Seshadri v. Kasraian

• Citation: 130 F.3d 798
• Decision Date: 03 December 1997
• Docket Number: No. 97-1610,97-1610
• Parties: 75 Fair Empl.Prac.Cas. (BNA) 934, 72 Empl. Prac. Dec. P 45,111, 1997 Copr.L.Dec. P 27,706, 122 Ed. Law Rep. 603, 45 U.S.P.Q.2d 1040 S.R. SESHADRI, Plaintiff-Appellant, v. Masoud KASRAIAN, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 798

130 F.3d 798

75 Fair Empl.Prac.Cas. (BNA) 934,

72 Empl. Prac. Dec. P 45,111,

1997 Copr.L.Dec. P 27,706, 122 Ed. Law Rep. 603,

45 U.S.P.Q.2d 1040

S.R. SESHADRI, Plaintiff-Appellant, v. Masoud KASRAIAN, et al., Defendants-Appellees.

No. 97-1610.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 25, 1997.

Decided Dec. 3, 1997.

Harry E. VanCamp (argued), Louderman, Hayes, VanCamp, Priester & Schwartz, Madison, WI, for Plaintiff-Appellant.

Richard Briles Moriarty (argued), Wisconsin Dept. of Justice, Madison, WI, for Defendants-Appellees.

Before POSNER, Chief Judge, and BAUER and EVANS, Circuit Judges.

POSNER, Chief Judge.

A professor of electrical engineering at the University of Wisconsin appeals from the dismissal on summary judgment of his suit against a former graduate student for copyright infringement and against university officials for employment discrimination. This curious combination of claims comes about as follows. Seshadri, the plaintiff, and Kasraian, the graduate student, had a falling out over a paper that Seshadri had submitted under both their names for publication in the Journal of Applied Physics. Seshadri accused Kasraian of academic misconduct. Cleared of the charge after a hearing, Kasraian in turn complained to the university administration, which found that Seshadri had engaged in academic misconduct. The university suspended him for one year without pay and forbade him to advise graduate students indefinitely; we assume this means he can teach graduate students but cannot supervise their doctoral dissertations.

We can dispose very quickly of the Title VII claim, which is that Seshadri was sanctioned for his adherence to a "creed [that] requires scrupulous honesty ... in the scholarly pursuit of scientific knowledge." He claims that this is a religious creed, and he appeals to the provision of Title VII that forbids discrimination on grounds of religion. He refuses, however, to identify the religion. He claims a right not to do so, pointing out that government has no right to require a person to state his religious beliefs or affiliations. True enough; but a person who seeks to obtain a privileged legal status by virtue of his religion cannot preclude inquiry designed to determine whether he has in fact a religion. This would be obvious if Seshadri were claiming a right to a tax exemption on the ground that he is a religious institution. The Internal Revenue Service would not be required to accept his say-so. Living Faith, Inc. v. Commissioner, 950 F.2d 365, 372-74 (7th Cir.1991); United States v. Jeffries, 854 F.2d 254, 257-58 (7th Cir.1988); Spiritual Outreach Society v. Commissioner, 927 F.2d 335, 338-39 (8th Cir.1991). Nor the defendant accused in a Title VII case of religious discrimination.

It is true that the EEOC, following United States v. Seeger, 380 U.S. 163, 184-85, 85 S.Ct. 850, 862-63, 13 L.Ed.2d 733 (1965), does not think that the plaintiff in a case of religious discrimination must be a member of an authorized church or subscribe to its full menu of orthodox beliefs. 29 C.F.R. § 1605.1. We agree. Nottelson v. Smith Steel Workers D.A.L.U. 19802, 643 F.2d 445, 454 and n. 12 (7th Cir.1981); Redmond v. GAF Corp., 574 F.2d 897, 901 n. 12 (7th Cir.1978). For otherwise Jesus Christ, a heterodox Jew, could not be regarded as having been a victim of religious persecution. Heretics are a principal target of religious persecution. But it cannot be the law that an employee can insulate himself from discipline by his employer by claiming that his religion prevents him from meeting his employer's legitimate expectations. That would be absurd and it is blocked in some cases by two obstacles and in this case by one.

In some cases it will be obvious without entering the field of religious controversy (a field that American courts are for obvious reasons loth to enter) that the plaintiff's belief, however deep-seated, is not religious. An example is the finding of the district court in Brown v. Pena, 441 F.Supp. 1382 (S.D.Fla.1977), that even though the ancient Egyptians worshipped cats, a belief in the deeply spiritual effects of eating Kozy Kitten People/Cat Food is not a religious belief, and the plaintiff's consumption of the cat food was therefore not a religious observance. Seshadri's creed may be as religiously spurious as Brown's, but we cannot determine that on the basis of the present record.

The blocking principle in this case, a principle familiar from disability cases (most recently Matthews v. Commonwealth Edison Co., 128 F.3d 1194, 1195-96 (7th Cir.1997)), is that an employer does not violate federal antidiscrimination law if he fires (or takes other adverse personnel action against) an employee not because the employee is a member of a protected group but because the employee cannot, even with a reasonable accommodation to this condition, or will not, meet the employer's legitimate expectations; and this is true even though he could meet them if he were not disabled, old, or male, or what have you--in this case, if he were not in the grip of a creed that (improbably) required him to lodge a groundless complaint of misconduct against his student. Although Title VII imposes on the employer a duty of accommodation to an employee's religious beliefs that the religion clauses of the First Amendment ex proprio vigore do not, 42 U.S.C. § 2000e(j); Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 75, 97 S.Ct. 2264, 2272, 53 L.Ed.2d 113 (1977); Ryan v. U.S. Dept. of Justice, 950 F.2d 458, 461 (7th Cir.1991), we do not understand this to place a greater burden on the employer than in the cognate case of disability discrimination.

Seshadri's copyright claim has a little more legal substance. Kasraian published the article in question, "Double-grating thin-film devices based on second-order Bragg interaction," 75 J. Appl. Phys. 7639 (1994), under his own name. Seshadri claims that he, Seshadri, wrote the entire article. Kasraian counters that it was a joint work and points out that the author of a joint work is a joint owner entitled to copyright it and license the copyright to a third party, subject only to a duty to account to his coauthor for any profits. Erickson v. Trinity Theatre, Inc., 13 F.3d 1061, 1068 (7th Cir.1994) (construing 17 U.S.C. § 201); United States ex rel. Berge v. Board of Trustees, 104 F.3d 1453, 1461 (4th Cir.1997); see also Weinstein v. University of Illinois, 811 F.2d 1091, 1095 (7th Cir.1987). Kasraian further argues that Seshadri abandoned any copyright claim he might have had.

We must decide whether, as the district judge thought, there is no genuine issue of material fact concerning Kasraian's entitlement to the status of joint author notwithstanding Seshadri's insistence in his affidavit that he indeed wrote the whole thing and never intended to abandon his copyright claim. Since the Journal of Applied Physics did not pay Kasraian a fee, and no income is anticipated from a possible reprinting of the article elsewhere, Seshadri is not seeking compensatory damages or the accounting to which he would be entitled had there been any income from the publication. The Copyright Act provides, however, for statutory damages, 17 U.S.C. § 504(c); Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 433-34, 104 S.Ct. 774, 784-85, 78 L.Ed.2d 574 (1984), which he is seeking along with an injunction against Kasraian's attempting to republish the article.

When a party makes damaging admissions in his deposition and then tries to retract them in an affidavit, courts give short shrift to the affidavit. Russell v. Acme-Evans Co., 51 F.3d 64, 67-68 (7th Cir.1995); Darnell v. Target Stores, 16 F.3d 174, 176 (7th Cir.1994); Hayes v. New York City Dept. of Corrections, 84 F.3d 614, 619 (2d Cir.1996); Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1364-65 (8th Cir.1983). Seshadri was not deposed, but Kasraian argues that the affidavit attempts to cover a paper trail so unequivocal as to render the affidavit utterly incredible. Cf. United States v. Property Located at 15 Black Ledge Drive, 897 F.2d 97, 101-02 (2d Cir.1990). The argument raises a general issue of some importance.

An affiant's prior statements cannot be equated to either a deposition, which is under oath, Fed. R. Civ. P. 30(c), or to a judicial admission, as in a pleading, which is binding. Soo Line R.R. v. St. Louis Southwestern Ry., 125 F.3d 481, 483 (7th Cir.1997); Bright v. QSP, Inc., 20 F.3d 1300, 1305 (4th Cir.1994). It is merely an evidentiary admission, or prior inconsistent statement, which does not bind the witness. Murrey v. United States, 73 F.3d 1448, 1455 (7th Cir.1996); United States v. Blood, 806 F.2d 1218, 1221 n. 2 (4th Cir.1986); United States v. McKeon, 738 F.2d 26, 30 (2d Cir.1984). The opposing party can use it to try to discredit the witness's testimony, but the witness may be able to explain it away. And since a number of judicial opinions say that testimony cannot be rejected as incredible as a matter of law (that is, without need for a trial) unless it contains assertions that are contrary to the laws of nature, e.g., United States v. Zizzo, 120 F.3d 1338, 1359 (7th Cir.1997); United States v. Dennis, 115 F.3d 524, 535 (7th Cir.1997); United States v. Pena-Rodriguez, 110 F.3d 1120, 1123 (5th Cir.1997), it may seem to follow that mere evidentiary admissions (as distinct from depositions) contradicted by an affidavit could never be a basis for a grant of summary judgment to the opposing party because the jury might believe the affiant when he repeated the affidavit in oral testimony.

We disagree. The "laws of nature" formulation is an exaggeration designed to underscore the limited scope of appellate review of determinations of credibility, rather than a precise and exhaustive statement of the test for determining that scope. The example we gave earlier of an affidavit that contradicts the witness's deposition shows that the...