Anthony Hill v. Daniel M. Tangherlini

In the

United States Court of Appeals

For the Seventh Circuit

No. 12-3447

ANTHONY M. HILL,

Plaintiff-Appellant,

v.

DANIEL M. TANGHERLINI,

Administrator of the General

Services Administration,

Defendant-Appellee.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 11 C 2144 — Virginia M. Kendall, Judge.

ARGUED JULY 9, 2013 — DECIDED AUGUST 1, 2013

Before E ASTERBROOK , Chief Judge, and P OSNER

and WILLIAMS, Circuit Judges.

2 No. 12-3447

WILLIAMS, Circuit Judge. Anthony Hill appeals the grant of

summary judgment for his former employer, the General

Services Administration, in this employment-discrimination

lawsuit. He challenges the district court’s conclusion, based on

three negative interactions with coworkers, that he was not

meeting GSA’s workplace expectations. Because Hill has not

made out a prima facie case of discrimination and shown that

GSA lied about its reasons for firing him, we affirm.

Hill, who is African American, began working for the

General Services Administration in 2008 as part of the Federal

Career Intern Program. He soon realized that his Master’s

degree entitled him to a higher pay rate, and he filed a com-

plaint with the Equal Employment Opportunity Commission,

contending that his lower pay was discriminatory. The parties

settled, and Hill received the higher rate.

Hill maintains that he acted calmly and professionally

during his one-year probationary period. His coworkers,

however, complained to their supervisors about Hill’s temper

on three occasions. First, Hill confronted his team leader to ask

why he had not been selected for training opportunities. Hill

recalled that he stooped down and quietly spoke. During the

second encounter—which occurred after Hill had rotated into

a different section of GSA—Hill asked for a color copy of a

receipt and was refused. He believed that the woman handling

the copiers was trying to get him into trouble by reporting his

request for a color copy. The third incident involved a quarrel

over a file. Hill complained that a white female intern had

yelled at him and talked to him in a condescending manner,

whereas she characterized his behavior as “stomping around

and slamming doors.” The next day a supervisor told Hill that

No. 12-3447 3

slamming doors could be seen as threatening because he was

a “pretty big guy,” which Hill took as a coded racial reference.

At the end of his probationary period, Hill received a letter

signed by his boss, Timothy Gabrish, stating that he was being

fired based on those three incidents.

Hill sued GSA under Title VII of the Civil Rights Act of

1964, 42 U.S.C. §§ 2000e to 2000e-17, for race discrimination,

gender discrimination, and retaliation for filing an EEOC

complaint. The district court granted summary judgment to

GSA, concluding that Hill did not make out two prongs of the

prima facie case of discrimination. The court stated that Hill

was not meeting GSA’s legitimate expectations because he had

engaged in a pattern of behavior that led three different

coworkers to report him to their supervisors, and that the

white female intern was not a suitable comparator because

only one coworker had ever complained about her behavior.

Moreover, even if Hill had established a prima facie case of

discrimination, the court said, he had not introduced any

evidence suggesting that GSA’s stated reason for his discharge

was prextual.

On appeal, Hill first challenges the district court’s conclu-

sion that he was not meeting GSA’s expectations and asserts

that the court overlooked his exculpatory accounts of the

interactions as well as affidavits from other coworkers attesting

to his professionalism. He disagrees that his temper was the

reason for his discharge. He insists GSA’s racial and gender

animus motivated GSA’s decision as reflected by its minimal

investigation and the decision not to interview or warn him

before firing him.

4 No. 12-3447

We begin by noting that the district court discredited Hill’s

testimony about his interactions with coworkers because of its

“self-serving” nature. Hill v. Johnson, No. 11 C 2144, 2012 WL

4483442, at *2 n.6 (N.D. Ill. Sept. 27, 2012). This was error.

Deposition testimony, affidavits, responses to interrogatories,

and other written statements by their nature are self-serving.

Payne v. Pauley, 337 F.3d 767, 771 (7th Cir. 2003). As we have

repeatedly emphasized over the past decade, the term “self-

serving” must not be used to denigrate perfectly admissible

evidence through which a party tries to present its side of the

story at summary judgment.1 See Navejar v. Iyiola, No. 12–1182,

1

Our own use of the term has been imprecise, which has not been helpful.

But today we make clear that the following cases are overruled to the extent

that they suggest a plaintiff may not rely on “self-serving” evidence to

create a material factual dispute. See, e.g., Broaddus v. Shields, 665 F.3d 846,

856 (7th Cir. 2011); Keri v. Bd. of Trustees of Purdue Univ., 458 F.3d 620, 628

(7th Cir. 2006); Scaife v. Cook Cnty., 446 F.3d 735, 741 (7th Cir. 2006); Smith

v. Potter, 445 F.3d 1000, 1009 (7th Cir. 2006); Johnson v. Snyder, 444 F.3d 579,

584 (7th Cir. 2006); Witte v. Wis. Dep’t. of Corrections, 434 F.3d 1031, 1037 (7th

Cir. 2006); Evans v. City of Chicago, 434 F.3d 916, 933 (7th Cir. 2006); Rogers

v. City of Chicago, 320 F.3d 748, 751 (7th Cir. 2003); Hall v. Bodine Elec. Co.,

276 F.3d 345, 354 (7th Cir. 2002); Albiero v. City of Kankakee, 246 F.3d 927, 933

(7th Cir. 2001); United States v. Raymond, 228 F.3d 804, 814 (7th Cir. 2000);

McPhaul v. Bd. of Comm’rs of Madison Cnty., 226 F.3d 558, 564 (7th Cir. 2000);

Cable v. Ivy Tech State College, 200 F.3d 467, 478 (7th Cir. 1999); Shank v.

William R. Hague, Inc., 192 F.3d 675, 682 (7th Cir. 1999); Piscione v. Ernst &

Young, L.L.P., 171 F.3d 527, 532 (7th Cir. 1999); Taylor v. Monsanto Co., 150

F.3d 806, 809 (7th Cir. 1998); Patterson v. Chicago Ass’n for Retarded Citizens,

150 F.3d 719, 724 (7th Cir. 1998); U.S. for and on Behalf of Small Bus. Admin.

v. Torres, 142 F.3d 962, 968 (7th Cir. 1998); Haywood v. N. Am. Van Lines, Inc.,

121 F.3d 1066, 1071 (7th Cir. 1997); Darnell v. Target Stores, 16 F.3d 174, 177

(continued...)

No. 12-3447 5

2013 WL 2321349, at *4 (7th Cir. May 29, 2013); Berry v. Chicago

Transit Auth., 618 F.3d 688, 691 (7th Cir. 2010); Darchak v. City

of Chicago Bd. of Educ., 580 F.3d 622, 631 (7th Cir. 2009); Paz v.

Wauconda Healthcare & Rehabilitation Centre, LLC, 464 F.3d 659,

664–65 (7th Cir. 2006); Buie v. Quad/Graphics, Inc., 366 F.3d 496,

506 (7th Cir. 2004). Hill described the three encounters in his

deposition based on his personal knowledge and set forth

specific facts and the district court should have considered his

statements as evidence. See Fed. R. Civ. P. 56(c); Kellar v.

Summit Seating Inc., 664 F.3d 169, 175 (7th Cir. 2011); Whitlock

v. Brown, 596 F.3d 406, 411–12 (7th Cir. 2010).

But summary judgment in favor of GSA was still proper

because Hill cannot show pretext, which is relevant to the

prima facie case where, as here, an employer cites failure to

meet legitimate expectations as the reason for discharge. See

Everroad v. Scott Truck Sys., Inc., 604 F.3d 471, 477–78 (7th

Cir.2010); O’Leary v. Accretive Health, Inc., 657 F.3d 625, 635 (7th

Cir. 2011); Hague v. Thompson Distrib. Co., 436 F.3d 816, 823 (7th

Cir. 2006). An inquiry into pretext requires that we evaluate the

honesty of the employer’s explanation, rather than its validity

or reasonableness, see O’Leary, 657 F.3d at 636–37; Montgomery

v. Am. Airlines, Inc., 626 F.3d 382, 396–97 (7th Cir. 2010); Naik v.

Boehringer Ingelheim Pharm., Inc., 627 F.3d 596, 601 (7th Cir.

2010), and nothing in the record suggests that Hill’s boss used

1

(...continued)

(7th Cir. 1994); Unterreiner v. Volkswagen of Am., Inc., 8 F. 3d 1206, 1210 (7th

Cir. 1993); Slowiak v. Land O’Lakes, Inc., 987 F.2d 1293, 1295 (7th Cir. 1993);

McDonnell v. Cournia, 990 F.2d 963, 969 (7th Cir. 1993); Kornacki v. Norton

Performance Plastics, 956 F.2d 129, 132 (7th Cir. 1992).

6 No. 12-3447

the negative reports from three of Hill’s coworkers as a mask

to hide unlawful discrimination. Hill’s evidence shows only

that he disagreed with Gabrish’s assessment of his interactions

with coworkers, not that GSA lied about its reasons for firing

him. See Everroad, 604 F.3d at 478 & n.2; Ptasznik v. St. Joseph

Hospital, 464 F.3d 691, 696 (7th Cir. 2006); Green v. New Mexico,

420 F.3d 1189, 1193 (10th Cir. 2005).2

Concerning his retaliation claim, Hill argues that the district

court erred in rejecting what he considers as the suspicious

timing of his firing at the tail end of his probationary pe-

riod—eight months after his EEOC claim settled. But far from

being suspicious, GSA’s timing was reasonable. The point of a

probationary period is to give employees a trial run. Hill had

to provide evidence linking his discharge to his EEOC com-

plaint, see Antonetti v. Abbott Laboratories, 563 F.3d 587, 593 (7th

Cir. 2009); Burks v. Wis. Dep’t of Transp., 464 F.3d 744, 758–59

(7th Cir. 2006), and nothing in the record calls into question the

honesty of the conduct-related concerns that GSA gave when

firing him, see Brown v. Ill. Dep’t. of Natural Resources, 499 F.3d

675, 683–84 (7th Cir. 2007); Logan v. Kautex Textron North Am.,

259 F.3d 635, 640–41 (7th Cir. 2001).

AFFIRMED.

2

Hill’s prima facie case fails for another reason as well. The district court

properly concluded that the number of coworker complaints was sufficient

to distinguish the seriousness of Hill’s misconduct compared to the white

female intern and thus explain GSA’s harsher response to Hill. See Pantoja

v. Am. NTN Bearing Mfg. Corp., 495 F.3d 840, 847 (7th Cir. 2007); Burks v.

Wis. Dep’t of Transp., 464 F.3d 744, 751–52 (7th Cir. 2006); Wells v. SCI Mgmt.,

L.P., 469 F.3d 697, 701 (8th Cir. 2006).