Aviles v. Cornell Forge Co., 98-1563

Decision Date27 July 1999
Docket NumberNo. 98-1563,98-1563
Citation183 F.3d 598
Parties(7th Cir. 1999) ALFREDO AVILES, Plaintiff-Appellant, v. CORNELL FORGE COMPANY, Defendant-Appellee
CourtU.S. Court of Appeals — Seventh Circuit

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 96 C 5989--Harry D. Leinenweber, Judge. [Copyrighted Material Omitted] Before HARLINGTON WOOD, JR., RIPPLE and ROVNER, Circuit Judges.


Alfredo Aviles filed suit against his employer, Cornell Forge Company, claiming hostile work environment based on national origin, and retaliation. The district court granted summary judgment in favor of Cornell Forge. We affirm in part, reverse in part, and remand.


Alfredo Aviles, who is of Mexican descent, held a variety of positions at Cornell Forge between 1987 and 1994. Before March of 1994, he worked primarily in the shipping and receiving departments, and during that time he was promoted and received good performance ratings. In late March, 1994, he was promoted to the position of shipping clerk in the shipping department. In that job, he alleged his supervisors subjected him to discrimination and harassment based on his national origin in the form of insults, slurs, deprivation of duties and demotion.

On May 16, 1994, Aviles filed his first charge with the EEOC, and he claims that his supervisors' harassment escalated after that point, leading him to file an amended charge on May 27, 1994. He filed a third charge on December 8, 1994. In his May 16 charge, Aviles alleged that Cornell Forge discriminated against him on the basis of national origin when it demoted him from shipping clerk to blaster and filled his shipping clerk position with two less senior, less experienced non-Hispanic employees. On May 27, 1994, Aviles filed another charge in which he alleged that Cornell Forge suspended him after filing the May 16, 1994 charge, and that he believed this suspension was in retaliation for filing the first charge. He alleged that his employer told him he was being suspended for failure to perform job duties and for leaving the building without permission, neither of which was true. On December 8, 1994, Aviles filed his third and final charge, alleging that when he returned from his suspension, Cornell Forge refused, without explanation, to assign him overtime. Aviles attributed this action to retaliation for filing his original charge, and contended that all other employees had been assigned overtime.

Aviles' complaint contains additional, more detailed allegations, and the differences between the charges and the complaint will become significant in our analysis, so we will review the complaint here. In the preface of his complaint, Aviles alleged that two supervisors in the shipping department subjected him to harassment based on national origin, including national origin-based slurs, jokes, offensive comments and insults. He also alleged that he was treated differently and deprived of his responsibilities because of his national origin. In particular, he claimed one of the supervisors demoted him from shipping clerk to blaster, a less desirable position. He asserted that his employer did nothing to alleviate the situation when he complained. In Count I, Aviles asserted that the conduct described above violated Title VII of the Civil Rights Act of 1964, because it was harassment based on national origin. In Count II, Aviles alleged retaliation, maintaining that shortly after he filed his first EEOC charge, his employer suspended him for five days, and then falsely told local police that Aviles had threatened his supervisor with a gun. The police, believing this false charge, physically and emotionally harmed Aviles, according to the complaint. His employer engaged in further retaliation, Aviles alleged, when he returned to work after the suspension and was denied overtime when all other employees on his shift were allowed to take it.

In an oral ruling, the district court granted summary judgment in favor of Cornell Forge. The district court characterized the complaint as containing five distinct claims: (1) national origin discrimination, as evidenced by the demotion; (2) national origin harassment, in that Cornell Forge subjected Aviles to slurs, jokes, offensive comments, insults and disparate treatment; (3) retaliation, as evidenced by Aviles' suspension; (4) retaliation by denial of overtime; and (5) retaliation by misleading the police, and causing them to injure Aviles. The court noted that Aviles voluntarily withdrew his claim of national origin discrimination based on his demotion, and thus granted summary judgment in favor of Cornell Forge on that claim.

The court granted judgment against Aviles on the second claim, national origin harassment, because Aviles had made no such claim in his EEOC charges, as required by law. On the retaliation- by-suspension claim, the court granted judgment for Cornell Forge because the company suspended Aviles before it knew he had filed the initial EEOC charge, and thus the action could not have been retaliatory. The court engaged in a burden shifting analysis of Aviles' claim of retaliation-by-demotion, and found that, although he made out a prima facie case, Cornell Forge responded with a legitimate, non-discriminatory reason for its actions, shifting the burden back to Aviles. Because Aviles produced insufficient evidence that Cornell Forge's reason was pretextual, the court granted judgment on that claim as well. Finally, the court entered judgment on the claim that Cornell Forge retaliated by prompting the police to injure Aviles because the employer's action was not related to Aviles' employment. Aviles timely appealed.


Aviles first posits that the court misread his deposition testimony when it found that Cornell Forge was not aware of the EEOC charge until after the suspension, and thus summary judgment was inappropriate on that claim. Second, Aviles claims that Cornell Forge's excuse for denying him overtime was pretextual, precluding summary judgment on that claim as well. Finally, he argues that the court inappropriately entered judgment sua sponte on the retaliation claim relating to the alleged police action when it found that Cornell Forge's action was not work- related.


In a confusing exchange during his deposition, Aviles testified about telling Cornell Forge personnel about the filing of an EEOC charge:

Q: Did you tell anybody that you were going to be filing a charge of discrimination?

A: Yes, I did.

Q: Who did you tell?

A: Not on May 16, but I did mention to Tom LeFaive that I threw a charge with the EEOC.

Q: When did you tell Tom LeFaive that?

A: That was May 26, 1994. And Mike Chlopek was there, too.

Q: Is that the first time you told anybody at Cornell Forge that you filed a charge of discrimination?

A: Not really, because my co-workers there, they knew it too.

Q: Okay. Well, I'm not talking about your co- workers right now, but any other management person?

A: Yes, management. Andy knew about it. Andy, Tom LeFaive, Mike Chlopek and Pat Kennelly knew that I had thrown a charge with the EEOC.

Q: How did they know?

A: I told them myself.

Q: So you told then all, though, on May 26th?

A: On May 26th when I got suspended.

Q: So you told them after you were already suspended?

A: Yes, after.

. . . . .

Q: That's the first time you ever told any member of management or any supervisor that you had filed a charge of discrimination against Cornell Forge Company?

A: Yes.

Deposition of Alfredo Aviles, May 13, 1997, Record at 28, pp. 152-53. The defendant took this exchange to mean that Aviles told no one about his EEOC charge until after they suspended him, and therefore the suspension could not have been in retaliation for filing the charge. Aviles filed an affidavit in response to this argument in which he explained that he threatened to file a charge before May 16, 1994. Specifically, he averred that he told his supervisor Pat Kennelly before May 16 that he had talked to a lawyer and was going to file a charge of discrimination. The district court found that this affidavit contradicted the earlier deposition testimony, and held that a self-serving affidavit that contradicted earlier deposition testimony could not be used to create an issue of fact. Aviles argues on appeal that the affidavit does not contradict his earlier testimony because at the deposition, he was answering questions about when he told Cornell Forge that he had already filed a charge; his claim for retaliation was based on the suspension that occurred after he threatened to file a charge, not after he actually filed it.

Cornell Forge answers that Aviles never claimed in any EEOC charge or in his complaint that the protected activity was a threat to file a charge, rather than the filing of the charge. In his EEOC charge, Aviles asserted that he was suspended after filing his May 16, 1994 charge of discrimination. In his complaint, Aviles alleged that he was suspended shortly after filing the May 16, 1994 charge. He never claimed that the suspension was in retaliation for threatening to file a charge. Our review of the record shows that Cornell Forge is factually correct. Aviles did not claim that the suspension was in retaliation for threatening to file a charge until he was responding to Cornell Forge's motion for summary judgment. But both sides, it seems to us, are missing the point.

First, the district court was incorrect that Aviles' affidavit contradicted his earlier testimony. In answer to the first deposition question, Aviles indicated that he told someone at Cornell Forge that he was going to be filing a charge of discrimination, indicating that he told Cornell Forge before he actually filed a charge. But in response to the second question, Aviles and the questioner arguably switched gears and...

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