone. All of Sears’s complaints were just
the occasional email or remark. Finally, plaintiffs’ termination
was immediately preceded by an intervening event unrelated
to their complaints—Pride, an executive unfamiliar with
plaintiffs or their complaints, discovered pervasive violations
of NACA’s paperless policy. Cf. Loudermilk, 636 F.3d at 314(decision to terminate made the moment plaintiff handed the
employer his written complaint).
Turning to the record as a whole, an inference of retaliatory
intent becomes even more unreasonable. Almost everyone in
the office, not just the plaintiffs, complained about the same
issues—wages and commission-splitting—but the others were
not fired. However, someone was fired simultaneously with
Reid and Sears, Mariola Jasinska, but there is no specific
evidence that she had made similar complaints (only the vague
statements that “everyone complained”). Further, although
Illinois retaliatory discharge law does not require an employer
No. 13-1768 15
to proffer reasons for firing an employee, NACA has. NACA
states it fired Reid for violating the paperless policy, letting
client files expire, having alcohol in his office, and leaving
work early for a Chicago Bulls game.7 NACA states that it fired
Sears because of his violations of the paperless policy and
because of Marks’s perception that his customer service was
poor. The timing in this case does not give rise to a reasonable
inference of retaliatory intent.
B. “‘Moving Target’ Defense”
In turn, plaintiffs argue that NACA’s defense of this case
has involved shifting and inconsistent positions that, along
with other evidence, point to pretext and retaliatory intent.
First, plaintiffs argue that NACA’s reasons for firing them
were pretextual because a violation of the paperless policy did
not by itself merit termination. The other reasons—alcohol,
expired documents, and poor customer service—were addi-
tional excuses for the earlier decision to terminate. Every
manager who testified thought that a violation of the paperless
policy was sufficient grounds to fire an at-will employee. The
only evidence that the plaintiffs cite to dispute that proposition
is Marks’s testimony. Marks said that the plaintiffs were not
fired merely for the paperless violation (though they could
7
Reid offers testimony that Martinez gave him permission to go to the
game, and so we assume that is true. But he offers no evidence that the
decision-makers—Cannonier, Marks, Meadows, and Pride—knew about
that dispute, nor has Reid offered any other evidence that the group that
decided to fire him did not genuinely believed those reasons were valid.
Gacek, 614 F.3d at 303 (an Illinois retaliatory discharge plaintiff “could not
have prevailed merely by proving that the reasons given by the airline for
firing him were unworthy of belief”).
16 No. 13-1768
have been) but for that violation and the plaintiffs’ additional
problems, because if everyone who had violated the policy had
been fired, the Chicago office would have had only one
employee left. Plaintiffs argue that this statement is evidence
that NACA management did not really believe that violating
the paperless policy alone merited termination. Plaintiffs
further argue that, because the other reasons for their termina-
tion were added later, that tends to indicate the reasons were
pretextual.
From day one, NACA has asserted that Reid and Sears
were fired based on their violations of the paperless policy and
Reid’s attendance issues, and all the managerial testimony
corroborates this. When Marks was deposed on August 16,
2012, he asserted that he was the final decision-maker, and
again corroborated these reasons. However, he also stated that
because so many people had violated the policy, he looked for
additional reasons to justify terminating any one particular
employee. Further, he testified that the alcohol that Pride had
found in Reid’s office, Reid’s incomplete and expired client
files, and Marks’s perception that Sears’s client service was
poor influenced his decision to select Reid and Sears for
termination.8 Pride’s testimony corroborated some of these
problems, and her photographs confirmed the presence of
alcohol in Reid’s office. Reid does not deny that he had bottles
of alcohol in his office, but states that they were unopened and
were just on display. But an employer’s reason need not be
good, just genuinely believed to be true. Everroad v. Scott Truck
8
Plaintiffs offer no evidence against their managers’ assessments of their
performance except their assertions that they performed satisfactorily.
No. 13-1768 17
Sys., Inc., 604 F.3d 471, 478 n.2 (7th Cir. 2010) (“So long as they
genuinely believed in the truth of their stated reason for the
decision, that reason is not pretextual.”). Despite these addi-
tional reasons, NACA’s interrogatory responses have always
listed only the violation of the paperless policy and Reid’s
leaving work early as the reasons for plaintiffs’ termination.
Plaintiffs contend that this is enough for a jury to reasonably
conclude that NACA did not really believe the reasons it gave
for firing plaintiffs. In reliance, plaintiffs cite our decision in
Hitchcock v. Angel Corps, Inc., 718 F.3d 733 (7th Cir. 2013).
In Hitchcock, we held that a jury could reasonably infer that
proffered reasons for a termination were pretext because they
were shifting and inconsistent. Id. at 738 (citing Rudin v. Lincoln
Land Cmty. Coll., 420 F.3d 712, 726 (7th Cir. 2005)). A couple of
months after Hitchcock had discovered she was pregnant, she
visited a patient at her home. Id. at 734–35. Upon arriving, she
found she was unable to access the patient because of the
strange behavior of the patient’s son, and it was later deter-
mined that the patient had been dead for a couple days. Id. at
736. Nonetheless, her employer fired her and provided
multiple reasons including: that she had assessed a dead
patient; that she took actions that compromised that patient’s
health and safety; that she would have compromised the health
and safety of the patient (had she not been dead) by failing to
do something because of the son’s intimidating behavior; and,
finally, later in litigation, that she had performed a deficient
assessment of the dead patient (without any specifics about
how the assessment was deficient). Id. at 738. Unsurprisingly,
we held that a jury could reasonably find holding someone
accountable for compromising the health of an already-dead
18 No. 13-1768
patient was a pretextual reason, and the later inconsistent shifts
were also indicative of pretext.
But NACA’s reasons suffer from no such infirmities. From
the moment of plaintiffs’ termination to this very day, NACA
has consistently maintained that the main reason for plaintiffs’
termination was their violation of the paperless policy. Every
manager involved in the termination consistently gave the
violation of the paperless policy as the main reason. Marks’s
additional reasons are not inconsistent, and were not a shift
from the main reason. He explained why some employees who
violated the paperless policy were terminated and other were
not. See Schuster v. Lucent Techs., Inc., 327 F.3d 569, 579 (7th Cir.
2003) (holding that “an additional, not necessarily inconsistent
reason for the employment decision, rather than an abrupt
change in explanation” does not give rise to an inference that
the reasons are pretextual). A jury might reasonably be
suspicious if the people with additional problems who were
fired were complainers and those who were retained were
non-complainers, but that is not the case. Numerous other
employees who complained and violated the policy were not
fired while Jasinska was fired for violating the policy with no
evidence of her having complained save the assertion that
“everyone complained.” Plaintiffs’ manager, Norma Martinez,
was also terminated afterwards, in part because of the perva-
sive violations of the paperless policy.
Second, plaintiffs argue that NACA’s shift respecting who
the decision-makers were gives rise to an inference of mendac-
ity, and therefore, retaliatory intent. We disagree. NACA’s in-
house counsel answered the interrogatories with the informa-
tion he had at the time about who was involved in the decision
No. 13-1768 19
to fire plaintiffs. When every manager later testified that Marks
was involved, NACA changed the interrogatory answer and
Marks was deposed. He testified that, as CEO, he was the final
authority on the firing decision. NACA changed its strategy to
assert the same, no doubt pleased that the undisputed evidence
showed that Marks had no knowledge of the plaintiffs’
complaints. To account for this shift, we have viewed the
evidence in the light most favorable to the plaintiffs and said
that a jury could believe that Marks was not the sole decision-
maker. But this shift in litigation strategy does not bear on the
decision-makers’ intent; if the decision really was made by
Pride, Cannonier, and Meadows, in addition to Marks, the fact
that Marks later claimed full responsibility does not mean that
it would be reasonable to infer that the decision-makers acted
with a retaliatory intent when making the decision. See
Schuster, 327 F.3d at 579 (“the changing story as to who
actually participated in the decision … is also insufficient to
raise a question as to whether the … reasons given are merely
pretextual”).
In sum, though plaintiffs had made protected complaints
shortly before their termination, the same complaints had been
going on for some time and, if anything, had declined in
gravity. NACA asserts that it fired the plaintiffs for various
policy violations, which the undisputed evidence shows that
the decision-makers genuinely believed. The reasons NACA
offered, though they were later added to in order to explain
why others were not terminated, were not shifting or inconsis-
tent, and there was no suspicious pattern in the employees it
chose to fire or retain. Viewing the evidence as a whole, we
agree with the district court that an inference of retaliatory
20 No. 13-1768
intent is not reasonable. Because there is also no direct evi-
dence, plaintiffs have failed to create a genuine issue about the
material fact of causation. Therefore, summary judgment for
NACA was appropriate.
III. Conclusion
Plaintiffs alleging retaliatory discharge in Illinois are
required to produce evidence sufficient for a jury to reasonably
infer that they were terminated in retaliation for their protected
complaints. Because plaintiffs have not done so, summary
judgment in favor of NACA was appropriate. The judgment of
the district court is AFFIRMED.