In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 03-1591

THOMAS FLANNERY,

Plaintiff-Appellant,

v.

RECORDING INDUSTRY ASSOCIATION OF AMERICA,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 02 C 2734—James B. Zagel, Judge.

____________

ARGUED SEPTEMBER 3, 2003—DECIDED JANUARY 6, 2004

____________

Before RIPPLE, ROVNER and DIANE P. WOOD, Circuit Judges.

RIPPLE, Circuit Judge. On October 22, 2001, Thomas

Flannery filed his first charge of discrimination with the

Equal Employment Opportunity Commission (“EEOC”). He

alleged age and disability discrimination by his former

employer, Recording Industry Association of America

(“RIAA”), in violation of the Age Discrimination in

Employment Act (“ADEA”), 29 U.S.C. § 621, et seq., and the

Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101,
2 No. 03-1591

et seq. At a later date, not clear from the record, Mr.

Flannery filed another charge with the EEOC based

on occurrences after his employment ended. 

After the EEOC issued a right to sue notice, Mr. Flannery

filed a complaint in the United States District Court for the

Northern District of Illinois on April 16, 2002, and then an

amended complaint on July 11, 2002. In his amended complaint, he stated four counts against RIAA. Counts I and III,

alleging discriminatory discharge in violation of the ADEA

and ADA, respectively, were based on Mr. Flannery’s claim

that he was fired after twenty-two years of employment

with RIAA because of his age, sixty-three, and because

of his disability, heart disease complicated by sleep apnea.

Counts II and IV, alleging retaliation in violation of the

ADEA and ADA, respectively, were based on Mr.

Flannery’s claim that RIAA had refused to give him consulting work, which it had earlier agreed to provide to him,

after it learned he had filed a charge of discrimination with

the EEOC.

On June 10, 2002, RIAA filed a motion to dismiss under

Federal Rule of Civil Procedure 12(b)(6). On February 4,

2003, the district court granted RIAA’s motion to dismiss as

to all counts and entered judgment in RIAA’s favor. The

district court held the discriminatory discharge claims

(Counts I and III) were time-barred, and the retaliation

claims (Counts II and IV) were not actionable because

retaliation connected to an independent contractor relationship does not have the requisite nexus to an employment

relationship. Mr. Flannery timely appealed both of these

holdings. Because we are in respectful disagreement with

the determinations of the district court, we must reverse its

judgment and remand the case for further proceedings.
No. 03-1591 3

I

BACKGROUND

A. Facts

Mr. Flannery worked for RIAA as an investigator in

RIAA’s Oak Brook, Illinois office. In 1997, Mr. Flannery was

diagnosed with an irregular heartbeat, and, in August of

2000, he was diagnosed with sleep apnea. In his amended

complaint, he maintains that, in a March 2000 meeting, his

supervisors told him that he would have to leave his

employment because his health was bad and he was getting

older. Mr. Flannery responded by telling his supervisors he

did not want to leave. At that point, they told him that they

would keep him on and see how things went.

Mr. Flannery further contends that, on June 14, 2001, he

was told he would be terminated effective October 1, 2001.

On the same day, he received a letter from RIAA’s vicepresident, Frank Walters, explaining the terms of his termination. Mr. Walters’ letter set forth three benefits that Mr.

Flannery would receive as a result of his departure from

RIAA: (1) severance pay; (2) the possibility of continued

health benefits; and (3) continued work in a consulting

capacity with RIAA. As to the third, the letter explained that

Mr. Flannery could expect that his services would be

utilized in several different RIAA offices and result in

approximately twenty hours of billable work per week. An

August 20, 2001 e-mail from Frank Creighton, another RIAA

official, to Mr. Flannery stated that he should regard the

June 14, 2001 letter as “official notice” of his “current and

future status with RIAA.” Am. Compl., Ex.B.

Consistent with the June 14, 2001 letter, Mr. Flannery’s

employment at RIAA ended on October 1, 2001. At the time

of his departure, he had worked for RIAA for twenty-two
4 No. 03-1591

years and was sixty-three years old. Mr. Flannery filed his

first charge of discrimination with the EEOC on October 22,

2001. He was never contacted regarding the consulting work

promised in the June 14, 2001 letter.

B. District Court Proceedings

On February 4, 2003, the district court granted RIAA’s

motion to dismiss in its entirety and entered judgment in

favor of RIAA. First, the district court determined that the

discriminatory discharge claims (Counts I and III) were

time-barred. The court noted that in Illinois an employee

may sue under the ADEA or ADA only if he files a charge

of discrimination with the EEOC within 300 days of the

alleged unlawful employment practice, which in this case

was the unlawful discharge. The court further held that the

limitations period commenced when RIAA supervisors told

Mr. Flannery at the March 2000 meeting that he would have

to leave because of his age and health. Because the clock

began to run in March of 2000 and Mr. Flannery’s first

EEOC charge was not filed until October 22, 2001, over 300

days later, the district court held that the discriminatory

discharge counts were time-barred. Accordingly, these

counts were dismissed. 

Next, the district court dismissed the retaliation claims

(Counts II and IV) for failure to state a claim upon which

relief can be granted. The court first held that, in order to be

actionable, retaliation against a former employee must

impinge on future employment prospects or otherwise have

a nexus to employment. The district court then noted that

neither the ADEA nor the ADA generally protects independent contractors. Applying these principles, the court

held the alleged retaliation against Mr. Flannery did not
No. 03-1591 5

have a nexus to employment because it affected a potential

independent contractor relationship, an unprotected status,

rather than an employer-employee relationship. Furthermore, the court noted that Mr. Flannery did not allege that

RIAA’s actions affected any other future prospects for work.

Therefore, the retaliation counts failed to state a claim and

were dismissed.

II

DISCUSSION

We review a district court’s grant of a motion to dismiss

de novo. See Marshall-Mosby v. Corporate Receivables, Inc., 205

F.3d 323, 326 (7th Cir. 2003). In performing this analysis, we

are obliged to accept all well-pleaded allegations in the

complaint as true and to draw all reasonable inferences in

favor of the plaintiff. See id. Dismissal under Rule 12(b)(6) is

only appropriate when there is no possible interpretation of

the complaint under which it can state a claim. See Martinez

v. Hooper, 148 F.3d 856, 858 (7th Cir. 1998). Applying these

standards to this case presents us with two questions: First,

is there a reasonable interpretation of Mr. Flannery’s

complaint under which his discriminatory discharge claims

are not time-barred? Second, is there a reasonable interpretation of his complaint under which his retaliation claims

state a claim upon which relief can be granted? We shall

address each of these questions in turn.

A. Discriminatory Discharge Claims (Counts I & III)

In Illinois, an employee may sue under the ADEA or ADA

only if he files a charge of discrimination with the EEOC

within 300 days of the alleged “unlawful employment

practice.” See Hamilton v. Komatsu Dresser Indus., 964 F.2d

600, 603 (7th Cir. 1992). In discriminatory discharge cases,
6 No. 03-1591

two elements are necessary to establish the date on which

the “unlawful employment practice” occurred. First, there

must be a final, ultimate, non-tentative decision to terminate

the employee. See Delaware State Coll. v. Ricks, 449 U.S. 250,

258-59 (1980). However, an employer who communicates a

willingness to later change a final decision of termination, as

through an appeals process, does not render a decision

“tentative” and not final for the purposes of beginning the

limitations period. See id. at 261. Second, the employer must

give the employee “unequivocal” notice of its final termination decision. See Dvorak v. Mostardi Platt Assocs., Inc., 289

F.3d 479, 486 (7th Cir. 2002). Both of these elements are

necessary to start the limitations period; neither alone is

sufficient. See Ricks, 449 U.S. at 258-59; Dvorak, 289 F.3d at

486.

Each party submits a different date as the point in time on

which these elements were satisfied. RIAA contends that the

March 2000 conversation between Mr. Flannery and his

supervisors constituted a final decision with unequivocal

notice. In its view, under Ricks and Dvorak, the clock began

to run on that date. RIAA suggests that this decision was

perhaps followed by an agreement to reconsider RIAA’s

final discharge decision, but it submits that any such

reconsideration had no effect on the limitations period.

Under this version of events, Mr. Flannery’s claim is timebarred because his EEOC charge was filed on October 22,

2001, more than 300 days beyond the “unlawful employment practice.”

Mr. Flannery disputes this characterization of the March

2000 conversation. He claims that RIAA’s decision at the

March meeting was tentative and non-final. Furthermore, he

submits that, even assuming a final decision was made at

that time, the conversation that took place provided him

with only equivocal notice. Cast this way, the March 2000
No. 03-1591 7

1 RIAA’s argument focuses on the EEOC charge as an attachment

to the complaint. It does not argue, at least with any force, that

Mr. Flannery’s allegations within his original complaint estop

him from claiming in his amended complaint that March 2000

was not the date of the “unlawful employment action.” It is

axiomatic that an amended complaint supersedes an original

complaint and renders the original complaint void. See Fuhrer v.

Fuhrer, 292 F.2d 140, 144 (7th Cir. 1961) (rejecting the argument

that “the original complaint contained admissions which estop

plaintiffs from maintaining their alleged action set forth in the

amended complaint”); 6 Charles Alan Wright et al., Federal

Practice and Procedure § 1476 (2d ed. 1990). Because the EEOC

charge and original complaint contain similar factual descrip-

(continued...)

meeting did not start the clock under Ricks or Dvorak. Mr.

Flannery points instead to June 14, 2001, as the date of the

final decision and unequivocal notice. His amended complaint explains that, on or about this date, he was informed

of RIAA’s final decision to terminate him. June 14, 2001 is

also the date of Mr. Flannery’s termination letter, which another RIAA official later deemed as Mr. Flannery’s “official

notice” of his “current and future status with RIAA.” If June

14, 2001 is the appropriate date, it is within 300 days of

October 22, 2001, and his claims are not time-barred.

1.

As a threshold matter, RIAA submits that Mr. Flannery’s

original EEOC charge establishes, as a matter of law, its

version of events. As RIAA notes, this court has long held

that, when a document contradicts a complaint to which it

is attached, the document’s facts or allegations trump those

in the complaint.1 See Thompson v. Illinois Dep’t of Prof. Reg.,
8 No. 03-1591

1 (...continued)

tions, however, we shall discuss them together, even though the

original complaint is not relevant to the doctrine on which RIAA

bases its argument.

300 F.3d 750, 754 (7th Cir. 2002). This principle is a sister

doctrine of our rule applied in the summary judgment context that a party cannot create a genuine issue of material

fact by contradicting prior sworn testimony. See Bank of

Illinois v. Allied Signal Safety Restraint Sys., 75 F.3d 1162,

1168-72 (7th Cir. 1996). Both of these doctrines serve an important purpose of weeding out non-meritorious claims for

which a trial is not necessary. See id. at 1170. 

These doctrines, however, must be applied with caution.

As we said in Bank of Illinois, “[a] definite distinction must

be made between discrepancies which create transparent

shams and discrepancies which create an issue of credibility

or go to the weight of the evidence.” Id. at 1169-70 (quoting

Tippens v. Celotex Corp., 805 F.2d 949, 953 (11th Cir. 1986)).

Credibility and weight are issues of fact for the jury, and we

must be careful not to usurp the jury’s role. Id. at 1170. For

this reason, these doctrines are only triggered upon a

threshold determination of a “contradiction,” which only

exists when the statements are “inherently inconsistent,” id.

at 1169 n.10; not when the later statement merely clarifies an

earlier statement which is ambiguous or confusing on a

particular issue, id. at 1171-72. 

Mr. Flannery’s EEOC charge, in a section entitled “DATE

DISCRIMINATION TOOK PLACE,” describes the “EARLIEST” date of discrimination as “March 2000” and the “LATEST” date as “Oct. 2001.” The attached explanation of the

“PARTICULARS” of the alleged discrimination explains in

relevant part:
No. 03-1591 9

In March 2000, my supervisors, Frank Creighton and

Frank Walters, told me that I would have to leave my

employment because my health was bad and I was

getting older. Frank Creighton told me that he would

keep me on for a period of time so that I could train new

hires. In August 2000, I was diagnosed with sleep

apnea. I was discharged from my employment effective

October 1, 2001. 

Original Compl., Ex.A. Mr. Flannery’s original complaint

contained a similar account of the March 2000 meeting. See

Original Compl. ¶ 5. In his amended complaint, Mr.

Flannery sets forth the following version of events: 

In March 2000, plaintiff’s supervisors told him that

he would have to leave his employment because his

health was bad and because he was getting older.

Plaintiff told his supervisors that he did not want to

leave. Plaintiff’s supervisors told him that they would

keep him on and see how things went. They also told

him that he would be responsible for training new hires.

In August 2000, plaintiff was diagnosed with sleep

apnea. On or about June 14, 2001, plaintiff was informed

by his supervisor that he would be terminated effective

October 1, 2001. See Exhibit A hereto. Plaintiff was told

that this would serve as official notice of his termination. See Exhibit B hereto.

Am. Compl. ¶¶ 5-7. Exhibit A is the June 14, 2001 letter

from Mr. Walters to Mr. Flannery, which begins: “Per our

discussions, please see the proposed severance package

offered to you by the RIAA. Your final day of employment

will be October 1, 2001.” Exhibit B is the subsequent e-mail

from Mr. Creighton, which states in relevant part: “I

instructed Frank [Walters] to send you the attached notice.

As your current supervisor, it was appropriate that it come

from him. I reviewed and approved the document before it
10 No. 03-1591

was sent, therefore it stands as official notice of your current

and future status with RIAA.” 

Applying these principles to the EEOC charge and original complaint as well as to the amended complaint, we

must conclude that the documents’ respective version of

events are not so “inherently inconsistent” as to necessitate

judgment in RIAA’s favor. Neither the EEOC rules governing charge forms nor the notice pleading requirements

mandate a detailed elaboration of the events underlying the

plaintiff’s claim. See 29 C.F.R. § 1601.12(a)-(b) (An EEOC

charge should state a “clear and concise statement of the

facts, including pertinent dates” but is valid if it is “sufficiently precise to identify the parties, and to describe

generally the action or practices complained of.”); Higgs v.

Carver, 286 F.3d 437, 439 (7th Cir. 2002) (“All that need be

specified [in a plaintiff’s complaint] is the bare minimum

facts necessary to put the defendant on notice of the claim

so that he can file an answer.”). In his EEOC charge and

complaint, Mr. Flannery set forth a terse explanation of the

March 2000 meeting, which was all he was required to do.

A description of that meeting in particular was necessary

not because it was the date on which RIAA had made the

final decision to fire him, but because, at that meeting, RIAA

officials had identified specifically his age and health as the

reasons for his dismissal. These factors were, of course, the

essential elements of his discrimination claims. Notably, the

description of the March 2000 meeting is provided in the

section of the EEOC charge form for “PARTICULARS” of

the alleged discrimination. In the section of the charge form

entitled “DATE DISCRIMINATION TOOK PLACE,” on the

other hand, “March 2000” is identified as the “EARLIEST”

date and “Oct. 2001” as the “LATEST.” The amended

complaint, in turn, elaborates and clarifies that, in the March

2000 meeting, Mr. Flannery had responded to his supervi-
No. 03-1591 11

sors’ statement that he would “have to leave” by informing

them he did not want to leave, and his supervisors had

responded by agreeing to keep him on to see how things

went. It also provides a very plausible account as to why the

final termination decision and unequivocal notice were not

accomplished until June 14, 2001.

The statements at issue could be read differently and infer

an inconsistency, but the mere necessity of making that

inference confirms that the inconsistency is not inherent. As

was noted at oral argument, RIAA may utilize both the

EEOC charge and the original complaint as impeaching

evidence at trial, and a jury might be persuaded that the

statements in the EEOC charge and the original complaint

about the March 2000 meeting foreclose Mr. Flannery’s

elaboration in his amended complaint. See, e.g., Fuhrer

v. Fuhrer, 292 F.2d 140, 144 (7th Cir. 1961) (noting the

defendants could enter a superseded complaint into evidence at trial but the plaintiffs could also explain alleged

admissions in the superseded complaint); White v. ARCO/

Polymers, Inc., 720 F.2d 1391, 1396 n.5 (5th Cir. 1983)

(“Admissions made in superseded pleadings are as a general rule considered to lose their binding force, and to have

value only as evidentiary admissions.”); 30B Michael H.

Graham, Federal Practice and Procedure § 7026 (interim

ed. 2000) (explaining that statements in superseded or

withdrawn pleadings constitute “evidentiary,” as opposed

to “judicial,” admissions, which “may be controverted or

explained by the party”); cf. Phillips v. Union Carbide, 2003

WL 1873086, at *2 (E.D. La. 2003) (“This more recent answer

in 2003, contradicts Plaintiff’s earlier admissions in her

EEOC charge and her deposition testimony discussed

above, and creates a disputed issue of fact.”). However, we

do not believe the documents are so inconsistent so as to

foreclose Mr. Flannery’s claims at this early stage.
12 No. 03-1591

2.

We therefore return to the question of the proper date of

the “unlawful employment practice” with our focus solely

on the amended complaint. Two principles guide our determination on this question. First, it bears repeating that,

because this case comes to us on a motion to dismiss, we

must consider all the alleged facts in the amended complaint as true, draw all reasonable inferences in favor of Mr.

Flannery, and ask “whether there is any possible interpretation of the complaint under which it can state a claim.”

Martinez v. Hooper, 148 F.3d 856, 858 (7th Cir. 1998). Second,

our cases hold that the date on which an unlawful employment practice occurs—in this case, when a termination

decision is final and when unequivocal notice is given—is

a question of fact. See Lever v. Northwestern Univ., 979 F.2d

552, 557 (7th Cir. 1992).

Taking these two principles together, the amended

complaint alleges that, at the March 2000 meeting, RIAA

officials initially told Mr. Flannery he would “have to

leave,” but that, by the end of the meeting, they had agreed,

at Mr. Flannery’s request, to keep him on and see how

things went. Under these facts, a plausible interpretation of

the March 2000 decision is that any decision was “tentative,” Ricks, 449 U.S. at 261, not a “concrete act [which]

smack[ed] of finality,” Lever, 979 F.2d at 554. It also is at

least as plausible that the other date presented to us by Mr.

Flannery, June 14, 2001, was the date of the final termination

decision. According to his allegations, on or about June 14,

2001, Mr. Flannery was told that he would be terminated

effective October 1, 2001. The letter from Mr. Walters describing the benefits he would receive upon his termination

was also dated June 14, 2001. Finally, that letter was subsequently identified by Mr. Creighton as Mr. Flannery’s

“official notice” of his “current and future status with
No. 03-1591 13

RIAA.” Am. Compl., Ex.B. We do not mean to imply that

Ricks and Lever necessarily require that a definitive termination date must be given, or that the termination decision

must be memorialized in an “official” communication, in

order for the employer’s decision to be “final.” See Ricks, 449

U.S. at 257 (“Mere continuity of employment, without more,

is insufficient to prolong the life of a cause of action for

employment discrimination.”); Mull v. ARCO Durethene

Plastics, Inc., 784 F.2d 284, 288 (7th Cir. 1986). Our only

holding is that these facts, taken together, and assumed to

be true, permit the conclusion that the final termination

decision was not made until June 14, 2001.

Furthermore, even assuming that a final decision was

made at the March 2000 meeting, the tentativeness of RIAA

officials at that meeting permit an interpretation that, at that

time, RIAA failed to give Mr. Flannery the requisite unequivocal notice. As we have previously noted, notice to the

employee is only sufficient if it provides a “clear intention to

dispense with the employee’s services.” Dvorak, 289 F.3d at

486 (emphasis added). Requiring employees like Mr.

Flannery to file EEOC charges on the basis of ambiguous

conversations regarding termination would cause a flood of

false charges; litigants would be forced to file a charge at

every hint of termination in order to preserve their claims.

See Stewart v. Booker T. Washington Ins., 232 F.3d 844, 849

(11th Cir. 2000). The concomitant burden upon the EEOC

would impact significantly the enforcement function of the

agency.

In sum, according to the amended complaint, on or about

June 14, 2001, Mr. Flannery was first told of RIAA’s final

decision to terminate him. At the same time, he received

a termination letter later deemed an “official notice” of his

future status with RIAA. Assuming these facts are true, the

first date on which Mr. Flannery received unequivocal
14 No. 03-1591

notice is a close call as between March of 2000 and June 14,

2001. It certainly cannot be decided at this early stage of the

litigation. Again, we do not mean to suggest that for a notice

to be operable it must necessarily be written or “official”;

however, it must be “unequivocal.” See Mull, 784 F.2d at 288

(“[U]nder Ricks and its progeny unequivocal notice of

termination is all that is required to start the limitations

period running; it is not necessary for such notice to be in

writing.”). We hold only that the facts in the amended

complaint permit the conclusion that the first date of unequivocal notice of termination, like the date of the final

termination decision, was June 14, 2001. We must therefore

reverse the district court’s holding that Mr. Flannery’s

discriminatory discharge claims are time-barred.

B. Retaliation Claims (Counts II & IV)

Both the ADEA and the ADA prohibit retaliation against

an employee for having filed a charge of discrimination. See

29 U.S.C. § 623(d) (ADEA); 42 U.S.C. § 12203(a) (ADA). Mr.

Flannery alleged in his amended complaint that RIAA had

retaliated against him for filing a charge of discrimination

with the EEOC by refusing to give him consulting or independent contractor work that had been promised to him

before he left RIAA. The June 14, 2001 letter, which set forth

three benefits that Mr. Flannery would or could receive

upon his termination, memorialized the third benefit, the

consulting agreement, as follows:

As we discussed, after October 1, 2001, the RIAA would

utilize your services as an Investigative Consultant.

Your fee would be $60.00 an hour and .40 per miles for

personal vehicle use. You would be compensated for

attendance at any court hearings, trials on other matters

relating to cases currently pending and for cases you
No. 03-1591 15

2 Veprinsky was addressing Title VII, but its principle governs in

the ADEA and ADA context as well. See, e.g., Nawrot v. CPC Int’l,

277 F.3d 896 (7th Cir. 2002) (addressing discrimination and

retaliation claims brought by a former employee under the ADEA

and ADA).

3 Mr. Flannery also argues that his retaliation claims are actionable even if the alleged retaliatory actions taken by RIAA lack a

nexus to employment. This circuit has not been entirely clear on

whether an employment nexus is necessary to state a retaliation

(continued...)

generate after October 1, 2001. We would anticipate that

your services will be utilized by a number of RIAA

offices and result in approximately 20 hours of billable

work per week.

Am. Compl., Ex.A.

Both parties agree that the ADEA and ADA only protect

“employees” and not independent contractors. See Aberman

v. J. Abouchar & Sons, Inc., 160 F.3d 1148, 1150 (7th Cir. 1998).

Thus, independent contractors do not have standing to sue

under these statutes. See Vakharia v. Swedish Covenant Hosp.,

190 F.3d 799, 805 (7th Cir. 1999). However, Mr. Flannery is

not suing as an independent contractor, but as a former

employee of RIAA. As we said in Veprinsky v. Fluor Daniel,

Inc., 87 F.3d 881 (7th Cir. 1996), “former employees, in so far

as they are complaining of retaliation that impinges on their

future employment prospects or otherwise has a nexus to

employment, do have the right to sue their former employers.”2 Id. at 891. RIAA argues, consistent with the district

court, that Mr. Flannery’s claim is nevertheless barred

because retaliation with respect to an independent contracting agreement lacks an employment nexus, even if that

agreement flows from an employer-employee relationship.

We respectfully disagree.3
16 No. 03-1591

3 (...continued)

claim. Compare Johnson v. Cambridge Indus., 325 F.3d 892, 902 (7th

Cir. 2003) (Adverse action “will not always be employmentrelated” but the employee must show “real harm.”) with Ajayi v.

Aramark Bus. Servs., Inc., 336 F.3d 520, 533 (7th Cir. 2003) (To state

a claim for retaliation, the plaintiff must allege an “adverse

employment reaction.”). Other circuits are split on the matter. See

Ray v. Henderson, 217 F.3d 1234, 1240-43 (9th Cir. 2000) (discussing the split in circuits). Because we hold the retaliatory acts Mr.

Flannery has alleged have a nexus to employment, it is not

necessary for us to definitively resolve this issue in this case.

Therefore, for purposes of our analysis, we proceed under the

assumption that an employment nexus is required for a valid

retaliation claim under the ADEA and ADA.

It is unquestionable that Mr. Flannery’s consulting arrangement grew out of his employment relationship with

RIAA. The cases on which Mr. Flannery was to work as an

investigative consultant after his employment ended were

some of the same cases he was working on as an employee.

More importantly, the independent contracting arrangement

was one part of his severance package from RIAA. The June

14, 2001 letter from Mr. Walters set forth three benefits Mr.

Flannery would or could receive upon his separation from

RIAA: (1) severance pay; (2) the possibility of health

benefits; and (3) the consulting arrangement. Because this

package grew out of his employment with RIAA, denial as

to any part of the package would satisfy the employment

nexus. See, e.g., Jones v. Ryder Servs. Corp., 1997 WL 158329,

at *5 (N.D. Ill. 1997) (holding that withdrawing a workers’

compensation settlement offer constituted actionable

retaliation). The mere fact that part of the severance package

was a consulting arrangement does not destroy the preexisting employer-employee nexus. 
No. 03-1591 17

4 RIAA argues that this aspect of Mr. Flannery’s retaliation claim

is waived because he failed to present it to the district court. See

Datamatic Servs., Inc. v. United States, 909 F.2d 1029, 1034 (7th Cir.

1990). Mr. Flannery’s brief in opposition to RIAA’s motion to

(continued...)

The very purpose of the retaliation provisions is to prevent employers from deterring employees from exercising

their rights, including the right to file a charge of discrimination. See EEOC v. Bd. of Governors of State Colls. and

Univs., 957 F.2d 424, 431 (7th Cir. 1992). An employer’s

withdrawal of part of an employee’s severance package,

occurring at a time when the departing employee is most

vulnerable, undoubtedly would make other employees

think twice before filing a discriminatory termination

charge. Our holding is further supported by the only case

cited to us that is directly on point, Elliot v. British Tourist

Auth., 172 F. Supp. 2d 395 (S.D.N.Y. 2001). In Elliot, the

plaintiff alleged that, as retaliation for filing a charge of

age discrimination, his employer had withdrawn its pretermination offer of consulting work to him. Id. at 403.

Although the court ultimately ruled his retaliation claims

were not actionable for other reasons, it held that an employer’s failure to give a former employee consulting work

which it promised he would get before he was terminated

stated “a prima facie case of retaliation that would survive

a motion to dismiss under Rule 12(b).” Id. at 404. We agree

with Elliot and hold that Mr. Flannery’s retaliation claims

have the requisite nexus to employment and are thus

actionable. 

 Mr. Flannery further submits that the denial of consulting

work will affect his future employment prospects by

denying him potential contacts in the industry which in turn

could produce other employment.4

See Veprinsky, 87 F.3d at
18 No. 03-1591

4 (...continued)

dismiss does not specifically allege that the denial of consulting

will affect his future employment prospects. See R.5 at 5-7. In its

order, the district court also stated: “Mr. Flannery does not allege

that RIAA’s actions affected any other future prospects.” See R.7.

However, the issue of whether Mr. Flannery’s retaliation claims

have a sufficient nexus to employment was clearly before the

district court. Because, in the context presented by this complaint,

this aspect of Mr. Flannery’s retaliation claim is part and parcel

of that same issue, we conclude it is not waived for purposes of

this appeal.

891 (“[F]ormer employees, in so far as they are complaining

of retaliation that impinges on their future employment prospects or otherwise has a nexus to employment do have the

right to sue their former employers.” (emphasis added)).

RIAA correctly notes that retaliation claims must be based

on facts, and not on speculative theories. See Sauzek v. Exxon

Coal USA, Inc., 202 F.3d 913, 919 (7th Cir. 2000) (“Speculation based on suspicious timing alone, however, does not

support a reasonable inference of retaliation; instead,

plaintiffs must produce facts which somehow tie the

adverse decision to the plaintiffs’ protected actions.”).

However, Mr. Flannery has set forth sufficient facts to

permit the inference that the consulting contract is a significant bridge to his future career prospects. Under the consulting arrangement, Mr. Flannery was to receive approximately twenty hours per week of consulting work at various

RIAA offices. At this stage of the proceedings, we cannot

say that such an opportunity is not a sufficient amount of

professional activity to have a significant effect on his future

employment prospects. 

In sum, then, we hold that the denial of promised consulting work arising out of Mr. Flannery’s employment has
No. 03-1591 19

a nexus to his employment and also could have an effect on

future employment prospects. For these reasons, we must

reverse the district court’s dismissal of his retaliation claims

for failure to state a claim upon which relief can be granted.

Conclusion

For the foregoing reasons, we reverse the judgment of the

district court, and the case is remanded to the district court

for proceedings consistent with this opinion. Mr. Flannery

may recover his costs in this court.

REVERSED and REMANDED

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—1-6-04