Linzie Ledbetter v. Good Samaritan Ministries ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-2822
LINZIE J. LEDBETTER
Plaintiff-Appellant,
v.
GOOD SAMARITAN MINISTRIES, BOBBY ANDERSON, and
MICHAEL HEATH,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 3:13-cv-00308-DRH-SCW — David R. Herndon, Judge.
____________________
ARGUED JANUARY 27, 2015 — DECIDED FEBRUARY 6, 2015
____________________
Before POSNER, SYKES, and HAMILTON, Circuit Judges.
POSNER, Circuit Judge. Linzie Ledbetter filed suit under
Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981
against his former employer, Good Samaritan Ministries of
Carbondale, Illinois, a tax-exempt nonprofit organization
that provides services to needy people in the Carbondale ar-
ea by means of “an emergency shelter, a transitional housing
program, a soup kitchen, a food pantry, and an emergency
2 No. 14-2822
assistance program.” “Good Samaritan Carbondale—Needs
Your Help: What We Do,” http://goodsamcarbon
dale.org/index.html (visited Feb. 2, 2015). He named two of
the organization’s supervisory employees (Anderson and
Heath) as additional defendants. The suit charged retaliation
for Ledbetter’s having filed a charge of racial discrimination
and of retaliation with the EEOC. The district court granted
summary judgment in favor of the defendants and dis-
missed the suit, precipitating this appeal.
The plaintiff, who had begun working for Good Samari-
tan in 2007, was assigned to the shelter. In June 2010 a resi-
dent of the shelter complained to defendant Michael Heath,
the executive director of Good Samaritan, that she was upset
and afraid after Ledbetter had reprimanded her for not
completing her assigned chores—even though, according to
another member of the shelter staff, she had been excused
from completing them—and had threatened to evict her
from the shelter. Defendant Bobby Anderson, Ledbetter’s
immediate supervisor, conferred with Heath about the inci-
dent and the two then met with Ledbetter and warned him
that future misbehavior could result in disciplinary action
up to and including discharge.
The same month (June of 2010) Ledbetter filed a charge
of racial discrimination and of retaliation with the EEOC. On
September 24, 2010, having received his right to sue letter, he
filed an employment discrimination suit against Good Sa-
maritan in federal court, charging both retaliation and racial
discrimination against him (he is black) by Heath (who is
white) and Anderson (who is black), based on their warning
to him—for he denied having engaged in any improper be-
havior toward the resident who had complained about him.
No. 14-2822 3
The defendants claim they first learned of this suit on Octo-
ber 21, 2010, when they were served. The suit was eventually
dismissed for failure to state a claim, and there was no ap-
peal.
According to the defendants, four days after Ledbetter
filed that suit one of Good Samaritan’s supervisory employ-
ees complained to executive director Heath about having
been frightened and humiliated by Ledbetter over employee
access to the shelter’s computer games, which Ledbetter
complained the supervisor had revoked. Anderson and
Heath warned Ledbetter about the possible consequences of
his alleged misconduct.
On October 5 Heath and the president of Good Samari-
tan’s board of directors met with Ledbetter and again
warned him about intimidating residents and coworkers (for
remember that the second incident of alleged intimidation
had occurred just a week earlier). According to Heath and
Anderson, after that meeting Ledbetter falsely accused
members of both the staff and the board of directors of the
institution of lying and of trying to get him fired (Ledbetter
denies having made these accusations, which have not been
specified). On October 14—nine days after the warning by
the executive director and the board president—Heath and
Anderson met and, the defendants claim, decided to fire
Ledbetter.
The day before the October 5 meeting with Heath and the
board president, Ledbetter had filed a charge with the EEOC
alleging that he was being discriminated against regarding
scheduling and overtime because of his race, his first EEOC
charge, and the warning he had received regarding the the
September 2010 incident with a supervisor.
4 No. 14-2822
Heath and Anderson did not learn of the new charge un-
til October 19, and the next day Anderson told Ledbetter
that he was fired. The present suit alleges that he was fired
in retaliation for filing that charge, which remember was his
second. The defendants riposte that he was fired for an unre-
lated reason—necessarily, according to them, because they’d
decided to fire him on October 14, five days before they had
learned of the new charge.
Ledbetter was of course not present when Heath and
Anderson met on October 14, so he cannot testify to what
they agreed to at that meeting. But, by the same token there
was nothing to prevent them from lying about what they
agreed to at that meeting or shading their testimony. There
is no documentation that the meeting occurred or, if it did,
of what was said at it. Maybe they agreed that Ledbetter’s
days with the institution were numbered, that he was a
problem employee inessential to the healthy operation of
Good Samaritan, and that sooner or later he would have to
go—for they did not fire him on the spot; they dawdled. We
can’t know how long they would have dawdled—but it is a
possible inference that they fired him on the twentieth rather
than later (or maybe never) because the filing of his second
EEOC charge, which they learned about the day before, was
the last straw. An EEOC charge is often a preliminary to a
suit. His first EEOC charge had eventuated in a suit; the sec-
ond was likely to as well; how many more would there be?
It is possible, given that Heath and Anderson seem to
have been in no hurry to execute the “decision” they alleged-
ly made on October 14 to fire him, that had it not been for
his filing the second charge he would have remained em-
ployed, at least for a time; and if so then his being fired on
No. 14-2822 5
October 20 was, in part anyway, retaliation for his filing the
second charge with the EEOC. If this is correct—if Heath
and Anderson were waiting for the second shoe to drop be-
fore executing their decision, which may have been tenta-
tive, to fire him, and the second shoe was his second EEOC
charge—then the present suit (which followed his third
EEOC charge and was based on his being fired allegedly in
retaliation for his filing the second charge) should not have
been dismissed. The timing—Ledbetter was fired the day
after the second shoe dropped—is suspicious, as in Casna v.
City of Loves Park, 574 F.3d 420, 426–27 (7th Cir. 2009). And
the defendants do not contend that Ledbetter was or could
have been fired on the distinct ground that his EEOC charg-
es or suits were frivolous or filed in bad faith, as in Mattson
v. Caterpillar, Inc., 359 F.3d 885 (7th Cir. 2004).)
There is much more that is odd about the case—none of it
remarked by the district court. The affidavits of Heath and
Anderson on which the court based summary judgment in
the defendants’ favor are each only a page long and each
states only, so far as Ledbetter’s termination is concerned,
that “I affirmatively state that each and every fact attributed
to me in Defendants’ Motion for Summary Judgment and
Supporting Memorandum is true and correct to the best of
my knowledge.” That’s an odd mode of testifying (an affi-
davit is sworn testimony), and allows an inference that the
affiants were parroting language inserted by the lawyers in
what amounted to pleadings. It’s true that we held this type
of affidavit valid in Dale v. Lappin, 376 F.3d 652, 655 (7th Cir.
2004), but the affiant in that case was a prison inmate and
the factual allegations that the affidavit stated were true
were allegations contained in his own response to the de-
fendants’ motion for summary judgment.
6 No. 14-2822
The present case is closer to Payne v. Pauley, 337 F.3d 767,
772–73 (7th Cir. 2003), which emphasizes the requirement in
Fed. R. Civ. P. 56 that the affidavit of a lay witness be based
on the witness’s personal knowledge. The affidavits of
Heath and Anderson don’t say they’re based on the affiants’
personal knowledge. Nor do the two documents that the af-
fidavits incorporate by reference. The requirement that an
affidavit be based on the affiant’s personal knowledge is
crucial in this case. Heath and Anderson have no personal
knowledge that Ledbetter made any false accusations after
the October 5 meeting; the allegation that he did was hear-
say. Indeed there is no admissible evidence that the events
they contend were the reason for firing Ledbetter ever hap-
pened.
The motion for summary judgment is only two pages
long, and all it says regarding Ledbetter’s termination is that
“the undisputed evidence is that the decision to terminate
[him] was made before October 19, 2010” and “the undisput-
ed evidence is that Defendants learned of [his] EEOC charge
on October 19” (emphases in original). The Supporting
Memorandum adds a bit of detail, stating that “Anderson
made the decision to terminate Plaintiff; a decision endorsed
by Heath. … On or about October 14, 2010, the combination
of Plaintiff’s conduct and his false accusations prompted
Heath and Anderson to discuss possible immediate termina-
tion of Plaintiff. Anderson, as Plaintiff’s immediate supervi-
sor, made the decision to terminate Plaintiff during that
meeting.” The reference to “false accusations” gives us
pause. For aught that appears, these could be the accusations
made in Ledbetter’s first or second EEOC charge, in which
event the decision to fire him could well have been retalia-
tion for his filing either or both of those charges.
No. 14-2822 7
The “or about” in the Supplementary Memorandum
gives us further pause. Apparently the defendants don’t
know the date of the meeting, though the date is crucial—
their defense hinges on its being before October 19. “On or
about” is said, moreover, only about the crucial October 14
meeting—the meeting that one would have expected Ander-
son and Heath to have precise knowledge of.
In addition to his supervisory job (and indicative that he
cannot have climbed far up Good Samaritan’s totem pole—
maybe not far enough to fire Ledbetter unilaterally), Ander-
son worked as a nurse in addition to his job at Good Samari-
tan. The Supplementary Memorandum states that “between
October 15, 2010, and October 19, 2010, Anderson worked 12
hour shifts at his nursing job. Even though the decision [to
fire Ledbetter] was made a week prior, Anderson was una-
ble to meet with Plaintiff to communicate his decision to
terminate him until October 20, 2010, because of this work
schedule.” This is thoroughly self-serving testimony (treat-
ing it as incorporated by reference in Anderson’s terse affi-
davit), and none too plausible. And though most testimony
by a party to a lawsuit is self-serving and is not to be rejected
on that account, Widmar v. Sun Chemical Corp., 772 F.3d 457,
459–60, 460 n.1 (7th Cir. 2014), one would expect Good Sa-
maritan to have backed up Anderson’s affidavit with a rec-
ord of some sort showing that he’d indeed worked 12-hour
shifts between the 15th and the 19th and so mayn’t have had
time to speak to Ledbetter. Yet if his 12-hour shifts were real-
ly between those days, as the Supplementary Memorandum
states, he could have told Ledbetter on the 19th that he was
fired.
8 No. 14-2822
We can find no document backing up Anderson’s testi-
mony. Nor was his lawyer able to answer our question at
oral argument why Anderson was so eager to be the one to
tell Ledbetter of his termination. Ledbetter was answerable
to other supervisors as well as to Anderson, and one of those
supervisors could have been told to give Ledbetter the bad
news. One would think that if Ledbetter was as irascible and
intimidating a figure as the defendants claim, Good Samari-
tan would have terminated him immediately upon deciding
to fire him.
Notice too that if the critical meeting about Ledbetter’s
fate occurred not on October 14 but on October 13, Anderson
could have told Ledbetter the next day that he was fired,
while if it occurred on October 15 he could have told him
that day. For Anderson wasn’t working 12 hours as a nurse
that day unless “between” is taken to mean October 16
through October 18—in which event, as we pointed out, he
could have notified Ledbetter of the firing on October 19.
Further muddying the waters, in response to an interrog-
atory asking the date of this meeting Heath stated that he
“does not recall specific dates, but there was more than one
discussion regarding Bobby Anderson’s decision that Plain-
tiff should be terminated.” Likewise Anderson stated that
“he does not recall the specific day he came to that conclu-
sion” (to fire Ledbetter). These interrogatory answers are in-
consistent with the defendants’ claim that the decision to fire
him was made on October 14.
Finally Ledbetter claims that when he was summoned to
meet with Anderson on the 20th, Anderson, who of course
had learned the previous day that Ledbetter had filed a sec-
ond charge with the EEOC, before firing him asked him
No. 14-2822 9
whether he had indeed filed a second charge and he
acknowledged that he had. The implication is that if Ledbet-
ter had said “no,” Anderson would have held off firing him
until he could verify the truth of the denial. If this is correct,
then the firing of Ledbetter was indeed retaliatory.
There is still more to make us wonder what was really
going on. In response to Ledbetter’s second charge, Good
Samaritan’s lawyer wrote the EEOC: “On October 20, 2010,
Ledbetter was terminated subsequent to his display of defiant
and insubordinate behavior towards his immediate supervi-
sor, Bobby Anderson” (emphasis added). That’s inconsistent
with the defendants’ assertion that he was fired not because
of any misbehavior toward Anderson but because of false
accusations and mistreatment of coworkers and of residents
that occurred before October 14. In addition, the letter
doesn’t say that the decision to terminate Ledbetter was
made on October 14—another indication that the defendants
may have concocted that date.
There are too many loose ends to have justified the dis-
trict court in granting summary judgment in favor of the de-
fendants. The judgment is therefore reversed and the case
remanded. Ledbetter, who has no legal training, has been
representing himself throughout this litigation. The district
court should consider requesting a lawyer to represent him
in the further proceeding that we are ordering.
REVERSED AND REMANDED.