In the

United States Court of Appeals

For the Seventh Circuit

No. 10-1846

KEVIN LOUDERMILK,

Plaintiff-Appellant,

v.

BEST PALLET COMPANY, LLC, and DAN LYONS,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Western Division.

No. 08 C 6869—Philip G. Reinhard, Judge.

ARGUED OCTOBER 6, 2010—DECIDED FEBRUARY 18, 2011

Before EASTERBROOK, Chief Judge, and WOOD and

EVANS, Circuit Judges.

EASTERBROOK, Chief Judge. Kevin Loudermilk worked

at Best Pallet Company, where his principal task was to

disassemble pallets and stack the wood for reuse.

Multiple employees worked simultaneously on a “teardown machine.” Laborers at one end broke pallets into

pieces, which were passed to others for stacking.

Loudermilk contends that each side of the machine in
2 No. 10-1846

the stacking area should have had at least two workers,

but that Best Pallet assigned its staff so that two or more

Hispanic workers were on one side, while Loudermilk

(who is black) worked alone on the other. He could

not keep up and was criticized for allowing boards to

fall, and when he complained about the lack of help the

Hispanic workers hurled racial epithets. He complained

in turn about these taunts; management did nothing,

Loudermilk says. (All of this opinion’s factual narrative

comes from Loudermilk’s allegations and evidence,

which we must accept for current purposes.)

During April 2006 Loudermilk lodged several complaints with management. He began to talk about filing

a charge with the EEOC. On April 25 he took some

pictures of the work area, apparently to show the

agency (and, if necessary, a court) how the tear-down

machine was set up and why it needed two stackers

on each side. Dan Lyons, a supervisor, told him to stop

taking pictures. When Loudermilk reiterated his concerns about being treated differently from the Hispanic

workers, Lyons told him: “Put it in writing.” Loudermilk

did just that and handed Lyons a note the next day.

Lyons fired him on the spot. Loudermilk then filed a

charge of discrimination with the EEOC, which concluded that Best Pallet probably had engaged in racial

discrimination and retaliation. Best Pallet declined to

settle the charge during the administrative process,

however, so the EEOC sent Loudermilk a right-to-sue

letter, and he sued.

Title VII of the Civil Rights Act of 1964 forbids retaliation against anyone who “has opposed any practice
No. 10-1846 3

made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation,

proceeding, or hearing under this subchapter.” 42 U.S.C.

§2000e–3(a). See generally Thompson v. North American

Stainless, LP, No. 09–291 (U.S. Jan. 24, 2011). As the case

comes to us, Loudermilk has a single claim for relief:

that Best Pallet fired him because he “opposed” its

practice of favoring Hispanic over black workers. He

makes this contention under the “direct” method, as

opposed to the burden-shifting “indirect” method of

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and

its successors.

The district court granted summary judgment for

defendants, concluding that Loudermilk lacks evidence

that his opposition to racial or national-origin discrimination caused his discharge. As the court saw things,

Loudermilk’s only evidence is timing: he handed Lyons

a note and was fired. Lyons had not read the note, so he

did not know that it contained a complaint about racial

discrimination. Anyway, the judge thought, a temporal

sequence does not show causation. Post hoc ergo propter

hoc is the name of a logical fallacy, not a means to

prove causation.

One problem with this approach is that it takes defendants’ view of the evidence rather than Loudermilk’s.

Best Pallet insists that Lyons did not read the note

before firing Loudermilk, but Lyons himself says that he

did read it (though Lyons maintains that Loudermilk

delivered the note some days before being fired). When
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ruling on a motion for summary judgment, the party

opposing the motion gets the benefit of all facts that a

reasonable jury might find. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242 (1986); Celotex Corp. v. Catrett, 477 U.S. 317

(1986). A jury would be entitled to believe that Lyons

read the note. Indeed, a jury would be entitled to find

that Lyons knew the content of the note whether he read

it or not. Only the day before, Loudermilk had made

an oral complaint about racial discrimination, and Lyons

had told him to “[p]ut it in writing.” What did Lyons

think was in the note he received the next day? An invitation to a birthday party?

Best Pallet says that it fired Loudermilk not because

of the note’s content, but because he had taken pictures

of the work site, in violation of company policy. But it

did not give that explanation to Loudermilk—or for that

matter the EEOC. Best Pallet told the agency that it let

Loudermilk go as part of a reduction in force (though

Loudermilk’s name was not on a list of workers that

had been prepared for that purpose). In court it abandoned that explanation and contended that Loudermilk

had resigned, or that his departure was a “mutual decision.” Since Loudermilk says that he did not resign,

that explanation can’t prevail at the summary judgment stage. This led to the “fired for photography” contention, which is problematic not only because the nophotography policy may have been cooked up after the

fact, but also because it comes close to conceding retaliation.

If the reason that Loudermilk snapped the photos was

to bolster his claim of discrimination, then forbidding
No. 10-1846 5

picture-taking looks a lot like an attempt to block the

gathering of evidence during an investigation.

We don’t say that §2000e–3(a) allows workers to break

locks and rifle managers’ desk drawers in search of evidence; our point is that a “policy” that may have been

devised to curtail an investigation is not the sort of

neutral rule that would adequately explain a discharge.

The Civil Rights Act of 1964 does not require employers

to have “just cause” for sacking a worker, see Pollard v. Rea

Magnet Wire Co., 824 F.2d 557 (7th Cir. 1987), but an

employer who advances a fishy reason takes the risk

that disbelief of the reason will support an inference that

it is a pretext for discrimination. See Reeves v. Sanderson

Plumbing Products, Inc., 530 U.S. 133, 146–49 (2000); St.

Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993); Texas

Department of Community Affairs v. Burdine, 450 U.S. 248

(1981).

The discharge’s timing also could support an adverse

inference by a reasonable trier of fact. Suspicious timing

may be just that—suspicious—and a suspicion is not

enough to get past a motion for summary judgment. See

Lewis v. Chicago, 496 F.3d 645, 656 (7th Cir. 2007). Occasionally, however, an adverse action comes so close on the

heels of a protected act that an inference of causation

is sensible. See, e.g., Clark County School District v.

Breeden, 532 U.S. 268, 273 (2001) (“very close” temporal

proximity can suffice); Casna v. Loves Park, 574 F.3d 420,

427 (7th Cir. 2009); Spiegla v. Hull, 371 F.3d 928, 943 (7th

Cir. 2004); McClendon v. Indiana Sugars, Inc., 108 F.3d 789,

796–97 (7th Cir. 1997). Deciding when the inference
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is appropriate cannot be resolved by a legal rule; the

answer depends on context, just as an evaluation of

context is essential to determine whether an employer’s

explanation is fishy enough to support an inference

that the real reason must be discriminatory. The district

court’s apparent belief that timing never supports an

inference of causation is untenable. The closer two

events are, the more likely that the first caused the second. We think that an inference of causation would

be reasonable here. A jury, not a judge, should decide

whether the inference is appropriate.

Defendants contend that Loudermilk’s complaints

were too vague, but §2000e–3(a) does not have a vagueness exception. The question is whether the employee

opposed an unlawful employment practice—at least, one

that the employee reasonably believed to be unlawful.

See Fine v. Ryan International Airlines, 305 F.3d 746, 752

(7th Cir. 2002). (Frivolous complaints are not protected.

See Mattson v. Caterpillar, Inc., 359 F.3d 885, 890 (7th Cir.

2004).) The evidence in this record would allow a reasonable person in Loudermilk’s position to conclude that

Best Pallet favored Hispanic over black workers with

respect to material conditions of employment, condoned

a racially hostile workplace, and thus violated Title

VII. Loudermilk’s protests were protected. Whether

Loudermilk was right in his belief does not matter.

The judgment is reversed, and the case is remanded

for trial.

2-18-11