715 F.3d 195 (7th Cir. 2013), 12-1855, Martino v. Western & Southern Financial Group

Docket Nº:12-1855.
Citation:715 F.3d 195
Opinion Judge:WILLIAMS, Circuit Judge.
Party Name:Emilio MARTINO, Plaintiff-Appellant, v. WESTERN & SOUTHERN FINANCIAL GROUP, Defendant-Appellee.
Attorney:Peter J. Agostino (argued), Attorney, Anderson, Agostino & Keller, South Bend, IN, for Plaintiff-Appellant. Michael Paul Palmer (argued), Attorney, Barnes & Thornburg, LLP, South Bend, IN, for Defendant-Appellee.
Judge Panel:Before POSNER, WILLIAMS, and SYKES, Circuit Judges.
Case Date:April 25, 2013
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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715 F.3d 195 (7th Cir. 2013)

Emilio MARTINO, Plaintiff-Appellant,



No. 12-1855.

United States Court of Appeals, Seventh Circuit.

April 25, 2013

         Argued Oct. 1, 2012.

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         Peter J. Agostino (argued), Attorney, Anderson, Agostino & Keller, South Bend, IN, for Plaintiff-Appellant.

          Michael Paul Palmer (argued), Attorney, Barnes & Thornburg, LLP, South Bend, IN, for Defendant-Appellee.

          Before POSNER, WILLIAMS, and SYKES, Circuit Judges.

          WILLIAMS, Circuit Judge.

         Emilio Martino, a naturalized United States citizen born in Italy, worked briefly as a sales representative for Western & Southern Financial Group (" W & S" ). Less than two months after W & S hired Martino, the company terminated his employment. Martino sued W & S for religious discrimination under Title VII and for defamation. Martino alleged, among other claims, that W & S discharged him based on his religious beliefs. W & S countered that Martino's termination was due to his failure to provide documents verifying his eligibility for employment in the United States. The district court granted summary judgment to W & S, and we affirm. Martino's evidence neither calls into doubt W & S's explanation for his discharge nor establishes a prima facie case of defamation.

         I. BACKGROUND

         On September 4, 2006, W & S, a financial services company headquartered in Cincinnati, hired Martino to work as a sales representative in its Mishawaka, Indiana office (the " Michiana office" ). Shortly after Martino began working for W & S, he signed a sales representative agreement that prohibited him from " engag[ing] in any other business, profession or work for remuneration or profit without Western-Southern's prior written consent." At the time of Martino's employment, W & S only approved outside positions requiring five or fewer hours a week on average, not including Sundays, and an average weekly pay of one hundred dollars or less. To maintain their employment with W & S, associates who were not in compliance with the company's policy either resigned their unapproved outside positions or reduced the hours and pay of their outside work.

          At the time he began working for W & S, Martino also served as a pastor of a small church in Union, Michigan. The same month his employment with W & S began, Martino submitted an outside position form for his pastoral job to the field human resource department, which decided whether to approve outside positions at a weekly meeting. Erin Miller, a human resources generalist, conducted the initial reviews of outside position forms and presented the position to the rest of the department without identifying the employee requesting permission to hold the outside position. Because Martino did not specify his hours or pay on his form, Miller sent him an email requesting that information on September 18. She followed up with

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another email request on September 26 and that day, Martino informed Miller that his pastoral position involved eight to ten hours per week, not including Sundays, his average weekly pay was about three hundred dollars, and his pay might decrease in the future. The following day, Miller notified Martino that his pastoral position did not comply with the company's policy and that he would need to immediately terminate that position.

         An email exchange between Andrew Sobol, who was the Michiana office's district sales manager and Martino's supervisor, and Miller ensued. Sobol told Miller that the outside position was the type of community service to which he encouraged sales representatives to dedicate three to five hours per week. Sobol asked Miller to clarify whether W & S forbade community service. Miller responded that Martino's position was different from approved community service activities because of the hours and pay. Sobol then told Miller that he believed Martino would do the pastoral work for free to keep the sales representative job. Sobol also suggested that Martino had inflated his estimate of the number of hours required for the outside position. On September 29, Miller informed Sobol that Martino's request to hold the outside position was " denied due to consistent past practices regarding outside positions." After further questioning from Sobol about whether W & S employees could hold public service positions, Miller wrote that " [p]aid public service positions are subject to approval by [the human resource department] as stated in the policy."

         On October 4, Martino emailed Miller the following:

It has become evident from your decision via e-mail on Sept. 27 telling me to terminate this " outside business venture" immediately that I need to address this situation. It has also become very evident from your e-mail conversations with my District Manager Mr. Sobol, that you have no intention of approving my public service position, which with God's blessings I will continue to serve in, as pastor of a small community church. Is the company denying my public service position and terminating my agent appointment with Western Southern? Please be specific so I will know what my position is with the company. Thank you.

         Miller responded that W & S was not discharging Martino but asking that he resign his pastoral position because it did not comply with the company's policy.

         At the same time Martino, Sobol, and Miller were discussing his outside position, Sobol and other W & S employees were attempting to verify Martino's eligibility to work in the United States. The Immigration Reform and Control Act of 1986 (" IRCA" ) requires employers to complete documents verifying each employee's identity and eligibility to work in the United States within three business days of hiring using Form I-9, Employment Eligibility Verification (" I-9 form" ). 8 U.S.C. § 1324a(a)(1)(B); 8 C.F.R. § 274a.2(a)(2), (b)(1)(ii). If an employee does not have the appropriate employment eligibility verification document, the employer must accept a receipt showing that the employee has applied for a replacement document. 8 C.F.R. § 274a.2(b)(1)(vi). The employee then has 90 days to produce the replacement document. Id. § 274a.2(b)(1)(vi)(3).

          On September 5, the day after he was hired, Martino submitted an I-9 form. He provided his name, address, date of birth, and social security number, but did not show W & S documents verifying his eligibility. Martino told J. Maxine Edwards, the Michiana office's district administrator, that he could not find his social security card but would apply for a duplicate one

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and would also search his mother's house for the original. Edwards attached a note to Martino's I-9 form indicating that he was applying for a replacement social security card. She then sent the form to the field human resource department. Tarah Corlett, the division's human resource manager, became aware of Martino's incomplete I-9 form shortly after he submitted it. Edwards and Sobol spoke with Martino multiple times between September 5 and October 16 about the importance of completing the I-9 process.

         On September 19, the Elkhart, Indiana office of the Social Security Administration (" SSA" ) verified Martino's social security number, but it did not allow him to apply for a replacement social security card because he did not have evidence of his naturalization. Instead, Martino received a document from the office verifying his social security number but also stating that the document " [did] not verify his right to work in the United States." The South Bend, Indiana office of the SSA also refused to allow Martino to apply for a duplicate social security card because he did not have documents establishing citizenship or lawful alien status. On October...

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