In the
United States Court of Appeals
For the Seventh Circuit
No. 09-1020
B RUCE C ASANOVA,
Plaintiff-Appellee,
v.
A MERICAN A IRLINES, INC.,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 06 C 4762—Ronald A. Guzmán, Judge.
A RGUED S EPTEMBER 25, 2009—D ECIDED A UGUST 5, 2010
Before E ASTERBROOK, Chief Judge, and K ANNE and
S YKES, Circuit Judges.
E ASTERBROOK, Chief Judge. American Airlines ter-
minated Bruce Casanova’s employment as a baggage
handler. He sued, contending that the airline had retali-
ated against him for claiming workers’ compensation
benefits. Illinois deems such retaliation tortious. See
820 ILCS 305/4(h); Kelsay v. Motorola, Inc., 74 Ill. 2d 172,
384 N.E.2d 353 (1978). A jury returned a verdict of more
than $1 million: $112,000 for lost wages, $250,000 for emo-
2 No. 09-1020
tional injury, and $724,000 for punitive damages. The
district judge denied the employer’s post-judgment
motions. 2008 U.S. Dist. L EXIS 97795 (N.D. Ill. Dec. 3,
2008). The judgment is defective—it says that the jury
decided in plaintiff’s favor but omits the relief—but
nonetheless appealable because the litigation plainly is
over in the district court. Bankers Trust Co. v. Mallis, 435
U.S. 381 (1978).
Casanova did not apply for workers’ compensation
benefits until several months after he had been fired, but
he contends, and the jury must have concluded, that
American Airlines knew that an application was forth-
coming. He sprained his left arm (or perhaps tore a
muscle in his left shoulder) on a Friday when lifting a
golf bag. The next Monday, toward the end of his shift,
he reported this injury to a supervisor, who sent him
to the firm’s medical center at O’Hare International
Airport, which instructed Casanova not to use his left
arm pending a further evaluation. The supervisor also
reported this injury to Specialty Risk Services, which
handles all injury and workers’ compensation matters
on the airline’s behalf. This report to SRS is the founda-
tion for Casanova’s contention that his discharge was
a form of anticipatory retaliation for the compensation
claim that was likely to ensue.
The supervisor was skeptical of Casanova’s assertions,
because he told her that he was in too much pain to
participate in the airline’s standard post-injury debriefing
(it needs to know what happened so that repetition can
be prevented) yet had waited three days to report the
No. 09-1020 3
injury and had worked most of a shift between the
injury and the report. That Casanova answered a phone
call with his left hand, without any apparent discomfort,
further piqued the supervisor’s interest. Other super-
visory personnel at American Airlines decided that
Casanova should be placed under surveillance to see
whether he used his left arm. The two persons who
watched Casanova reported that he did, frequently,
and that he also drove his car even though his physician
had instructed him not to drive until the injury healed.
The pictures they took of these events were too grainy
to be useful, but their information led the airline to
direct Casanova to participate in an “Article 29F hearing.”
(The reference is to the part of the collective bargaining
agreement that permits American Airlines to require
its employees to appear and answer questions.) Casanova
did not cooperate. Managers asked him about the in-
jury and his activities since. Casanova usually replied:
“I don’t recall.” He could not recall where or how he
had hefted the golf bag, or what flight it had been on. He
could not recall any of his activities during the days
after he had reported the injury. When asked whether
“I don’t recall” would be his complete statement about
the events, Casanova said: “I don’t recall.” He did, how-
ever, give concrete answers to several questions. When
he was asked whether he had used his left arm at all
during the days after the injury, he replied: “No.” At
trial, he admitted that this was a lie, which he justified
by telling the jurors that he just didn’t care what answers
he was giving, because he was distraught and wanted
the interrogation to end.
4 No. 09-1020
After the oral part of the procedure, the next step is
a written statement. Managers directed Casanova to
narrate in writing how the injury had occurred and what
had happened later. Casanova refused. Eventually he
produced two handwritten pages, but they do not con-
tain any relevant information. Instead they protest the
airline’s decision to hold an Article 29F inquiry and assert
that subjecting him to questions “has inflicted severe
emotional distress upon me. . . . The procedures that
American Airlines uses are harassing and intimidating.”
Managers told Casanova that this statement did not
meet the requirements of the collective bargaining agree-
ment; he declined to add anything, asserting that oral
responses should suffice. He was fired that afternoon
for lying during the hearing (the patter of “I don’t re-
call” was transparent dissembling) and insubordina-
tion (refusal to prepare a written narrative).
Which poses the question: How could a jury return
a verdict in Casanova’s favor, and award more than
$1 million, when the discharge is amply supported by
undisputed facts? (Casanova concedes lying and feigning
forgetfulness, and his written statement, which does not
mention the injury and its aftermath, is part of the rec-
ord.) How could the district judge deny a post-verdict
motion under Fed. R. Civ. P. 50? The answer appears to
be that the trial was hijacked by plaintiff’s counsel and
used to protest the Article 29F procedure. Instead of
asking the jury to decide whether the (anticipated)
request for workers’ compensation, as opposed to the
insubordination, caused the discharge, counsel asked
the jury to decide whether American Airlines should
No. 09-1020 5
order surveillance of employees who claim to be injured,
and whether employers should use such surveillance as
the basis of interrogation.
The district judge’s order denying the Rule 50 motion
said that the evidence supports the verdict because the
injury was a but-for cause of the discharge. But for the
injury, there would not have been a meeting between
Casanova and the supervisor, and American Airlines
would not have concluded that Casanova was likely to
seek workers’ compensation benefits. But for the super-
visor’s suspicions (caused by the delayed report, plus
Casanova’s use of his left arm despite claiming pain
too intense to engage in debriefing), surveillance would
not have occurred. The memorandum justifying
the surveillance mentions that Casanova has been
injured several times, which the employer sees as a
reason to look into the possibility of deceit. But for
the surveillance, American Airlines would not have
directed Casanova to participate in an Article 29F pro-
ceeding. But for the Article 29F proceeding, Casanova
would not have lied and been insubordinate. But for
the dishonesty and defiance, he would not have been
fired. Hence the potential compensation claim caused
the discharge. So the jury, too, must have reasoned—if
it did not award damages for the employer’s temerity
in asking its employee to explain himself.
This case never should have reached a jury. Undisputed
facts require judgment in the employer’s favor. Plaintiff’s
counsel and the district judge have confused neces-
sary with sufficient conditions. Casanova’s claim of in-
6 No. 09-1020
jury (which implied that sooner or later he would want
workers’ compensation benefits) was a necessary condi-
tion of the discharge. But it was not a sufficient condi-
tion. Cf. United States v. Hatfield, 591 F.3d 945 (7th Cir.
2010) (discussing the many different senses in which
judges, and logicians, use the concept of causation).
Thousands of employees receive workers’ compensation
benefits from American Airlines every year without
being fired; Casanova himself had received bene-
fits several times yet remained an employee in good
standing. Some baggage handlers have made ten or
more compensation claims, returning to active duty
after each injury healed. So a claim of workers’ compensa-
tion benefits does not lead to discharge at American
Airlines. What does—what was the sufficient cause of
Casanova’s discharge—is dissembling and insubordina-
tion. American Airlines has a zero-tolerance policy for
material lies by its workers. Casanova has not identified
any other worker who behaved in a similar fashion at
and after an Article 29F hearing and was not fired.
Indeed, it is almost impossible to conceive that any em-
ployee who conducted himself in this fashion would not
be fired, by American Airlines or any other employer
that wants to maintain the respect and obedience of
its labor force. If Casanova had been retained on the
payroll, American Airlines could have kissed the
Article 29F procedure goodbye.
Just the other day we held that Illinois permits em-
ployers to use surveillance to test the bona fides of a
workers’ compensation claim, and we deemed a suit
No. 09-1020 7
similar to Casanova’s to have been frivolous. Gacek v.
American Airlines, Inc., No. 09-3131 (7th Cir. July 15, 2010).
That conclusion has the strong support of Clemons v.
Mechanical Devices Co., 184 Ill. 2d 328, 704 N.E.2d 403
(1998), which rejected an argument that but-for causa-
tion is enough to establish retaliatory discharge.
An employee on leave following an injury wanted
immediate payment for work he had performed before
the injury. The employer replied that these wages
would be in the next scheduled payroll; the employee
demanded faster payment. When the employer told
him that the only way to be paid earlier was to quit—for
state law requires full payment on an employee’s last
day—the worker again insisted on having the money
instantly. The employer complied and told the em-
ployee that this ended his employment. In the ensuing
suit, a jury concluded that the workers’ compensa-
tion claim was a but-for cause of the discharge, and the
Supreme Court of Illinois reversed. It held that, if an
employer argues that some supervening cause explains
the discharge, the worker can recover only by estab-
lishing that the employer’s explanation is pretextual. A
mistake differs from a pretext, the court added: the em-
ployer in Clemons was wrong in believing that state law
entitled it to defer payment until the next pay period, but
as long as the belief was sincere it meant that the plaintiff
had not established the required form of causation. See
also, e.g., Grabs v. Safeway, Inc., 395 Ill. App. 3d 286, 917
N.E.2d 122 (2009), and Finnerty v. Personnel Board, 303 Ill.
App. 3d 1, 707 N.E.2d 600 (1999), which like Clemons reject
the argument that a fired worker can establish causation
8 No. 09-1020
by showing that a workers’ compensation claim set in
motion a chain of events that ended in discharge.
American Airlines offered Casanova’s conduct at and
after the Article 29F hearing as the explanation for his
discharge. He did not provide evidence from which a
reasonable jury could conclude that this explanation
was pretextual (meaning that the employer did not
itself believe it). Indeed, he did not try. He conceded
that he had lied and refused to follow directions. He
did argue that the employer should not have used the
Article 29F procedure, but no rule of Illinois law disables
employers from requiring workers to answer questions
related to their injuries—and, as Clemons shows, even if
the employer’s invocation of the Article 29F procedure
had been unwarranted (which it was not), still the right
question would be whether Casanova’s balking was a
sufficient reason for his discharge. This record does not
present a material dispute about why Casanova lost his
job. American Airlines is entitled to judgment as a
matter of law under Rule 50.
R EVERSED
8-5-10