# Supplemental Brief — Banks v. Finley-Seligman & Latz, Inc.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Supplemental Brief
- **Published:** January 1, 1986
- **Citation:** 479 U.S. 816

## Text

Su Court, US.
(i) | FTTED

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————,

28
No. 85-1854 JUN 1986
. SPANIOL, JR.
JOSEPH F. SPM
IN THE

Supreme Court of the United States
OCTOBER TERM, 1985

IRA BANKS,
Petitioner,

y;

FINLEY-SELIGMAN & LATZ, INC.,
Respondent

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

RESPONDENT’S APPENDIX

Thomas P. Krukowski
Barry L. Chaet*
Laurie A. Petersen
KRUKOWSKI, CHAET,
BECK & LOOMIS, S.C.
7111 West Edgerton Avenue
Milwaukee, Wisconsin 53220
(414) 423-1330

Counsel for Respondent

*Counsel of Record

i
TABLE OF CONTENTS
Page

DECISION ANT) ORDER OF DISTRICT COURT
DATED OCTOBER 13, 1983.......... Res. App. 1-4

JUDGMENT OF DISTRICT COURT DATED
OCTOBER 13, 1983 .......... wee ee ne Res. App. 5

ORDER OF SEVENTH CIRCUIT DATED OCTOBER
ee re re ee ee Resp. App. 6-9

JUDGMENT OF DISTRICT COURT DATED
Pi ee re Resp. App. 10

ORDER OF SEVENTH CIRCUIT DATED
SEPTEMBER 4, 1985............. Resp. App. 11-16

ORDER OF SEVENTH CIRCUIT DATED
SEPTEMBER 26, 1985............... Resp. App. 17

ee

Resp. App. 1

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

IRA BANKS, Plaintiff,
v.
FINLEY-SELIGMAN & LATZ, INC., Defendant

DECISION AND ORDER C.A. No. 80-C-1056

This is an action for job reinstatement and front and back
pay under 42 U.S.C. §§ 1981 and 2000e-5(f). Jurisdiction
is predicated on 28 U.S.C. § 1343 and 42 U.S.C. § 2000e-5(f)
(3). The plaintiff, formerly a jeweler in the defendant’s em-
ploy, alleges in his second amended complaint that the
defendant engaged in racially discriminatory employment
tactics directed against him. It appears from the pleadings
that the jurisdictional prerequisites to the claim under §
2000-5(f) (3) are satisfied. The defendant has moved for sum-
mary judgment. The motion is granted.

In March, 1972 the defendant hired plaintiff as an appren-
tice jeweler pursuant to Wisconsin’s Apprentice Jeweler Pro-
gram. Plaintiff was initially compensated in accordance with
the salary schedule in that program. In December, 1974,
plaintiff completed the program and became a fully quali-
fied jeweler. He remained in defendant’s employ and, like
the two other nonmanagement jewelers employed by defen-
dant, was paid on a “point system” —— a system awarding
a certain number of points to a particular repair task. This
method of compensation contrasts with the method by which
defendant’s watchmakers were compensated: the watch-
makers received a percentage of the consumer price of their
work. This difference in compensation formula generally

Resp. App. 2

resulted in lower pay for the jewelers, although defendant
affies that for a time, plaintiff actually earned more than
certain watchmakers. In any event, the discrepancy prompt-
ed plaintiff to file a charge of employment discrimination
with the Equal Employment Opportunity Commission
(“EEOC’’). While that charge was pending, plaintiff volun-
tarily terminated his employment with defendant. In Sep-
tember, 1980, the EEOC determined that there was no
reasonable cause to believe that plaintiff had been discrimi-
nated against, and mailed him his Right-to-Sue letter. This
suit was filed shortly thereafter.

The second amended complaint alleges racially dis-
criminatory employment tactics in violation of 42 U.S.C.
§§ 1981 and 2000e-2a. Although this latest complaint does
not set forth the specific acts forming the basis of the al-
leged statutory violations, prior and subsequent pleadings
filed by this pro se plaintiff indicate that the unequal com-
pensation of jewelers and watchmakers is the subject of this
action. Therefore, I treat the second count of the second
amended complaint as arising under 42 U.S.C. § 2000e-2(a)
(1), which, prohibits employment discrimination in respect
to compensation.

In order to establish a prima facie case under § 1981, plain-
tiff must establish that he is a member of a racial minority
and that he was unable to engage in or enjoy one of the
statutorily enumerated activities or benefits due to the al-
leged discriminatory action. Additionally, he must show that
the defendant’s discrimination was intentional. General
Building Contractors v. Pennsylvania, 50 U.S.L.W. 4975
(U.S. June 29, 1982). The elements of a prima facie case of
racial discrimination with respect to wages are not clearly
established, although a variant of the familiar four-part test
of McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 803
(1973), would be appropriate. Compare, Meyer v. Missouri
State Highway Comm’n, 567 F.2d 804 (8th Cir. 1977), cert.
denied, 435 U.S. 1013 (1978) (discrimination in promotion
and relocation). Upon a prima facie showing, the burden
shifts to the employer to articulate a legitimate rationale

Resp. App. 3

for the challenged action.

Similarly, in a disparate treatment case under Title VII,
the plaintiff must establish that defendant acted with dis-
criminatory animus. This can be inferred from a prima facie
showing under McDonnell-Douglas. Again, when plaintiff
establishes a prima facie case, the burden shifts to defen-
dant to articulate a legitimate rationale for the challenged
action. Texas Department of Community Affairs v. Burdine,
450 U.S. 248 (1981).

In this case, the defendant has covsie its burden of es-
tablishing that its decision not to compensate plaintiff in
the same manner as watchmakers was supported by a valid
business purpose. The defendant has submitted affidavits
tending to show that the positions of watchmaker and jewel-
er involve distinct skills and responsibilities. Moreover, as
defendant has contended, the prices of jewelry materials
fluctuate while the prices of watch components remain rela-
tively constant, and the cost of jewelry can sometimes rise
as high as ninety-nine percent of the consumer price. Thus,
it would be unfeasible to compensate jewelers on the same
basis as watchmakers.

Plaintiff does not challenge these assertions, but argues
simply that watches, like all the items sold and serviced
by the defendant, are jewels and therefore there is no legiti-
mate basis for the watchmaker/jeweler categorization. The
argument is too formalistic to be maintained, particularly
in the face of defendant’s business justification. Moreover,
plaintiff's suggestion that the distinction in compensation
rests not upon job responsibilities but upon race is square-
ly rebutted by defendant’s showing that it employed two
caucasians during plaintiff's term of employ, both of whom
were compensated on the jeweler’s scale.

The Court has reviewed the remaining allegations in the
sundry pleadings and documents and finds them to be either
unmeritorious or irrelevant. Because defendant has ade-
quately carried its burden of proof, I conclude that it is en-
titled to judgment as a matter of law. See Kephart v. Institute
of Gas Technology, 630 F.2d 1217, 1219-20 (7th Cir. 1980).

Resp. App. 4

THEREFORE, IT IS ORDERED that defendant’s motion
for summary judgment is granted.
Dated at Milwaukee, Wisconsin, this 13th day of Oct.,
1983.
BY THE COURT:

John W. Reynolds
Chief U.S. District Judge

U.S. District Court East Dist. Wisc.
FILED
OCT 18, 1983
SOFRON B. NEDILSKY
CLERK

Resp. App. 5

JUDGMENT ON DECISION BY THE COURT
UNITED STATES DISTRICT COURT
FOR THE
EASTERN DISTRICT OF WISCONSIN

IRA BANKS,
v.
FINLEY-SELIGMAN & LATZ, INC.

CIVIL ACTION FILE No. 80-C-1056

This action came on for (hearing) before the Court, Honora-
ble JOHN W. REYNOLDS, United States District Judge,
presiding, and the issues having been duly (heard) and a
decision having been duly rendered, granting defendant’s
motion for summary judgment. It is Ordered and Adjudged
that this action is hereby dismissed.

Dated at Milwaukee, Wisconsin, this 13th day of October,
1983.

U.S. District Court East Dist. Wisc.
FILED
OCT 13, 1983
SOFRON B. NEDILSKY
CLERK

Resp. App. 6

UNITED STATES DISTRICT COURT OF APPEALS
For the Seventh Circuit
Chicago, Illinois 60604
(SUBMITTED) September 20, 1984
October 29, 1984

Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. JOHN L. COFFEY, Circuit Judge
Hon. JOEL M. FLAUM, Circuit Judge

UNPUBLISHED ORDER NOT
TO BE CITED PER
CIRCUIT RULE 35

IRA BANKS, Plaintiff-Appellant,
v.

FINLEY-SELIGMAN & LATZ, INC., Defendant-Appellee

Appeal from the United States District Court for the Eastern
District of Wisconsin.
No. 80-C-1056
John W. Reynolds, Judge

* After preliminary examination of the briefs, the court
notified the parties that it had tentatively concluded that
oral argument would not be helpful to the court in this case.
The notice provided that any party might file a “Statement
as to Need of Oral Argument.” See Rule 34(a), Fed. R. App.
P.; Circuit Rule 14(f). The plaintiff has filed such a state-
ment and requested oral argument. Upon consideration of
that statement, the briefs, and the record, the request for
oral argument is denied and the appeal is submitted on the
briefs and record.

Resp. App. 7

ORDER

After receiving two “right-to-sue”’ letters from the Equal
Employment Opportunity Commission (E.E.O.C.) based on
two separate charges, the pro se plaintiff, fra Banks, brought
suit against his former employer, Finley-Seligman & Latz,
in the Eastern District of Wisconsin. The plaintiff's first
“right-to-sue”’ letter, and his initial claim in the district
court, were based on his charge that the defendant’s pay
system caused him to be paid less than certain white em-
ployees. The district court granted summary judgment on
that claim, and we affirm. The plaintiff's second letter and
his second claim in the district court concern his allegation
that he was discharged in retaliation for protected Title VII
activity. See 42 U.S.C. § 2000e-3. After reviewing the papers
and affidavits filed, the district judge granted summary
judgment for the defendant on the retaliation claim. We
reverse and remand for further proceedings that portion of
the case in which there are disputed issues of material fact.

The defendant is engaged in the business of repairing
jewelry, watches, and similar items. The plaintiff, after com-
pleting an apprenticeship with the defendant in December
1974, continued to work for the defendant in the Gimbels
Milwaukee, Wisconsin store as a fully qualified jeweler, un-
til March 28, 1980. The plaintiff, a black, alleges that he
was discriminated against on the basis of race because, as
a jeweler, he was compensated for repair jobs at a piece-work
rate (i.e. a rate based on the number of pieces completed)
that was lower than the piece-work rate applied to repair
jobs completed by watchmakers, who were all of the white
race. Watchmakers were paid a percentage of the retail cost
of the watch repair. In contrast, the method of compensa-
tion to jewelers was not based on the customer’s cost of the
repair, but on a point system that varied with the difficulty
of the repair job.

With respect to the plaintiff's claim of racial discrimina-
tion in compensation, which formed the basis of his first
right-to-sue letter, the district court ruled that the defen-

Resp. App. 8

dant had established a business justification for its prac-
tice. The plaintiff disputes the court’s conclusion. However,
we need not reach this issue because the plaintiff has not
made out a prima facie case of discrimination. Certainly,
Title VII does protect against employment practices that
are ‘fair in form but discriminatory in operation.” See Con-
necticut v. Teal, 102 S. Ct. 2525, 2531 (1982). However, to
attack facially neutral employment standards, such as the
two methods of compensation at issue in this case, the plain-
tiff must establish that they have a disparate impact on
minority group members. See Carpenter v. Board of Regents
of the University of Wisconsin, 728 F.2d 911, 914 (7th Cir.
1984). The plaintiff has failed to do this. It is uncontrovert-
ed that part of the time that the plaintiff was employed by
defendant, two whites were also employed as jewelers and
were paid according to the same point system as the plain-
tiff. Title VII is silent about the method that employers
select to figure wages, so long as the method does not have
an adverse impact on minorities. Similarly the plaintiffs
claim, under 42 U.S.C. Sections 1981 and 2000e-2, that the
defendant’s use of different methods to calculate the wages
of watchmakers and jewelers constituted intentional race
discrimination, must also fail. While the plaintiff has shown
that watchmakers and jewelers had different pay scales he
has not given any indication that he was treated different-
ly as a jeweler because he is black. See Ekanem v. Health
and Hospital Corp. 724 F.2d 563, 569 (7th Cir. 1983). White
jewelers were paid according to the same point system as
the plaintiff, and the district court properly entered sum-
mary judgment on the plaintiff's claim of discrimination in
compensation.

As noted above, the district court also granted summary
judgment on the plaintiff's allegation, which is the subject
of his second right-to-sue letter, that he was terminated from
his employment because he filed the above charge with the
E.E.0.C. Filing a claim of employment discrimination is pro-
tected activity under Title VII, 42 U.S.C. § 20000e-3, regard-
less of whether the complaining party prevails in the

Resp. App. 9

underlying charge of discrimination. See Berg v. LaCrosse
Cooler Co., 612 F.2d 1041, 1043 (7th Cir. 1980). The defen-
dant entered affidavits stating that the plaintiff was not
discharged but had voluntarily resigned. The defendant also
submitted affidavits that the plaintiff was insubordinate in
refusing to do a “special repair job” on a bracelet, and ar-
gued that this insubordination would have provided a legiti-
mate nondiscriminatory reason to fire the plaintiff in any
event. These affidavits, standing alone, might have been
sufficient to support a grant of summary judgment for the
defendant. In this case, however, the plaintiff (acting pro
se) did not merely rest on the allegations in his complaint,
See Patterson v. General Motors, 631 F.2d 476, 482 (7th Cir.
1980), but offered his own counter-affidavits in which he
denied he had voluntarily resigned, and asserted that, at
a meeting with officials of his former employer, his super-
visor had threatened to quit unless the plaintiff was dis-
charged. Further, the plaintiff averred that he, in fact, did
repair the bracelet in question, contrary to the defendant’s
claims of insubordination. The plaintiff's affidavits raise dis-
puted issues of fact that are material to the disposition of
his retaliation claim. In light of this factual dispute the
defendant’s filings are inadequate to demonstrate that it
is entitled to judgment as a matter of law. See Big O Tire
Dealers Inc. v. Big O Warehouse, Nos. 83-2863 & 83-2902,
slip op. at 9-10 (7th Cir. Aug. 17, 1984). Consequently, we
remand the case for further proceedings consistent with this
opinion.

The decision of the district court is AFFIRMED IN PART,
REVERSED AND REMANDED IN PART.

Resp. App. 10

JUDGMENT IN A CIVIL CASE
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

IRA BANKS,
v.
FINLEY-SELIGMAN & LATZ, INC.

Docket No. 80-C-1056
Judge John W. Reynolds

Decision by Court. This action came to trial or hearing
before the Court with the judge (magistrate) named above
presiding. The issues have been tried or heard and a deci-
sion has been rendered. IT IS ORDERED AND ADJUDGED
that this action is hereby dismissed.

U.S. District Court East. Dist. Wisc.
FILED
JAN 10, 1985
SOFRON B. NEDILSKY
CLERK

Resp. App. 11

UNITED STATES DISTRICT COURT OF APPEALS
For the Seventh Circuit
Chicago, Illinois 60604
(SUBMITTED) August 22, 1985*
September 4, 1985
Unpublished order not be cited per circuit rule 35

Before
Hon. WALTER J. CUMMINGS, Chief Judge
Hon. HARLINGTON WOOD, JR., Circuit Judge
Hon. JESSE E. ESCHBACH, Circuit Judge

IRA BANKS, Plaintiff-Appellant,
v.
FINLEY-SELIGMAN & LATZ, INC., Defendant-Appellee.
No. 85-1188

Appeal from the United States District Court for the Eastern
District of Wisconsin.

No. 80 C 1056
John W. Reynolds, Judge

* After preliminary examination of the briefs, the court
notified the parties that it had tentatively concluded that
oral argument would not be helpful to the court in this case.
The notice provided that any party might file a “Statement
as to Need of Oral Argument.” See Rule 34(a), Fed. R. App.
P.; Circuit Rule 14(). No such statement having been filed,
the appeal has been submitted on the briefs and record.

Resp. App. 12
ORDER

Plaintiff-appellant Ira Banks appeals the district court ord-
er of January 10, 1985 dismissing his employment discrimi-
nation action against defendant-appellee, Finley-Seligman
& Latz, Inc. We affirm for the reasons explained below.

I.

Banks, a black jeweler, filed two employment discrimi-
nation claims with the Equal Employment Opportunity
Commission against the defendant, his employer. The first
claim alleged that the defendant’s pay system was dis-
criminatory because it caused him to be paid less than cer-
tain white employees. The second claim alleged that Banks
was discharged by the defendant in retaliation for protect-
ed Title VII activity. See 42 U.S.C. § 2000e-3; Klein v.
Trustees of Indiana University, No. 84-2124, slip op. (June
20, 1985); Mozee v. Jeffboat, Inc., 746 F.2d 365 (7th Cir.
1984); McCluney v. Jos. Schlitz Brewing Co., 728 F.2d 924
(7th Cir. 1984). After receiving right to sue letters on both
claims, Banks filed suit in federal district court raising both
claims. The district court granted summary judgment for
the defendant on both claims. On appeal, we affirmed by
unpublished order the grant of summary judgment on the
claim that the defendant’s pay structure was discriminato-
ry, Banks v. Finley-Seligman & Latz, Inc., No. 83-2981, un-
published order (7th Cir. Oct. 29, 1984). We reversed and
remanded for further proceedings, however, with respect to
the claim that Banks was terminated in retaliation for fil-
ing a claim against the defendant. On remand, the district
court held a lengthy evidentiary hearing at the conclusion
of which it dismissed Bank’s claim, finding that Banks had
failed to establish that he was terminated in retaliation for
filing a discrimination claim against the defendant. It is
from this decision that Banks appeals.

Resp. App. 13
Il.

Construing Banks’ pro se briefs liberally, Haines v. Kerner,
404 U.S. 519, 520-21 (1972); Bates v. Jean, 745 F.2d 1146,
1150 (7th Cir. 1984), Banks contends the district court erred
in concluding that he was not discharged in retaliation for
filing a discrimination claim. ““To establish a prima facie
case of retaliatory discharge under 42 U.S.C. § 2000e.3, the
plaintiff must show: (1) he opposed an employment practice
that was unlawful within the meaning of Title VII; (2) he
suffered an adverse action by his employer; (3) because of
his opposition or participation.” (footnote omitted). Klein,
slip op. at 7; Rucker v. Higher Educational Aids Bd., 669
F.2d 1179, 1182. The plaintiff must additionally establish
that the employer “would not have taken the adverse ac-
tion ‘but for’ his opposition or participation.” Klein, slip op.
at 8 citing McCluney v. Jos. Schlitz Brewing Co., 728 F.2d
924, 928 (7th Cir. 1984).

The prima facie proof analysis set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973) is applicable
to retaliatory discharge claims. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 235 n. 5 (1981)
(The McDonnell analysis is flexible and adaptable to differ-
ent fact situations); Klein, slip op. at 7, n. 3. Once the plain-
tiff establishes a prima facie case of employment
discrimination, a rebuttable presumption of discrimination
arises and the burden then shifts to the defendant to rebut
the discrimination by articulating a legitimate, non-
discriminatory reason for its action. McDonnell Douglas, 411
U.S. at 802. If the defendant successfully rebuts the
presumption of discrimination, the plaintiff must have the
opportunity to demonstrate that the alleged reason for the
employment action was merely pretextual. Id.

Ill.

In the present case, we vacated the award of summary
judgment on the retaliation claim and remanded this case

Resp. App. 14

to the district court for further proceedings. On remand,
Banks tried his retaliation claim before the district court
and, at the conclusion of the trial, the district court entered
judgment for the defendant, finding that Banks had failed
to demonstrate that he was discharged in retaliation for fil-
ing a complaint against the defendant. “In this Title VII
case, our ultimate task is ‘to determine whether the [plain-
tiffs have] proven that the defendants have discriminated
against [them].” Mozee, 746 F.2d at 369, citing Epstein v.
Secretary, 739 F.2d 274, 278 (7th Cir. 1984). Our review of
the district court’s fact-findings is governed by the clearly
erroneous test, Fed. R. Civ. P. 52(a), Suson v. Zenith Radio
Corp., 763 F.2d 304, 307 (7th Cir. 1985), while our review
of the district court’s ultimate conclusion of discrimination
vel non is not so constrained. Mozee, 746 F.2d at 369; Ep-
stein, 739 F.2d 274, 278-79 (7th Cir. 1984). After a careful
review of the record, we concur with the district court’s find-
ing that Banks failed to establish that he was discharged
in retaliation for filing a discrimination claim against the
defendant.

The record reflects that Banks was hired by the defendant
as a jeweler in 1972, that Banks filed a discrimination claim
against the defendant relating to methods of payment on
November 28, 1978, and that Banks left employment with
the defendant on March 28, 1980, 16 months later. Banks
then filed his second discrimination claim, alleging that he
had been discharged in retaliation for filing his discrimi-
nation claim 16 months earlier. During this sixteen month
period, Banks’ work assignments and hours remained the
same. On March 28, 1980, a dispute arose over repairs com-
pleted by Banks on a bracelet. Freinik, Banks’ supervisor,
requested Banks to redo repairs to the bracelet because they
had not been completed correctly the first time. The defen-
dant’s policy in effect at the time required all employees
to redo work again for various reasons, regardless of whose
fault it was. Banks declined to redo the work. Freinik noti-
fied Sadow, the vice-president of the company, who called
Banks into his office and an argument ensued. Banks con-

Resp. App. 15

tended that Sadow brought up the discrimination charge
at the meeting (although he could not remember what was
said about it) and that Freinik stated to Sadow that if Banks
was not fired, Freinik would quit. Banks also contended that
he had discussed the discrimination charges with Freinik
prior to the meeting: Banks testified that he was terminat-
ed at the meeting, allegedly in retaliation for filing the dis-
crimination claim sixteen months earlier against the
defendant. :

Freinik testified that Banks was not terminated at the
meeting but simply told that he had the option of perform-
ing the requested work or quitting and that Banks then
stormed out of the meeting, picked up his tools and left. Frei-
nik testified that the discrimination charge was never men-
tioned at the meeting with Sadow. Sadow testified that
Freinik came into his office, complaining that Banks had
refused to perform repairs upon a bracelet. Sadow called
Banks into his office and Banks once again reiterated that
he would not perform the jewelry repairs. At that point,
Sadow told Banks that “it’s a free country, you can work
anyplace you want... if you want to quit, you can quit,”
(R. at 104). Banks then left the office, picked up his tools
and left. Finally, Costigan, an employee of the defendant,
testified that he was present in the shop at the time of the
argument. Costigan saw Banks storm out of Sadow’s office,
throw his tools in a bag and leave. He stated that although
he was aware that Banks had filed a discrimination charge
against the defendant, he does not recall Banks being treat-
ed any differently than the other employees.

Basically, this case hinges on a question of credibility
which we are hesitant to second-guess on appeal absent clear
error. Andersen v. City of Bessemer City, US. :
105 S. Ct. 1504, 1512-13 (1985); In re Lemmon & Co., Inc.,
742 F.2d 1064, 1070 (7th Cir. 1984); Luedtke Eng. Co. v. Ind.
Limestone Co., 740 F.2d 598, 601 (7th Cir. 1984); Walsh v.
Brewer, 733 F.2d 473, 477 (7th Cir. 1984). Ample evidence
supported the district court’s determination that Banks was
not discharged in retaliation for filing a discrimination

Resp. App. 16

claim. Sixteen months passed between the time that Banks
filed his discrimination claim and his subsequent termina-
tion of employment with the defendant. Banks himself was
unable to point to overt instances of harassment or discrimi-
nation arising from the discrimination charge which he
filed. Although Banks testified that Sadow fired him in
retaliation for filing the claim, both Sadow and Freinik tes-
tified otherwise. As such, we agree with the district court
that Banks failed to establish that he was terminated in
retaliation for filing a discrimination claim against the
defendant.

AFFIRMED

? THE COURT: Now why do you think one year and four months later, when
you were discharged, that you were discharged for filing that complaint on Novem-
ber 28, 1978? Why do you think that?

A. Why do I think it? Simply because at the time from November of ’78 until
I was terminated, the type of work they needed done, I was the only one who was
doing it. And this was in regards to their sales. As the year progressed, Mr. Frei-
nik, who had gotten a friend of his and a couple outside stores to do some of the
repairs, Mr. Freinik had become a little more hostile toward me in that category.
Simply because I am assuming he did not feel I was no longer needed. That fol-
lowed up with his threats as far as my being terminated.

Resp. App. 17

UNITED STATES COURT OF APPEALS
For the Seventh Circuit
Chicago, Illinois 60604
September 26, 1985

Before
Hon. WALTER J. CUMMINGS, Chief Judge
Hon. HARLINGTON WOOD, JR., Circuit Judge
Hon. JESSE E. ESCHBACH, Circuit Judge

IRA BANKS, Plaintiff-Appellant,
v.
FINLEY-SELIGMAN & LATZ, INC., Defendant-Appellee.
No. 85-1188

Appeal from the United States District Court for the Eastern
District of Wisconsin.

No. 80 C 1056
John W. Reynolds, Judge

ORDER

On consideration of the petition for rehearing filed in the
above-entitled cause by plaintiff-appellant, all of the judges
on the panel have voted to deny a rehearing. Accordingly,

IT IS ORDERED that the aforesaid petition for rehear-
ing be, and the same is hereby, DENIED.

---

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