In the

United States Court of Appeals

For the Seventh Circuit

No. 00-2885

Robert D. Speedy,

Plaintiff-Appellant,

v.

Rexnord Corporation,

Defendant-Appellee.

Appeal from the United States District Court 

for the Southern District of Indiana,

Indianapolis Division.

No. IP-98-0687-C-T/G--John Daniel Tinder,

Judge.

Argued February 15, 2001--Decided March 16,

2001

 Before Flaum, Chief Judge, and Bauer and

Rovner, Circuit Judges.

 Flaum, Chief Judge. Robert D. Speedy,

acting as a union steward, accompanied

two female employees of the Rexnord

Corporation ("Rexnord") to file sexual

discrimination complaints against a

Rexnord supervisor. Within a month of his

action, Speedy was suspended for

excessive absenteeism, and eventually

terminated. Speedy filed suit in the

district court alleging that he had been

discharged in retaliation for his

participation in activities protected

under Title VII. The case proceeded to

trial, where a jury determined that while

Rexnord had retaliated against Speedy for

accompanying the employees to file their

complaints, Rexnord had sufficiently

proved an affirmative defense by showing

that it would have fired Speedy for

attendance reasons, regardless of any

retaliatory motivation that the company

may have harbored. Speedy filed a motion

for judgment as a matter of law, arguing

that there was insufficient evidence to

have allowed Rexnord’s affirmative
defense to be presented to the jury. The

district court denied Speedy’s motion,

and he now appeals. In addition to

challenging the district court’s

conclusion regarding Speedy’s motion for

judgment as a matter of law, Speedy also

contends that the district court

erroneously excluded evidence that Speedy

had engaged in other protected

"opposition" conduct, and incorrectly

refused to award Speedy attorney’s fees

as a prevailing party. For the reasons

stated herein, we affirm the decision of

the district court.

I. BACKGROUND 

 In January of 1993, Rexnord, a

manufacturer of roller and drive chain,

retained Robert Speedy for a general

production position. Speedy, who at all

times relevant to this matter labored

under the direct supervision of Don

Tipmore, was elected union steward for

his production department in July of

1996. In that capacity, it was Speedy’s

obligation to relay the complaints of

employees to their supervisors or other

management officials. Acting as a union

steward, on September 4, 1996, Speedy

accompanied two of Rexnord’s female

employees--Darcia Sessions and Gail

Marlin--to the Indianapolis office of the

Equal Employment Opportunity Commission

("EEOC") in order to file charges of

sexual discrimination against Rexnord.

Both Sessions’ and Marlin’s complaints

specifically named Tipmore as the

wrongdoer. Beside accompanying the pair,

Speedy also provided a statement to the

EEOC in support of Marlin’s charge. 

 Upon his return to Rexnord, Speedy

contends that he became the target of a

"campaign of retaliation," orchestrated

by Tipmore. This campaign, according to

Speedy, centered around Rexnord’s

attendance requirements and Speedy’s

repeated transgressions of those demands.

Rexnord’s attendance policy, known as

Rule 20, is a progressive disciplinary

program. Under the policy, an employee is

subject to discipline if he or she is

absent or tardy three times within a

thirty day calendar period (the "three in

thirty" rule). According to Rule 20, the

first time an employee violates the three

in thirty rule, he or she receives a

documented verbal warning. For the second

transgression, the employee receives a
written warning; for the third, a

suspension; and for the fourth,

termination. Under the collective

bargaining agreement, certain absences,

such as those for jury duty, those for

funeral leave, and those covered under

the Family and Medical Leave Act are

excused and are not counted against the

employee.

 Speedy’s first contravention of the

three in thirty rule occurred in July and

August of 1995, when he was absent three

times, and tardy twice. As per Rule 20,

Speedy received a documented verbal

warning. Following the warning, Speedy

abided by the policy until July and

August of 1996, when he was again absent

three times and tardy twice. As a result,

Tipmore reprimanded Speedy with a written

warning on August 13, and informed Speedy

that any further violation could result

in a three-day suspension. Speedy

received that suspension in October of

1996--the month following his visit to

the EEOC--when Speedy violated the three

in thirty rule for a third time. Along

with the three-day suspension, Speedy

received a second verbal warning,

apprising him that any additional policy

infraction could result in his

termination. While it was within

Tipmore’s discretion to waive the

suspension days, Tipmore, citing Speedy’s

refusal to commit towards an improvement

in attendance, refused to do so.

According to Speedy, upon his return from

suspension, Tipmore informed him that

"his days were numbered," and that

Tipmore would have his job. Thereafter,

on December 12, 1996, Speedy returned to

the EEOC office to file his own charge,

alleging that Tipmore was retaliating

against him for accompanying Sessions and

Marlin to file their EEOC complaints. 

 Less than two months after being

suspended, Speedy once more breached the

three in thirty rule. On January 28,

1997, Tipmore placed Speedy on terminal

suspension, the company’s final

disciplinary step prior to termination.

As was practice when an employee was put

on terminal suspension, Rexnord and Union

officials met to discuss the matter. At

the meeting, which was attended by, among

others, Speedy, Tipmore, and the director

of employee relations, Mark Sabatino,

Speedy refused to make any commitment to

improve his attendance. According to
Speedy, Sabatino agreed to give Speedy

"another chance" if Speedy agreed to drop

his pending EEOC complaint. While there

is no disagreement that at some point

during the meeting an agitated Speedy

told Sabatino to "just fire [him]," the

parties do present alternative

suggestions as to the impetus behind the

statement. On the one hand, Speedy argues

that his request to be terminated was in

response to Sabatino’s solicitation that

Speedy withdraw his EEOC complaint.

However, Rexnord counters that Speedy’s

statement was not prompted by any

specific comment by Sabatino, but rather

was a reflection of the attitude Speedy

had adopted towards the company and its

attendance requirements. Regardless of

Speedy’s motivations, Sabatino acquiesced

to Speedy’s request, informing the union

on January 30, 1997, that Speedy’s

terminal suspension would be converted to

a discharge. 

 Speedy filed suit in the District Court

for the Southern District of Indiana,

alleging that he was discharged from

employment in retaliation for having

engaged in conduct protected by Title

VII, in violation of 42 U.S.C. sec.

2000e-3(a). The case was tried before a

jury, which on January 26, 1997, returned

a special verdict. The jury unanimously

agreed that Speedy had proven by a

preponderance of the evidence that

Rexnord had terminated him in retaliation

for having filed and assisted in the

filing of charges with the EEOC. However,

the jury also found that Rexnord had

proven by a preponderance of the evidence

that the company would have terminated

Speedy because of attendance, regardless

of his engagement in protected

activities. After the verdict, Speedy

filed a motion for judgment as a matter

of law, arguing that Rexnord had failed

to present legally sufficient evidence to

allow its affirmative defense--that

Rexnord would have fired Speedy

regardless of any retaliatory motive--to

go to the jury. The district court denied

that motion and Speedy timely appealed.

In addition to challenging the district

court’s decision to deny his renewed

motion for judgment as a matter of law,

Speedy raises two additional contentions

on appeal. First, Speedy claims that the

district court erred in precluding

evidence that Speedy engaged in other

acts of opposition conduct protected by
Title VII. Second, Speedy also argues

that the district court erred in denying

his petition for attorney’s fees as a

prevailing party in a retaliation case.

II. DISCUSSION

A. Judgment as a Matter of Law on Retaliation

Claim

 Speedy’s primary contention on appeal is

that there was insufficient evidence to

support Rexnord’s "mixed-motive"

affirmative defense, and that thus the

district court erred in not granting

Speedy judgment as a matter of law on the

issue. We review a trial court’s grant or

denial of judgment as a matter of law

under Fed.R.Civ.P. 50 de novo. See Mathur

v. Board of Trustees of S. Ill. Univ.,

207 F.3d 938, 941 (7th Cir. 2000). Using

the same standard as that applied by the

district court, we limit our inquiry to

whether the evidence presented, combined

with all reasonable inferences

permissibly drawn therefrom, is

sufficient to support the verdict when

viewed in the light most favorable to the

party against whom the motion is

directed. See Emmel v. Coca-Cola Bottling

Co. of Chicago, 95 F.3d 627, 629-30 (7th

Cir. 1996). In so doing, "this court may

not step in and substitute its view of

the contested evidence for the jury’s."

Id. at 634. 

 In Price Waterhouse v. Hopkins, the

Supreme Court established the "mixedmotive" affirmative defense when it held

that "when a plaintiff in a Title VII

case proves that her [protected conduct]

played a motivating part in an employment

decision, the defendant may avoid a

finding of liability only by proving by a

preponderance of the evidence that it

would have made the same decision even if

it had not taken the plaintiff’s

[protected conduct] into account." 490

U.S. 228, 258 (1989). In response to the

decision, Congress enacted the Civil

Rights Act of 1991 "in part to overrule

the Supreme Court’s decision in Price

Waterhouse." McNutt v. Board of Trustees

of the Univ. of Ill., 141 F.3d 706, 707

(7th Cir. 1998). The Act rolled back the

Price Waterhouse holding in certain types

of discrimination cases by providing that

"an unlawful employment practice is

established when the complaining party

demonstrates that race, color, religion,

sex, or national origin was a motivating
factor for any employment practice, even

though other factors also motivated the

practice." 42 U.S.C. sec. 2000e-2(m).

However, as we noted in McNutt, absent

from that provision is a reference to

retaliation claims. See McNutt, 141 F.3d

at 707. Thus, we determined that within

the limited context of retaliation cases,

the rule of Price Waterhouse was still

applicable, and a defendant could

therefore continue to avoid liability by

proving by a preponderance of the

evidence that it would have made the same

employment decision even if it had not

taken plaintiff’s protected activity into

account. See id. at 707-09. 

 The continued viability of the mixedmotive affirmative defense in the arena

of retaliation cases being uncontested,

we now turn to examine the evidence

required to support the defense. In Price

Waterhouse, the Court remarked that "[a]s

to the employer’s proof, in most cases,

the employer should be able to present

some objective evidence as to its

probable decision in the absence of an

impermissible motive/1." Price

Waterhouse, 490 U.S. at 252. The Court

recognized that proving that the same

decision would have been justified absent

a retaliatory motive is not the same as

proving the same decision would have been

made absent the motive. Id. Thus, the

Court concluded that an employer could

not prevail in a mixed-motive case by

offering a legitimate reason for its

decision, if that legitimate reason did

not sufficiently motivate the employer at

the time of the decision. "The employer

instead must show that its legitimate

reason, standing alone, would have

induced it to make the same decision."

Id. 

 Speedy is quick to point out that the

only evidence that Rexnord presented in

support of its mixed-motive defense was

Mark Sabatino’s "naked allegation that he

would have made the same decision to fire

Speedy based on Speedy’s attendance."

Speedy suggests that such a conclusory,

self-serving statement is insufficient

evidence to allow a jury to find that

Rexnord would have fired Speedy absent

his engagement in protected activities.

Rather, Speedy claims that in order to

prevail on its affirmative defense,

Rexnord should have been required to
present evidence of similarly-situated

individuals who had not engaged in

protected activity who were treated

similarly to Speedy; namely, terminated.

Speedy posits that because Rexnord has

not come forth with evidence of employees

with similar attendance problems who had

not engaged in protected conduct and yet

were terminated, the district court

should have granted his motion for

judgment as a matter of law.

 We disagree with Speedy’s proposition

that comparative evidence is the type of

objective proof required for a jury to

accept a mixed-motive defense. The

Supreme Court in Price Waterhouse did not

specify that such evidence, the type

employed in McDonnell-Douglas analyses,

is indispensable and dispositive in

mixed-motive cases. Speedy has not

presented any case law, from this Circuit

or any other, that supports his position.

However, we do note that the Eighth

Circuit, when faced with a similar

argument, rejected the contention that

objective evidence for mixed-motive

purposes requires proof that similarlysituated individuals, not the target of a

Title VII violation, were treated

similarly. In Foster v. University of

Arkansas, the court stated that "[s]uch

evidence would have been appropriate and

helpful, but its absence does not mean

that we must overturn the jury’s verdict.

We must affirm unless reasonable persons

could not differ as to the conclusions to

be drawn from the evidence, when viewed

in the light most favorable to the

prevailing party." 938 F.2d 111, 114 (8th

Cir. 1991). We agree with the Eighth

Circuit’s approach, and find that

comparative evidence, though certainly

helpful, is not required under the Price

Waterhouse standard.

 Though Rexnord was not required to

provide comparative evidence, that does

not resolve whether the evidence it

presented was sufficient to allow the

mixed-motive defense to proceed to the

jury. We agree with Speedy that, based on

the plurality’s note in Price Waterhouse,

Sabatino’s lone statement that he would

have fired Speedy solely for absenteeism

is not sufficient objective proof for a

mixed-motive defense. See Price

Waterhouse, 490 U.S. at 252 n.14.

However, we believe that Sabatino’s

statement, when taken in conjunction with
the other evidence Rexnord provided, was

sufficient to allow a rational jury to

reach the conclusion that it did. See

Mathur, 207 F.3d at 941. 

 In support of its mixed-motive claim,

Rexnord presented undisputed evidence

that it had a progressive discipline

attendance policy in place for many

years./2 The final step of that policy

was terminal suspension, which after a

meeting with a union representative could

result in termination. Furthermore,

Rexnord provides, and Speedy does

notcontest, that his attendance record

warranted discharge pursuant to Rexnord’s

policy. The company presented a list of

fifty-five employees who had been

disciplined for attendance problems, in

order to show that Rule 20 was actually

enforced. Furthermore, Rexnord presented

evidence of four employees who had

reached the terminal suspension stage,

but who, pursuant to last-chance

agreements, were allowed to return to

work./3 

 Aside from Sabatino’s testimony and

evidence of Rexnord’s attendance policy

(and its application), there is a

temporal factor germane to the mixedmotive defense. In Davidson v. Midelfort

Clinic, Ltd., 133 F.3d 499, 512 (7th Cir.

1998), we noted that relevant to a

determination that the decision to

discharge an employee was not tainted by

discriminatory animus was the fact that

criticism of the employee on the

nondiscriminatory grounds was aired long

before the employee’s discharge.

Similarly, it is incontrovertible that

Speedy was disciplined, and half way

towards terminal suspension, at the time

the retaliatory motive first became a

plausible factor. While no single piece

of evidence presented conclusively

establishes that Rexnord would have fired

Speedy absent his having participated in

protected conduct under Title VII, we

believe that when taken together, along

with all reasonable inferences that can

be drawn from it, this evidence would

support a rational jury’s conclusion to

that effect. Thus, we hold that the

district court did not err in denying

Speedy’s motion for judgment as a matter

of law.

B. Exclusion of Evidence

 In the course of a pretrial conference,
Rexnord learned that Speedy intended to

introduce evidence at trial of complaints

by two other Rexnord employees--Angela

Self and Lisa Willoughby--against

Tipmore. Additionally, Rexnord learned

that Speedy endeavored to have admitted

certain letters and statements which

demonstrate that (1) Speedy had

confronted Tipmore regarding his

treatment of these individuals, and (2)

Speedy had met with Sabatino to discuss

Tipmore’s deportment in relation to these

women. The district court, in ruling on

Rexnord’s motion in limine, precluded

Speedy from introducing all such

evidence. In so deciding, the district

court undertook an analysis pursuant to

Fed.R.Evid. 403, and determined that any

probative value the evidence might

contain was substantially outweighed by

the danger of unfair prejudice.

Furthermore, the court noted that the

proposed evidence would only be relevant

in establishing that Rexnord had

retaliated against Speedy for opposing a

practice made unlawful by Title VII./4

Yet, Speedy never pled in his complaint,

referenced in his contentions, nor argued

on summary judgment that he had been

terminated for such a reason. Rather, in

his complaint and throughout the

pretrial, Speedy’s sole contention was

that he was discharged in retaliation for

his filing an EEOC complaint, and for

assisting Marlin and Sessions in filing

their EEOC complaints. Thus, the district

court stated that it would not allow

Speedy’s eleventh-hour additional theory

to be presented to the jury. Because the

case was not being presented to the jury

on that theory, the court held that

admission of the evidence would result in

confusion of the issues.

 Speedy bears a heavy burden in seeking

to have this Court overrule the district

court’s evidentiary decisions. Our

standard of review in determining whether

the district court committed reversible

error in either the admission or

exclusion of evidence is whether that

decision constituted an abuse of

discretion. See United States v. Smith,

230 F.3d 300, 307 (7th Cir. 2000); Geitz

v. Lindsey, 893 F.2d 148, 150 (7th Cir.

1990). As we have recognized, the "trial

court’s balancing of probative value and

unfair prejudice is highly discretionary

and its decision on admissibility will be

accorded great deference." Geitz, 893
F.2d at 150 (internal quotation marks and

citation omitted). Furthermore, "[n]o

error in either the admission or

exclusion of evidence . . . is ground for

granting a new trial or for setting aside

a verdict or for vacating, modifying, or

otherwise disturbing a judgment or order,

unless refusal to take such action

appears to the court inconsistent with

substantial justice." Fed.R. Civ.P. 61;

Palmquist v. Selvik, 111 F.3d 1332, 1339

(7th Cir. 1997). Thus, even if a trial

court’s ruling is determined to be

erroneous, the error may be deemed

harmless if the record indicates that the

same decision would have been rendered

irrespective of the error. See Barber v.

Ruth, 7 F.3d 636, 641 (7th Cir. 1993). 

 Prior to examining the propriety of the

district court’s decision to exclude the

evidence subject to Rule 403, we must

first determine the breadth of Speedy’s

complaint against Rexnord. While the

district court concluded that Speedy’s

case solely claimed retaliation for his

having engaged in protected activity,

Speedy suggests that this case has always

been one of "opposition conduct" as well,

and that the district court erroneously

created an artificial barrier between the

two types of conduct. Since Speedy’s

confronting of Tipmore in relation to

Self and Willoughby would be considered

opposition conduct, the probative value

is greatly affected by the backdrop

against which we evaluate the district

court’s 403 analysis of the evidence.

 Speedy is correct that our cases have

held that assisting another employee with

her discrimination claim is protected

opposition conduct. See McDonnell v.

Cisneros, 84 F.3d 256, 262 (7th Cir.

1996). Furthermore, Speedy rightly points

out that under the notice pleading

regime, a complaint need not recite every

element of a legal theory in order to

provide notice. See Scott v. City of

Chicago, 195 F.3d 950, 951 (7th Cir.

1999). However, we have never wavered

from the understanding that the federal

notice pleading requires the plaintiff to

set out in her complaint a short and

plain statement of the claim that will

provide the defendant with fair notice of

the claim. See Leatherman v. Tarrant

County Narcotics Intelligence &

Coordination Unit, 507 U.S. 163, 168

(1993). As Speedy notes in his brief,
Title VII does make a distinction between

conduct that constitutes opposition and

conduct that constitutes participation.

The statute plainly makes it unlawful to

discriminate against an individual

because he or she "has opposed any

practice made an unlawful employment

practice . . . or because he has made a

charge, testified, assisted, or

participated in any manner in an

investigation, proceeding or hearing." 42

U.S.C. sec. 2000e-3 (emphasis added).

While certain conduct may constitute both

opposition and participation, other

actions will only be considered

opposition or participation. 

 Speedy’s complaint provided Rexnord with

notice that he was alleging that the

company had retaliated against him for

participating in protected activity. As

for the protected activity, the complaint

specifically references Speedy’s actions

of assisting Sessions and Marlin in

advancing their EEOC charges. This put

Rexnord on notice that Speedy’s claim

could include any activity which would

fall under the participation provision of

sec. 2000e-3. Thus, even though the

complaint did not directly allege

retaliation for Speedy’s filing of his

own EEOC complaint, it was not error for

the court to allow the introduction of

that matter as part of Speedy’s case.

But, because Speedy had alleged

retaliation for participation in

protected activity, Rexnord limited its

inquiry to those incidents in which

actual grievances were filed./5 Thus,

it rightly considered the fact that

Tipmore harassed other female employees,

and that Speedy had confronted Tipmore

about his actions, as immaterial to the

retaliation suit it was facing. Cf. Kyle

v. Morton High School, 144 F.3d 448, 454

(7th Cir. 1998) (in First Amendment case,

plaintiff’s failure to indicate in

complaint what speech or conduct the

defendant had allegedly retaliated

against meant that defendant was not

sufficiently apprised of the gravamen of

plaintiff’s claim). Accordingly, the

district court correctly limited Speedy’s

claim to one of retaliation for

participation in protected Title VII

activities, and we must thus address the

district court’s Rule 403 decision in

that context.

 Turning to the materials excluded,
Speedy suggests that, in relation to a

participation claim, the evidence

wasprobative in that it would have

reduced the likelihood of the jury

finding that Rexnord would have fired

Speedy absent a retaliatory motive.

Specifically, Speedy claims that the

introduction of the evidence that

Sabatino was aware of Tipmore’s harassing

conduct would have cast doubt on his

credibility when he stated that he would

have dismissed Speedy solely for his

three in thirty rule violations. In

opposition, Rexnord posits that whatever

the remote probative value of the

evidence may have been, the introduction

of Tipmore’s conduct as it related to

Self and Willoughby was highly

prejudicial. Rexnord puts forth that had

the evidence been admitted, the jury

could easily have confused the issue of

whether Tipmore’s actions were improper

with the issue of whether Rexnord

retaliated against Speedy. 

 We find that the district court did not

abuse its discretion in excluding

evidence regarding Tipmore’s harassment

of Self and Willoughby, as well as

Sabatino’s knowledge of Tipmore’s

activities. The probative value of such

evidence was slight at best. Contrary to

Speedy’s assertion, the evidence does not

create any clearer picture of Tipmore’s

motive to retaliate against Speedy.

Furthermore, the jury was aware, through

evidence presented relating to Sessions

and Marlin, that Sabatino had knowledge

of Tipmore’s conduct as well as Speedy’s

confronting of Tipmore. However, the

evidence was highly prejudicial in that

it would have resulted in the

introduction of other complaints against

Tipmore as well as Rexnord’s attempts to

discipline Tipmore. The district court

was cognizant of the fact that the jury,

if faced with collateral evidence of

Tipmore’s wrongdoings and Rexnord’s

failed attempts to curtail those

inappropriate actions, might look beyond

the retaliation claim and find for Speedy

because of Rexnord’s blameworthiness in

relation to Tipmore. 

 As we stated above, despite evidence

that Sabatino was aware of Tipmore’s and

Speedy’s actions, the jury made a

credibility determination that Sabatino

would have terminated Speedy absent a

retaliatory motive. The introduction of
additional instances of Speedy engaging

in opposition conduct was irrelevant to

that credibility determination. Given the

deferential standard we employ when

reviewing evidentiary decisions, we find

that the district court did not commit

any error in excluding evidence which

would necessitate a remand of this

matter.

C. Attorney’s Fees

 Once the trial had been completed,

Speedy’s counsel petitioned the district

court for costs and attorney’s fees as a

prevailing party for purposes of Title

VII. The district court, citing our

decision in McNutt, denied Speedy’s

motion. In McNutt, as we noted above, we

examined the plain language of the Civil

Rights Act of 1991, and determined that

an employer’s showing that it would have

taken the same action even absent an

unlawful motive is a complete bar to a

plaintiff’s recovery on a claim of

retaliation, such that attorney’s fees

and costs are not recoverable. See

McNutt, 141 F.3d at 708-09. Specifically,

we observed that while 42 U.S.C. sec.

2000e-5(g)(2)(B)/6 does allow courts to

award injunctive relief, attorney’s fees,

and/or costs to parties proving mixedmotive discrimination under 42 U.S.C.

sec. 2000e-2(m), discrimination based on

retaliation is conspicuously absent from

the list of protected categories in sec.

2000e-2(m). Speedy suggests on appeal

that McNutt was incorrectly decided and

requests that this Court overrule the

holding of that decision. 

 In McNutt, we noted that there was a

certain allure to the argument that

Congress could not have intended to

change the mixed-motive standard for one

class of unlawful employment practices

while allowing the "but-for" rule of

Price Waterhouse to operate in

retaliation cases. However, we determined

that the logic of that position could not

"overcome the simple fact that the relief

McNutt sought . . . is not authorized by

the text of sec.2000e-5(g)(2)(B)."

McNutt, 141 F.3d at 709. In this appeal,

Speedy has merely rehashed the arguments

we rejected in McNutt, and has thus

failed to advance any rationale that

would warrant the reconsideration of our

previous decision. While we thus affirm

this decision of the district court, we
close by noting that since our decision

in McNutt, both the Eighth Circuit in

Norbeck v. Basin Electric Power

Cooperative, 215 F.3d 848 (8th Cir.

2000), and the Fourth Circuit in Kubicko

v. Ogden Logistics Services, 181 F.3d

544, 552 n.7 (4th Cir. 1999), have come

to similar resolutions on the issue.

 

III. CONCLUSION

 For the foregoing reasons, we Affirm the

decision of the district court.

/1 While Justice White’s concurrence suggests that

an employer’s credible statement that the same

action should have been taken for legitimate

reasons alone would be sufficient proof for a

mixed-motive affirmative defense, see Price

Waterhouse, 490 U.S. at 261, the plurality

opinion finds that suggestion "baffling," and

requires some additional measure of proof. See

id. at 252 n.14. 

/2 Speedy quarrels with the fact that, absent

Sabatino’s statement, the jury relied upon the

same evidence to reach what he believes are

antithetical conclusions: that Rexnord had

retaliated against Speedy, and that Rexnord would

have fired Speedy regardless of any retaliatory

motive. We disagree that the decisions are

contradictory, and furthermore note that any

contradiction does not alter the standard of

review. In this appeal, we examine whether the

district court correctly denied Speedy’s judgment

as a matter of law, and consequently whether a

rational jury could find that Rexnord would have

fired Speedy absent a retaliatory motive. We are

thus not concerned here with the jury’s first

finding of retaliation. 

/3 Rexnord utilizes last-chance agreements at the

terminal suspension stage. The customary practice

is that if (1) an employee or the union requests,

(2) there are mitigating circumstances, and (3)

there is a commitment on the part of the employee

to improve his or her attendance, then the

company will enter into such an agreement with

the employee, and allow that employee to return

to work. In Speedy’s case, no request for such an

agreement was made, and no commitment towards

increased attendance was evidenced.

/4 Title VII’s anti-retaliation provision protects

two types of activities, commonly referred to as

(1) opposition conduct, and (2) participation

conduct. According to the statute:

It shall be an unlawful employment practice for

an employer to discriminate against any of his
employees . . . because he has opposed any

practice 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. sec.

2000e-3 (emphasis added).

/5 For example, during Speedy’s deposition,

Rexnord’s attorney questioned him as to whether

he had "any personal knowledge of any one of the

people that you say discussed issues with them

and Mr. Tipmore filing a grievance, personal

knowledge of any grievance?" Rexnord’s attorney

then clarified the scope of his question by

stating "And again a grievance, we’re clear that

is a grievance form that you file . . .?"

/6 That section reads in relevant part:

On a claim in which an individual proves a

violation under section 2000e-2(m) of this title

and a respondent demonstrates that the respondent

would have taken the same action in the absence

of the impermissible motivating factor, the court

(i) may grant declaratory relief . . . and

attorney’s fees and costs demonstrated to be

directly attributable only to pursuit of a claim

under section 2000e-2(m) of this title.