Casanova v. American Airlines, Inc.

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

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