In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1846
K EVIN L OUDERMILK,
Plaintiff-Appellant,
v.
B EST P ALLET C OMPANY, LLC, and D AN L YONS,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Western Division.
No. 08 C 6869—Philip G. Reinhard, Judge.
A RGUED O CTOBER 6, 2010—D ECIDED F EBRUARY 18, 2011
Before E ASTERBROOK , Chief Judge, and W OOD and
E VANS, Circuit Judges.
E ASTERBROOK , Chief Judge. Kevin Loudermilk worked
at Best Pallet Company, where his principal task was to
disassemble pallets and stack the wood for reuse.
Multiple employees worked simultaneously on a “tear-
down machine.” Laborers at one end broke pallets into
pieces, which were passed to others for stacking.
Loudermilk contends that each side of the machine in
2 No. 10-1846
the stacking area should have had at least two workers,
but that Best Pallet assigned its staff so that two or more
Hispanic workers were on one side, while Loudermilk
(who is black) worked alone on the other. He could
not keep up and was criticized for allowing boards to
fall, and when he complained about the lack of help the
Hispanic workers hurled racial epithets. He complained
in turn about these taunts; management did nothing,
Loudermilk says. (All of this opinion’s factual narrative
comes from Loudermilk’s allegations and evidence,
which we must accept for current purposes.)
During April 2006 Loudermilk lodged several com-
plaints with management. He began to talk about filing
a charge with the EEOC. On April 25 he took some
pictures of the work area, apparently to show the
agency (and, if necessary, a court) how the tear-down
machine was set up and why it needed two stackers
on each side. Dan Lyons, a supervisor, told him to stop
taking pictures. When Loudermilk reiterated his con-
cerns about being treated differently from the Hispanic
workers, Lyons told him: “Put it in writing.” Loudermilk
did just that and handed Lyons a note the next day.
Lyons fired him on the spot. Loudermilk then filed a
charge of discrimination with the EEOC, which con-
cluded that Best Pallet probably had engaged in racial
discrimination and retaliation. Best Pallet declined to
settle the charge during the administrative process,
however, so the EEOC sent Loudermilk a right-to-sue
letter, and he sued.
Title VII of the Civil Rights Act of 1964 forbids retalia-
tion against anyone who “has opposed any practice
No. 10-1846 3
made an unlawful employment practice by this sub-
chapter, or because he has made a charge, testified, as-
sisted, or participated in any manner in an investigation,
proceeding, or hearing under this subchapter.” 42 U.S.C.
§2000e–3(a). See generally Thompson v. North American
Stainless, LP, No. 09–291 (U.S. Jan. 24, 2011). As the case
comes to us, Loudermilk has a single claim for relief:
that Best Pallet fired him because he “opposed” its
practice of favoring Hispanic over black workers. He
makes this contention under the “direct” method, as
opposed to the burden-shifting “indirect” method of
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and
its successors.
The district court granted summary judgment for
defendants, concluding that Loudermilk lacks evidence
that his opposition to racial or national-origin discrim-
ination caused his discharge. As the court saw things,
Loudermilk’s only evidence is timing: he handed Lyons
a note and was fired. Lyons had not read the note, so he
did not know that it contained a complaint about racial
discrimination. Anyway, the judge thought, a temporal
sequence does not show causation. Post hoc ergo propter
hoc is the name of a logical fallacy, not a means to
prove causation.
One problem with this approach is that it takes defen-
dants’ view of the evidence rather than Loudermilk’s.
Best Pallet insists that Lyons did not read the note
before firing Loudermilk, but Lyons himself says that he
did read it (though Lyons maintains that Loudermilk
delivered the note some days before being fired). When
4 No. 10-1846
ruling on a motion for summary judgment, the party
opposing the motion gets the benefit of all facts that a
reasonable jury might find. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242 (1986); Celotex Corp. v. Catrett, 477 U.S. 317
(1986). A jury would be entitled to believe that Lyons
read the note. Indeed, a jury would be entitled to find
that Lyons knew the content of the note whether he read
it or not. Only the day before, Loudermilk had made
an oral complaint about racial discrimination, and Lyons
had told him to “[p]ut it in writing.” What did Lyons
think was in the note he received the next day? An in-
vitation to a birthday party?
Best Pallet says that it fired Loudermilk not because
of the note’s content, but because he had taken pictures
of the work site, in violation of company policy. But it
did not give that explanation to Loudermilk—or for that
matter the EEOC. Best Pallet told the agency that it let
Loudermilk go as part of a reduction in force (though
Loudermilk’s name was not on a list of workers that
had been prepared for that purpose). In court it aban-
doned that explanation and contended that Loudermilk
had resigned, or that his departure was a “mutual deci-
sion.” Since Loudermilk says that he did not resign,
that explanation can’t prevail at the summary judg-
ment stage. This led to the “fired for photography” con-
tention, which is problematic not only because the no-
photography policy may have been cooked up after the
fact, but also because it comes close to conceding retaliation.
If the reason that Loudermilk snapped the photos was
to bolster his claim of discrimination, then forbidding
No. 10-1846 5
picture-taking looks a lot like an attempt to block the
gathering of evidence during an investigation.
We don’t say that §2000e–3(a) allows workers to break
locks and rifle managers’ desk drawers in search of evi-
dence; our point is that a “policy” that may have been
devised to curtail an investigation is not the sort of
neutral rule that would adequately explain a discharge.
The Civil Rights Act of 1964 does not require employers
to have “just cause” for sacking a worker, see Pollard v. Rea
Magnet Wire Co., 824 F.2d 557 (7th Cir. 1987), but an
employer who advances a fishy reason takes the risk
that disbelief of the reason will support an inference that
it is a pretext for discrimination. See Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 146–49 (2000); St.
Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993); Texas
Department of Community Affairs v. Burdine, 450 U.S. 248
(1981).
The discharge’s timing also could support an adverse
inference by a reasonable trier of fact. Suspicious timing
may be just that—suspicious—and a suspicion is not
enough to get past a motion for summary judgment. See
Lewis v. Chicago, 496 F.3d 645, 656 (7th Cir. 2007). Occasion-
ally, however, an adverse action comes so close on the
heels of a protected act that an inference of causation
is sensible. See, e.g., Clark County School District v.
Breeden, 532 U.S. 268, 273 (2001) (“very close” temporal
proximity can suffice); Casna v. Loves Park, 574 F.3d 420,
427 (7th Cir. 2009); Spiegla v. Hull, 371 F.3d 928, 943 (7th
Cir. 2004); McClendon v. Indiana Sugars, Inc., 108 F.3d 789,
796–97 (7th Cir. 1997). Deciding when the inference
6 No. 10-1846
is appropriate 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. The district
court’s apparent belief that timing never supports an
inference of causation is untenable. The closer two
events are, the more likely that the first caused the sec-
ond. We think that an inference of causation would
be reasonable here. A jury, not a judge, should decide
whether the inference is appropriate.
Defendants contend that Loudermilk’s complaints
were too vague, but §2000e–3(a) does not have a vague-
ness exception. The question is whether the employee
opposed an unlawful employment practice—at least, one
that the employee reasonably believed to be unlawful.
See Fine v. Ryan International Airlines, 305 F.3d 746, 752
(7th Cir. 2002). (Frivolous complaints are not protected.
See Mattson v. Caterpillar, Inc., 359 F.3d 885, 890 (7th Cir.
2004).) The evidence in this record would allow a rea-
sonable person in Loudermilk’s position to conclude that
Best Pallet favored Hispanic over black workers with
respect to material conditions of employment, condoned
a racially hostile workplace, and thus violated Title
VII. Loudermilk’s protests were protected. Whether
Loudermilk was right in his belief does not matter.
The judgment is reversed, and the case is remanded
for trial.
2-18-11