FOR THE SEVENTH CIRCUIT No. 12-1855 EMILIO …...UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT No. 12-1855 EMILIO MARTINO, )) Appeal from the United States District Court

UNITED STATES COURT OF APPEALSFOR THE SEVENTH CIRCUIT

No. 12-1855

EMILIO MARTINO, )) Appeal from the United States District Court

Plaintiff-Appellant, ) for the Northern District of Indiana)

v. ) Case No. 3:08-CV-308)

WESTERN & SOUTHERN ) Honorable Theresa L. SpringmannFINANCIAL GROUP, ) United States District Judge

)Defendant-Appellee. )

AMENDED BRIEF AND SHORT APPENDIX OFPLAINTIFF-APPELLANT EMILIO MARTINO

Peter J. Agostino (10765-71)Email: [email protected], AGOSTINO & KELLER, P.C.131 South Taylor StreetSouth Bend, Indiana 46601Phone: (574) 288-1510Fax: (574) 288-1650

Attorney for Plaintiff-Appellant,Emilio Martino

Case: 12-1855 Document: 25-1 Filed: 07/20/2012 Pages: 44

APPELLANT’S CIRCUIT RULE 26.1 DISCLOSURE STATEMENT

Appellate Court No. 12-1855

Short Caption: Martino v. Western & Southern Financial Group

(1) The full name of every party that the attorney represents in the case:

Emilio Martino

(2) The names of all law firms whose partners or associates have appeared forthe party in the case (including proceedings in the district court or before anadministrative agency) or are expected to appear for the party in this court:

Anderson, Agostino & Keller, P.C.

(3) If the party is a corporation:

(i) Identify all its parent corporations, if any:

N/A

(ii) List any publicly held company that owns 10% or more of the party’sstock:

N/A

Attorney's Signature: Date: July 19, 2012

Attorney's Printed Name: Peter J. Agostino (10765-71)

Please indicate if you are Counsel of Record for the above listed parties pursuant toCircuit Rule 3(d). Yes X No ____

Address: 131 South Taylor StreetSouth Bend, Indiana 46601

Phone Number: (574) 288-1510 Fax Number: (574) 288-1650

E-Mail Address: [email protected]


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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

I. JURISDICTIONAL STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II. STATEMENT OF THE ISSUES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

III. STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

IV. STATEMENT OF THE FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

V. SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

VI. ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

A. Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19B. The District Court Erred in Granting Summary Judgment . . . . . . . 20

VII. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

APPELLANT’S REQUIRED SHORT APPENDIX . . . . . . . . . . . . . . . . . . . . . . . . . 40


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TABLE OF AUTHORITIES

Federal Cases Page

Aafco Heating & Air Conditioning Co. v. Northwest Publications, Inc., 162Ind.App. 671, 321 N.E.2d 580 (1974), cert. denied (1976), 424 U.S. 913,96 S.Ct. 1112, 47 L.Ed.2d 318 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Brewer v. Bd. of Trustees of the Univ. of Ill., 479 F.3d 908 (7th Cir.2007) . . . . . . 29

Coleman v. Donahue, 667 F.3d 835 (7 Cir. 2012) . . . . . . . . . . . . . . . . . . . . . . .th 22-26

Crawford v. Metropolitan Government of Nashville and Davidson County,Tennessee, 129 S.Ct. 846 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Eaton v. Indiana Dept. of Corrections, 657 F.3d 551 (7 Cir. 2011) . . . . . . . . . . .th 24

Elliott v. Roach (1980), Ind.App., 409 N.E.2d 661 . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Erdman v. White, 411 N.E.2d 653 (Ind.App 1980) . . . . . . . . . . . . . . . . . . . . . . . . . 34

Flowers v. Columbia College Chicago, 397 F.3d 532 (7 Cir. 2005) . . . . . . . . . . . .th 31

Gabe v. McGinnis (1879), 68 Ind. 538 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Garrison v. Burke, 165 F.3d 565 (7 Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . .th 19

Kelley v. Tanoos, 865 N.E.2d 593 (Ind.2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Monks v. Monks, 118 Ind. 238, 20 N.E. 744 (1888) . . . . . . . . . . . . . . . . . . . . . . . . . 34

Robinson v. PPG Industries, Inc., 23 F.3d 1159 (7 Cir. 1994) . . . . . . . . . . . . . . .th 20

Schandelmeier-Bartels v. Chicago Park District, 634 F.3d 372 (7 Cir. 2011) . . .th 28

Schmidt v. Methodist Hospital of Indiana, 89 F.3d 342 (7 Cir. 1996) . . . . . . . . .th 20

Serednyj v. Beverly Healthcare, LLC, 656 F.3d 540 (7 Cir. 2011) . . . . . . . . . . . .th 19

Spry v. Corum , 88 Ind.App. 122, 163 N.E. 526 (1928) . . . . . . . . . . . . . . . . . . . . . . 34

State v. Killigrew, 202 Ind. 397, 174 N.E. 808 (1931) . . . . . . . . . . . . . . . . . . . . . . . 34


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Staub v. Proctor Hospital, 131 S.Ct. 1186 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Trans World Airlines, Inc. v. Hardison, et al., 432 U.S. 63, 97 S.Ct. 2264(1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Williams v. Banning, 72 F.3d 552 (7th Cir.1995) . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Williams v. Tharp, 914 N.E.2d 756 (Ind. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Young v. Clegg, 93 Ind. 371 (1884) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Federal Statutes

28 U.S.C. §1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

28 U.S.C. §1367 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

28 U.S.C. §1441 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

42 U.S.C. §2000e . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2

8 U.S.C. §1324 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Indiana Statutes

I.C. §27-1-15.6-12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34, 35

I.C. §27-1-15.6-15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34, 35


This brief uses the following citation: “R.” means the record of proceedings1

reflected on the trial court’s CM/ECF docket sheet.

I. JURISDICTIONAL STATEMENT

District Court Jurisdiction

The district court had federal question subject matter jurisdiction of the case

pursuant to 28 U.S.C. §1331 based on Emilio Martino’s (“Martino”) claims of

discrimination under Title VII of the Civil Rights Act, 42 U.S.C. §2000e. The

district court exercised supplemental jurisdiction of Martino’s common law

defamation claim pursuant to 28 U.S.C. §1367.

On June 16, 2008, Martino filed an Amended Complaint in the St. Joseph

Superior Court. R.2. The Amended Complaint alleged that The Western &1

Southern Life Insurance Company (“Western & Southern”) had defamed him under

Indiana common law and had discriminated and retaliated against him under

Title VII of the Civil Rights Act, 42 U.S.C. §2000e. R.2, pp.4-6. On June 24, 2008,

Western & Southern timely filed a Notice of Removal of the case from the St.

Joseph Superior Court to the United States District Court, Northern District of

Indiana, South Bend Division, pursuant to 28 U.S.C. §1441(b) and 1331. R.3,

pp.1-2.

Appellate Jurisdiction

The Seventh Circuit has jurisdiction of this appeal pursuant to §§1291 and

1294(1).

On March 13, 2012, Judge Theresa L. Springmann entered an Opinion and

Order granting Western & Southern’s Motion for Summary Judgment. R 62. On the


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next day, March 14, 2012, Judgment was entered for Western & Southern and

against Martino. R.63. Martino timely filed his Notice of Appeal on April 9, 2012.

R.68. The appeal is from a final order that disposes all of Martino’s claims.

II. STATEMENT OF THE ISSUES

1. Whether the district court erred in granting summary judgment for

Western & Southern. R.62, p.28.

III. STATEMENT OF THE CASE

Nature of the Case

Martino brought this action pursuant to Title VII of the Civil Rights Act, 42

U.S.C. §2000e alleging that Western & Southern discriminated against him on the

basis of religion and retaliated against him because he exercised his rights under

Title VII. R.2, pp.5-6. Martino also alleged that Western & Southern defamed him

under Indiana common law. R.2, pp.4-5.

Course of Proceedings

On July 27, 2011, Western & Southern filed a motion for summary judgment.

R.54. The motion was accompanied by an appendix containing affidavits and

deposition excerpts, and a brief in support of the motion for summary judgment.

R.54-55. On August 29, 2011, Martino filed a response to Western & Southern’s

motion for summary judgment. R.58. On the same date, Martino also filed an


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appendix supporting his response. R.59. On September 15, 2011, Western &

Southern filed a reply to Martino’s Response. R.60.

Disposition in Court Below

On March 13, 2012, the judge entered an Opinion and Order granting

Western & Southern’s motion for summary judgment. R.62, p.28. The lower court

concluded that Martino’s religious discrimination claim could not survive summary

judgment because he had not submitted evidence sufficient to allow a reasonable

trier of fact to conclude that Western & Southern’s given reason for firing him was

untrue. Id., p.22. The court also concluded that Martino had not engaged in

statutorily protected activity and therefore there was no retaliation against him by

Western & Southern. Id., p.25. The court further decided that Martino had failed to

provide evidence supporting his defamation claim. Id., p.27. On March 14, 2012,

Judgment was entered for Western & Southern and against Martino. R.63. Martino

timely filed his Notice of Appeal on April 9, 2012. R.68.

IV. STATEMENT OF THE FACTS

Emilio Martino became a United States citizen in 1978, when he was 27

years old. R.59-1, Martino Aff. ¶4. For seven (7) years, he served as a police officer

with the South Bend Police Department. R.59-1, Martino Aff. ¶5. From 1988 to

1999, he worked as a successful salesperson for John Hancock Financial Services.

R.59-1, Martino Aff. ¶6. In 2000, Emilio Martino entered the Christian Ministry to

serve as a pastor of a church. R.59-1, Martino Aff., ¶6. In 2006, Martino was looking


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for other employment to supplement his income as a pastor. R.59-1, Martino Aff.,

¶7. In July of 2006, he was introduced to Andrew Sobol, the local district manager

for Western & Southern. R.59-1, Martino Aff., ¶8; R.59-21, Rembold Aff., ¶5.

Western & Southern is a Fortune 500 financial services company headquartered in

Cincinnati, Ohio. R.55-1, Skidmore Aff., ¶3. The Company conducts its sales

operations through sales offices, including a district office in Mishawaka, Indiana

(“Michiana office”). Id.

Martino informed Sobol he was looking for a job; they also talked about

Martino’s position as a pastor. R.59-1, Martino Aff., ¶8. Martino completed a

Western & Southern application on August 14, 2006. R.55-4, Martino Dep. pp.207-

214; R.55-6, Dep. Ex.14. The application explained that Western & Southern

complies with the Immigration Reform and Control Act of 1986 (“IRCA”) and would

require Plaintiff to produce documentation verifying his identity and work

authorization within three days of the commencement of his employment. Id. IRCA

requires every employee hired after November 6, 1986 to complete an I-9 Form and

submit documents to verify identity and eligibility to work in the United States. See

8 U.S.C. §1324a(b)(i).

Western & Southern hired Plaintiff to work as a Sales Representative

effective September 4, 2006, in the Michiana office, which was in Division H of

Western & Southern’s organization. R.55-9, Sobol Aff., ¶4; R.55-4, Martino Dep.

p.224-227; R.55-6, Dep. Ex.17. Western & Southern agreed to pay Plaintiff

according to a commission schedule, or at a minimum, pay him $500 a week during


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his 13-week training period and the 39-week validation period. R.55-4, Martino

Dep. p.227; R.55-6, Dep. Ex.17. Plaintiff’s commissions never exceeded $500, so he

received $500 each week he worked at Western & Southern. R.55-4, Martino Dep.

p.227.

After Martino had already started working, he was asked to sign a number of

documents, including a Sales Representative Agreement and insurance forms.

R.59-1, Martino Aff., ¶13. At the time he was presented documents to sign, he was

not told that he had to sign the documents in order to continue his employment.

R.59-1, Martino Aff., ¶14. He was not offered anything additional in exchange for

signing the documents; he was not given an opportunity to negotiate the terms of

the documents; he was simply told to fill out and sign the documents, which he did.

Id. Johnson confirms that the sales representative agreements are signed after

employees start. R.59-8, Johnson Dep. p.138. No additional consideration is paid to

employees for signing sales representative agreements after they have started

employment. R.59-8, Johnson Dep. p.139. Plaintiff does not claim anyone made

fraudulent representations about the Sales Representative Agreement. R.55-4,

Martino Dep. p.224-227, R.55-6, Dep Ex.17.

The Agreement contains a number of provisions limiting Plaintiff’s ability to

sue Western & Southern for actions arising out of his employment. R.55-4, Martino

Dep. p.224-227, R.55-6, Dep. Ex.17. Section III.C of the Agreement prohibits

Plaintiff from “commenc[ing] any action or suit relating to [his] employment with

Western & Southern more than six months after the date of termination of such


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employment,” and “waive[s] any statute of limitation to the contrary.” Id. Moreover,

in Section III.D, Plaintiff agreed “[n]ot to commence any action or suit against

Western & Southern by reason of its having furnished information to any

regulatory agency . . . regarding . . . the reason for termination of [his]

employment.” Id.

On September 18, 2006, a series of e-mails began between Martino, Sobol and

Erin Miller of Western Southern, concerning Martino’s position as a pastor. R.59-1,

p.3, Martino Aff., ¶24; R.59-1, p.14-27, Dep. Ex.4. Miller initially wrote to Martino

requesting information regarding his pastor position. R.59-1, pp.14-27, Martino Aff.,

Dep. Ex.4. On September 26, 2006, Miller followed up with Martino for information

on his position as pastor. Id. In the evening of September 26, 2006, Martino

responded with information on the hours and pay for the position. Id. On

September 27, 2006, Miller wrote to Martino telling him that his work as a pastor,

calling it a business venture, did not comply with company guidelines and told

Martino he must devote his entire time to business of Western & Southern and

terminate his outside business venture immediately. Id.

At this point, Martino’s supervisor, Andrew Sobol intervened and wrote to

Miller on September 27, 2006, criticizing Miller for referring to Martino’s work as a

pastor by using the term ‘personal business venture’; Sobol informed Miller that

Martino was engaged in community service work; stated that pastor work is the

epitome of community service and asked for clarification on company policy on


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community service. Id. Later that day, Miller responded to Sobol stating that

Martino’s situation is different because of time and money involved. Id.

On September 28, 2006, Sobol responded to Miller clarifying that the position

would require only 1-2 hours per week with the exception of Sunday and stating

that Martino would probably be willing to give up his salary. Id. On September 29,

2006, Miller responded by simply stating that the position was being denied

consistent with past practices regarding outside positions. Id. Sobol then replied

seeking clarification. Id. Miller responded, stating again that policy had not

changed and the pastoral position did not fit due to past practices. Id.

On October 4, 2006, Martino wrote directly to Erin Miller, asserting that it

was evident that the company had no intention of approving his pastoral position;

and asking for a specific response on his status with the company. Id. Miller

responded to Martino telling him he was not being terminated, but directing

Martino to terminate his public service position, stating it did not comply with

company policy. Id. She also copied Tarah Corlett with the email communications.

R.59-1, Martino Aff., Ex.4.

In the emails cited above, Miller did not explain how the pastor’s position

failed to fit the “Outside Positions Policy,” (R.59-5, Outside Position Policy), and

Miller failed to provide Martino the criteria for outside positions. Martino’s position

as a pastor fit squarely within the confines of the criteria; it did not interfere with

Martino’s work for Western & Southern; the position did not reflect poorly on

Western & Southern; the work hours could have easily been lowered to under six


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hours per week, not counting Sunday; and Martino was willing to give up his salary

as pastor. R.59-1, Martino Aff., ¶25.

Following the October 4, 2006, email from Miller which had also been copied

to Corlett, in which Martino was told to terminate his outside position, Martino

received a letter from Tarah Corlett dated October 9, 2006, in which he was told he

would be “placed on unpaid suspension from work” if he did not provide within five

days the required documentation to accompany his form I-9. R.59-1, Martino Aff.,

¶27; R.59-6, 10/09/06 letter. He was told to return documentation by October 13,

2006. Id. He was not told he would be terminated. Id. Corlett discussed the

suspension letter with Sobol before sending it. R.55-12, pp.17-20, Corlett Dep; R.55-

9, Sobol Aff. ¶12. Sobol asked if the Company could suspend Plaintiff indefinitely

while he tried to obtain the required documentation. Id. Corlett told Sobol that

Plaintiff could resign before the end of the five-day period, but Western & Southern

could not continue to employ him without a document verifying his employment

eligibility. Id.

Martino had been working on obtaining a duplicate social security card as his

original had been misplaced. R.59-1, Martino Aff., ¶28. On or about September 5,

2006, Plaintiff completed Section 1 of the I-9 Form and gave it to Maxine Edwards,

District Administrator in the Michiana office. R.55-4, Martino Dep. p.230-231; R.55-

5, Martino Dep. p.232; R.55-7, Dep. Ex.18. Plaintiff, however, could not produce any

document verifying his employment eligibility. Id. Instead, Plaintiff told Edwards

he was applying for a duplicate social security card, would search his mother’s


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house for his original card, and submit it as soon as he could. Id. Edwards attached

a note to the I-9 Form, explaining that Plaintiff was applying for a new social

security card because he did not have his card, and she would send the duplicate

card when she received it. Id. Tarah Corlett, the Human Resource Manager for

Division H, became aware of Plaintiff’s incomplete I-9 shortly after he submitted it.

R.55-11, Corlett Aff. ¶10.

Plaintiff could not locate his original social security card during his tenure at

Western & Southern. R.55-5, Martino Dep. 232-240; R.55-7, Dep. Ex.19 and 20.

Martino provided a receipt verifying his social security number from the Social

Security Administration. R.59-1, Martino Aff., ¶29; R.59-1, p.21, Dep. Ex.5. The

document provided by Martino contained the following line at the top of the page:

“REC 2006262 1309 H9D921EOO . . . .” R.59-1, Martino Aff., Ex.5. The document

was dated September 19, 2006, was issued from the Social Security Administration

(“SSA”) office in Elkhart and verified Plaintiff’s social security number (“SSN”) Id.

The SSN document Plaintiff received from the SSA also stated that “YOUR SOCIAL

SECURITY CARD IS THE OFFICIAL VERIFICATION OF YOUR SOCIAL SECURITY NUMBER.

THIS PRINTOUT DOES NOT VERIFY YOUR RIGHT TO WORK IN THE UNITED STATES.” Id.

(capitalization in original.)

Plaintiff also went to the South Bend SSA office on October 6, 2006, but was

told he could not apply for a replacement social security card because he did not

give the SSA documentation the SSA needed to show citizenship or lawful alien

status. R.55-5, Martino Dep. p.232-240; R.55-7, Dep. Ex.20. The SSA provided


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Plaintiff with a letter memorializing its determination, which Plaintiff gave to

Edwards or Sobol the same day he received them. Id. These visits to the SSA

revealed that Plaintiff needed to obtain evidence of his naturalization from the

Department of Homeland Security (“DHS”), which would take approximately 30 to

45 days. R.55-3, Martino Dep. p.117; R.55-5, Martino Dep. p.234. Plaintiff explained

this lengthy process to Sobol. R.55-9, Sobol Aff. ¶11; R.55-5, Martino Dep. p.239.

The Michiana office sent Plaintiff’s SSA letters to the Field Human Resource

Department. R.55-11, Corlett Aff. ¶11. Field Human Resources determined that

neither SSA letter was an acceptable receipt for the replacement of Plaintiff’s social

security card and did not apply the so called “receipt rule.” R.55-12, p.17-20, Corlett

Dep. The receipt rule is set forth in the instructions for completing the I-9 Form and

allows an employer a receipt in lieu of a social security card when the employee

applies for a replacement document, after which the employee has 90 days to

produce the document. See I-9 Form Instruction Sheet at USCIS.gov. Corlett

explained that neither letter looked like the social security card receipts Corlett had

encountered in the past, and the October 6, 2006 letter established that SSA could

not replace Plaintiff’s social security card until Plaintiff gave SSA documents

establishing his United States citizenship or lawful alien status. R.55-12, pp.17-20,

Corlett Dep.; R.55-11, Corlett Aff. ¶13.

Within a week of Corlett’s October 9 letter, Thomas Johnson sent a letter to

Martino on October 16, 2006, terminating his employment. R.59-7, 10/16/06 letter.


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Thomas Johnson was employed as the Director of Field Human Resource

Department from July 2002 until March 2011. R.55-10, Johnson Aff., ¶2. Field

Human Resources Managers reported to Johnson, R.59-8, Johnson Dep. p.11, ll.2-8,

and he reported to the Vice President of Human Resources. R.59-8, Johnson Dep.

p.11, ll.14-18. Both Corlett and Erin Miller reported to Johnson. R.59-8, Johnson

Dep. p.14, ll.7-10. Both James Hanseman and Corlett worked out of the same office

as Johnson. R.59-8, Johnson Dep. p.19, ll.10-14, as well as William Skidmore and

Keith Payne. Id.

Johnson’s office reviewed outside sales positions. R.59-8, Johnson Dep. p.105.

Johnson would be involved in job action decisions if there were issues with outside

sales positions. R.59-8, Johnson Dep. p.109. This role was similar to his role related

to termination based on I-9 violations. Id. Johnson had ultimate authority to

approve any requested outside position after conversation with Corlett, Hanseman,

Erin Miller and Cindy Williams. R.59-3, Def’s Ans. to Inter. No. 5. Corlett kept

Johnson apprised of developments relating to Martino. R.59-4, Def’s Ans. to Inter.

No.10.

Johnson was also involved in the work authorization issues for Martino.

R.59-8, Johnson Dep. p.110. Johnson made the recommendation to terminate

Martino. R.59-8, Johnson Dep. p.111, p.120, ll.7-10. When asked if he had a

discussion with Corlett, Sobol and Skidmore between October 9, 2006, and

October 16, 2006, regarding termination, Johnson responded: “I probably had a


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conversation with Tarah Corlett, not Mr. Sobol and not Mr. Skidmore.” R.59-8,

Johnson Dep. p.118, ll.4-10 (emphasis added).

Although Western & Southern did not approve Martino’s position as a

pastor, the company approved outside positions for agents operating various

businesses, including motorcycle repair, Avon sales, mortgage brokering, and a

management company, per a letter submitted to the EEOC by Alice FitzGerald

Senior Counsel for Western & Southern. R.59-20, 10/25/07 letter.

Likewise, in the very office where Martino worked, an agent hired to do the

same job Martino held, was approved to continue teaching music at Indiana

University at South Bend. R.59-1, Martino Aff. ¶26. Tim Snyder worked in the

Mishawaka office of Western & Southern; his hours of work and earnings exceeded

the outside policy limitations yet Western & Southern approved this non-religious

outside position. R.59-1, Martino Aff., ¶26; R.59-21, Rembold Aff., ¶5; R.59-22,

Snyder IUSB personnel file, redacted.

Although Western & Southern terminated Martino for not having proper I-9

documentation, it employed Michael Bacon who was an illegal alien. R.59-12, Bacon

Aff., ¶12. Michael Bacon was a Canadian who came to the United States on a

student visa, R.55-19, Bacon Dep. pp.9-10, and even though his work eligibility

expired in 2001, he continued to be employed by Western & Southern for over five

years. R.59-12, Bacon Aff., ¶12. Johnson was aware since 2006 that James

Hanseman, who reports to Johnson, began asking Michael Bacon for documentation

of authority to work in the United States as early as May of 2006. R.59-8, Johnson


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Dep. p.42, 89; R.55-19, Bacon Aff., ¶4. Johnson was also well aware that as early as

July 13, 2006, there were requests to Bacon for his documentation. R.59-16, Email

trail. Johnson knew as early as July 17, 2006, that Western & Southern employee

Henrietta Moore was seeking I-9 documentation from Bacon. R.59-8, Johnson Dep.

p.61. On July 24, 2006, Johnson was copied with another email from James

Hanseman to Tarah Corlett in which he learned that Bacon’s documentation issue

had not been resolved. R.59-8, Johnson Dep. p.65-66.

Tarah Corlett says in her Affidavit that she did not have any involvement

with Bacon’s I-9 status, R.59-14, Corlett Aff., ¶26, but in her deposition, she

explained that she learned about Bacon’s non-compliance when she asked Henrietta

Moore about open I-9 issues. R.55-12, p.10, Corlett Dep. She also confirmed that she

learned about Bacon’s I-9 problem in July of 2006. R.55-12, p.11, ll.13-15, Corlett

Dep. Johnson confirmed that Corlett was involved in the Bacon I-9 verification

issue, was copied on e-mails regarding the issue, made inquiries herself regarding

Bacon, received a response regarding her inquiry and acknowledged the response.

R.59-8, Johnson Dep. pp.64-65, 68. Johnson even explained why Corlett became

involved with respect to Bacon, R.59-8, Johnson Dep. p.69, all contrary to Corlett’s

affidavit statement that she had nothing to do with Bacon.

Johnson continued to get copied on communication regarding Bacon, and as

of July 31, 2006, he was aware that the issue had still not resolved. R.59-8, Johnson

Dep. p.72. On August 11, 2006, Johnson met Bacon for a second time. R.59-8,

Johnson Dep. p.48. At this time, Johnson told Bacon he needed to resolve the


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documentation issue, and gave him seven days from that point. R.59-8, Johnson

Dep. p.49. Despite this length of time, Johnson waited another two weeks before

confronting Bacon. On August 14, 2006, Johnson sent an email to Bacon, still not

terminating him. R.59-18, 08/14/06 email exchange.

In Martino’s case, he was not given any warning about being fired; Johnson

terminated Martino, but did not terminate Bacon. R.59-8, Johnson Dep. p.144.

Johnson states that Western & Southern “would allow sometimes some short

period of time to provide documentation. If that documentation could not be

provided, we would either, discontinue the employment process or terminate the

employment.” R.59-8, Johnson Dep. p.31 (emphasis added). Johnson says it was the

company’s policy, practice and process to correct I-9 matters within one or two

business days, R.59-8, Johnson Dep. p.33, and that he would not make an exception.

R59-8, Johnson Dep. p.34. He also testified that he would not involve the sales

group in I-9 verification issues. R.59-8, Johnson Dep. p.39.

Corlett offered that the Western & Southern’s practice was to have I-9 Forms

completed within three business days and, if not, to suspend for five days pending

resolution, and then termination if not resolved. R.55-12, p.12, Corlett Dep. Corlett,

however, could not explain why that practice was not followed with Bacon. R.55-12,

p.14, Corlett Dep. Nor did Corlett have any explanation as to why Bacon would

have been treated differently than Martino in terms of the time period he would

have to provide documentation to satisfy I-9. R.55-12, p.27, ll.3-8, Corlett Dep.


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On October 23, 2006, defendant wrote to the Indiana Department of

Insurance to report that Martino no longer represented Western & Southern. R.59-

17, 10/23/06 letter. The letter referenced Martino’s social security number and

enclosed Johnson’s termination letter which referred to the purported failure to

provide documentation of employment eligibility. Id.. This report was treated as a

complaint by the Department of Insurance, which then notified Martino by letter

dated November 6, 2006, to respond to the complaint. R.59-1, Martino Aff., ¶30;

R.59-1, p.22, Dep. Ex.6.

Johnson knew that the Enterprise Licensing Department (Brenda Feige)

would notify the state insurance departments when an employee was involuntarily

terminated; in fact, Johnson knew that a copy of his termination letter to Martino

would be forwarded to the licensing department by his subordinate, Erin Miller.

R.59-9, Johnson Aff., ¶11. At that point it was pre-determined that the letter would

make its way to the Indiana Department of Insurance, regardless of Elliott’s intent,

because she was only following company policy to forward it on after she received it.

R.59-15, Elliott Aff., ¶9.

Western & Southern contends that in 2006 it notified state insurance

departments of all Sales Representative involuntary terminations of employment.

R.55-13, Feige Aff. ¶4. Feige states that she, alone, decided to send this letter, and

she did so based solely on Western & Southern’s policy at the time. Id. The

Department investigated Feige’s letter to determine whether the SSN number

disclosed on Plaintiff’s insurance application was valid, but closed its investigation


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after confirming the SSN was valid. R.55-5, Martino Dep. pp.258-263, 285; R.55-8,

Dep. Ex.33.

Alice FitzGerald, a former Senior Counsel employed by Western & Southern,

and speaking on its behalf, has stated the following with respect to the October 23,

2006, Notice it sent to the Indiana Insurance Department regarding Martino’s

termination: “Sending such a notice to the state insurance department is standard

procedure when an individual leaves Western-Southern for any reason, voluntarily

or involuntarily.” R.59-20, 10/25/07, letter.

This statement by FitzGerald conflicts with the affidavit of Brenda Elliott,

which states such notifications occurred only for involuntary terminations. R.59-15,

Elliott Aff., ¶¶4 & 11). Moreover, whereas there was no requirement to report

Martino’s termination, there was a requirement to report Bacon’s illegal status in

connection with his resignation, but this did not occur. R.59-15, Elliott Aff.

On April 12, 2007, Martino filed a Charge of Discrimination with the South

Bend Human Rights Commission (“SBHRC”) within six months of his termination.

R.59-1, Martino Aff., ¶¶16-19; R.59-1, p.6, Dep. Ex.1. Prior to filing a Charge of

Discrimination, Martino met with an intake officer, Diana Moya, on April 5, 2007,

Moya told Martino he had plenty of time to file his Charge. R.59-1, Martino Aff.,

¶20. A copy of the EEOC documents Moya provided to Martino on April 5, 2007, are

attached as Exhibit 2 to his Affidavit. R.59-1, Martino Aff., ¶21.

These documents informed Martino that he could not file a lawsuit before

going to the EEOC with his charges. R.59-1, Martino Aff., ¶22. Martino was told by


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Moya that he should file his Charge within 180 days of his termination, and that he

could not file a lawsuit before receiving a right to sue letter. R.59-1, Martino Aff.,

¶23. After he filed his Charge, Martino received an enclosure from the EEOC which

stated as follows:

The purposes of a charge, taken on this form or otherwise reduced towriting . . . are, as applicable under the EEOC anti-discriminationstatutes (EEOC statutes), to preserve private suit rights under theEEOC statutes. . . .

R.59-1, Martino Aff., ¶23; R.59-1, p.13, Dep. Ex.3.

The first charge of discrimination was based on religion and national origin.

R.59-1, Martino Aff., Ex.1. In that charge, Martino alleges that he was terminated

for refusing to give up his outside position as a Pastor. In the second charge of

discrimination, Martino alleges discrimination based on retaliation. R.59-1, Martino

Aff., Ex.9. In his second amended complaint, Martino alleges, among other things,

that Western & Southern discriminated against him when it directed him to quit as

pastor, treated him differently than other employees because of his religion, and

terminated his employment. R.22, ¶22, Second Amended Complaint.

V. SUMMARY OF ARGUMENT

The plaintiff, Emilio Martino, is the victim of unlawful employment

discrimination resulting from the termination of his employment on the heels of his

request for accommodation and clarification on his outside position as a pastor of a

Baptist church.


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The district court erred in granting summary judgment. Specifically, the

court below erred by not concluding an employee who received favorable treatment

was not similarly situated with Martino. The court also erred by not applying the

cat’s paw theory to analyze the facts in the light most favorable to the plaintiff.

Under this approach, the court should have recognized the role played by a core

group of decision makers who ultimately terminated the plaintiff’s employment.

Within this core group, Thomas Johnson and Tarah Corlett played key roles in

causing plaintiff to lose his job.

While the district court cut to the chase in analyzing whether the proffered

reason for terminating the plaintiff was pre-textual, the district court erred by

failing to draw reasonable inferences in favor of the plaintiff. In particular, the

district court did not properly consider several facts and inferences which

established that there was a genuine issue of material fact as to whether defendant

would have actually terminated the plaintiff for failing to have his I-9

documentation in order, but for his request for accommodation for his religious

position. For example, the court below improperly discounted the fact that another

employee who had not sought any religious accommodation was allowed more time

to secure his documentation than plaintiff was, and was coached by defendant in

how to work his way around his I-9 problem. The court also failed to properly

consider the more favorable treatment given to other employees seeking

accommodations for positions other than religious, including one employee working

in the same office where plaintiff had worked. Furthermore, the court did not


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appreciate the importance of the 90 day time period which plaintiff should have

been allowed to provide his I-9 documentation. Thus, even though the employer

claims it terminated plaintiff because he did not comply with I-9 documentation

requirements, the employer did not have to terminate plaintiff for this reason, as it

claims; it should have allowed him 90 days to produce his documentation; and the

employer treated other similarly situated employees more favorably. The question

of pretext, therefore, should have been saved for a jury to consider.

With respect to the state law claim of defamation, the court erred in failing to

recognize that defamation per se, under Indiana law, can occur by implication.

Consequently, the court erroneously concluded that summary judgment was

appropriate on the defamation claim because the requirements of per quod

defamation could not be satisfied, even though the defamation in question was per

se.

VI. ARGUMENT

A. Standard of Review.

The district court’s grant of summary judgment for Western & Southern is

subject to de novo review. Serednyj v. Beverly Healthcare, LLC, 656 F.3d 540, 547

(7 Cir. 2011) (“The Court reviews de novo a district court’s grant of summaryth

judgment, viewing the facts and all reasonable inferences in the light most

favorable to the nonmoving party.”) De novo review is an independent examination

of the record to determine whether summary judgment was correct. Garrison v.


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Burke, 165 F.3d 565, 571 (7 Cir. 1999) (“We review the trial court’s summaryth

judgment decision de novo . . . , and in doing so we undertake an ‘independent

review of the record, . . . to see if the [summary judgment] decision was correct.’”)

This standard is applied with added rigor in employment discrimination cases.

Schmidt v. Methodist Hospital of Indiana, Inc., 89 F.3d 342, 344 (7 Cir. 1996) (“Weth

apply this standard with added rigor in employment discrimination cases, where

intent and credibility are crucial issues.”) The district court’s decision shall be

affirmed only if the defendant would have been entitled to a directed verdict.

Robinson v. PPG Industries, Inc., 23 F.3d 1159, 1162 (7 Cir. 1994) (“. . . [W]e willth

affirm the decision of the district court only if, had the record before that court been

the record of a complete trial, the defendant would have been entitled to a directed

verdict.”) Thus, this Court should review de novo the lower’s court’s granting of the

defendant’s motion for summary judgment. Schmidt v. Methodist Hospital of

Indiana, 89 F.3d 342, 344 (7 Cir. 1996).th

B. The District Court Erred in Granting Summary Judgment.

This case is, in its first instance, a case about discrimination on the basis of

religion. Martino alleged in his first charge of discrimination and in his second

amended complaint that Western Southern discriminated against him when it

terminated him after he refused to give up his outside position as pastor of a

church. It is Martino’s contention that but for the pursuit of his accommodation as a

pastor, he would not have been terminated, but rather left on unpaid leave until he

satisfied the documentation requirement for his form I-9. To satisfy his prima facie


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burden, Martino used the indirect method of proof by showing that two employees

who were not seeking religious accommodation, Michael Bacon and Tim Snyder,

were treated far more favorably than he was. Snyder was not asked to give up his

position as a music professor, even though it was in violation of company rules; and

Bacon was allowed significantly more time to produce his I-9 work authorization

documents. Bacon violated the same rule that Martino is accused of violating and

which was used as justification for his termination. Summary judgment should

have been denied because there are genuine issues of material fact as to whether

the employer’s reason for terminating Martino–failure to comply with I-9

documentation–was pre-textual.

Western Southern’s explanation for terminating Martino is fishy for several

reasons. First, even though one of the key players in Martino’s termination, Tarah

Corlett, knew about Martino’s I-9 compliance issue in early September, 2006, she

did not put Martino “under the gun” for submitting proof of work authorization

until she became aware that he was refusing to give up his position as a pastor. In

fact, it was on the heels of Martino’s email on October 4, 2006, in which Martino

took his stand on the matter, that Corlett next issued to him her October 9, 2006,

letter informing him of a suspension until he produced his proof. Second, Martino

produced what he considered to be a valid receipt for his social security card, thus

entitling him ninety (90) days to produce his social security card under the receipt

rule set forth in the I-9 instructions. Corlett claims the document Martino produced

was not a valid receipt; at a minium there is a genuine issue of material fact on this


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point, because if a valid receipt was produced, Martino did not have to be

terminated, undercutting the credibility of the proffered reason for termination.

Third, Western-Southern accommodated another comparable employee, Tim

Snyder, in a non-religious outside position as a part time music professor in a

position which clearly violated the company’s policy. And fourth, Western Southern

treated a comparable employee, Michael Bacon, much more favorably than Martino

with respect to the issue of I-9 documentation. Bacon, unlike Martino, did not seek

accommodation for an outside religious position.

1. The trial court erred in determining that Bacon was not

a comparable employee.

In analyzing whether the proffered reason for terminating plaintiff was pre-

textual, the district considered whether Bacon was similarly situated and

incorrectly concluded that he was not, and therefore, any material fact issue on the

favorable treatment of Bacon could not be used to cast doubt on the employer’s

explanation for terminating plaintiff. (Slip Op. at 19, appendix) The district court

erred by failing to use the analysis set forth in Coleman v. Donahue, 667 F.3d 835

(7 Cir. 2012) for determining whether Bacon was similarly situated, and if so, theth

impact of this on the issue of pre-text.

In Coleman, the Court dealt with a case involving the termination of a postal

worker who shared thoughts of killing her supervisor with her psychiatrist.

Coleman, 667 F.3d at 840-841. The plaintiff in Coleman was an African American

woman who alleged that her termination was discriminatory and retaliatory, and in


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support of her claim, she presented evidence that two white male employees who

had recently threatened another employee at knife-point received only a one week

suspension from the same manager who fired her. Coleman at 841. The district

court in Coleman like the district court in this case found the comparator employees

were not similarly situated.

Coleman is instructive on comparator evidence in employment discrimination

cases. The Coleman opinion reiterated that the similarly situated inquiry is flexible,

common-sense, and factual. Coleman at 841. Comparator evidence is also especially

relevant at the pretext stage. Id. After reviewing the factual background and taking

heed of caution by the Supreme Court on analyzing whether employees are

comparable, the Coleman court noted that whether a comparator is similarly

situated is usually a question for the fact-finder. Coleman at 846. The context of the

case determines the number of factors to consider, and usually there is a

requirement to show the same that the comparators dealt with the same supervisor,

were subject to the same standards, and engaged in similarly conduct without such

differentiating or mitigating circumstances as would distinguish their conduct or

the employer’s treatment of them. Coleman at 847.

In the present case, as in Coleman, the same decision makers were involved

with respect to Bacon and Martino. Johnson dealt with both Bacon and Martino, as

did Corlett.

In the present case, as in Coleman, the same standard of conduct applied to

both Bacon and Martino. The district court attempted to distinguish Bacon from


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Martino by pointing out that Bacon had worked for several years for defendant

whereas Martino was new hire, that people intervened to help Bacon, and that

Bacon intended to delay the process of his I-9 verification. (Slip Op at 19-20.) This

type of comparison, however, is inappropriate with respect to the facts of this case,

utilizing the analysis set forth in Coleman. As pointed out in Coleman, quality of

job performance cases are different than those involving violations of rules.

Coleman at 849. As in Coleman, the rule that is at issue in this case applied to

employees in all departments and of all ranks, and thus the issue is whether Bacon

and Martino were subject to the same standards of conduct, and of course they

were. Id. As pointed out in Coleman, citing Eaton v. Indiana Dept. of Corrections,

657 F.3d 551, 559 (7 Cir. 2011), “a characteristic that distinguishes two employees,th

regardless of its significance when objectively considered, does not render the

employees non-comparable if the employer never considered that characteristic. . . .”

Coleman at 50. In this case, Corlett could not explain why Bacon and Martino

would be treated any differently with respect to I-9 enforcement and there is no

evidence that Western Southern considered length of employment, friendships with

supervisors, or any other factor in determining whether they should enforce I-9

requirements.

The conduct supposedly justifying the termination of Martino was of

comparable seriousness to that involving Bacon (actually not as serious when

considering that Martino, unlike Bacon, did not commit perjury on his verification

form). In Coleman, the court pointed out that in disparate discipline cases,


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comparators must have engaged in similar, not identical, conduct. Coleman at 850.

It is interesting to note that the Coleman court also recognized requiring identical

offenses would result in a scenario where evidence of favorable treatment of an

employee who has committed a different but more serious, perhaps even criminal

offense, could never be relevant to prove discrimination. Coleman at 851. That is

precisely the scenario in this case, where Bacon, who lies, commits perjury, and is

non-compliant for several years on his I-9 documentation, gets favorable treatment,

compared to Martino, who gets terminated while he is actively pursuing a duplicate

of his misplaced social security card.

Under the facts of this case, as in Coleman, the court should conclude that

with respect to Bacon and Martino, the same decision makers were involved, the

same standards of conduct applied, and the conduct was of comparable seriousness.

Accordingly, Bacon was similarly situated. Since Bacon did not seek any religious

accommodation, and was treated more favorably, there is an inference of

discrimination making summary judgment inappropriate.

The Coleman case also explains the significance of the relationship between

the comparator and pretext and points out that selective enforcement of a rule calls

into question the veracity of an employer’s explanation and is evidence from which

a jury could rationally conclude that the legitimate reason offered by the employer

was a pretext for discharging the plaintiff. Coleman at 857.

2. The district court erred in finding that there was

insufficient evidence of pretext.


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In addition to the comparator evidence relating to Bacon, additional evidence

of pretext was presented to the district court which showed there is a material issue

of fact on the issue of pretext. As was the burden for the plaintiff in Coleman,

Martino had the burden of identifying weaknesses, implausibilities, inconsistencies,

and contradictions in the employer’s reason for termination such that a reasonable

person could find it unworthy of credence. Coleman at 852. As argued below, the

employer did not have to terminate Plaintiff, as it claims; the employer danced

around the effect of Martino not willing to give up his pastor’s position; the timing

of the suspension and termination on the heels of his stance was suspect; and the

favorable treatment of Bacon all combine to call into question the credibility of the

asserted reason for termination.

a. Receipt rule. Martino provided a receipt to Tarah Corlett with

respect to his social security number. As set forth in the instructions to the I-9

Form, Martino should have been afforded 90 days to produce the actual social

security card. Corlett was well aware of the 90 day receipt rule, but rejected what

Martino submitted because she claimed it was not what like other forms of receipt

she had seen. There is a genuine issue of material fact as to whether the form

Martino submitted constituted a receipt. The lettering “REC” appears in the top

line of the form and the form confirms that Plaintiff had been issued a social

security number. Here, the district court should have allowed for the inference that

Corlett did not follow the receipt rule because she, who was also familiar with the

outside position situation, wanted Martino gone. Application of the cat’s paw theory


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as discussed below would have allowed this to have been factored into the analysis.

When considered, it undermines the credibility of the reason give by defendant for

termination because the defendant did not have to terminate Plaintiff, like it

claims; it should have waited 90 days.

b. The dance around Martino’s refusal to give up his position as

pastor. Martino made it very clear that he was not going to give his position as a

pastor and wanted to know if his job was being terminated as a result. Instead of

working to accommodate his stance, Western Southern, through Corlett, shifted

gears and turned attention to his I-9 issue. Corlett, however, had been aware of the

I-9 issue since early September, 2006. She claims employees should be terminated

after 3 days if they fail to comply with producing the requested documentation yet

she took no action to address this matter until after Martino’s stance. It is

reasonable to infer that Western Southern was not going to provide Martino direct

evidence of religious discrimination by telling him it was terminating him for not

giving up his pastor’s position.

c. The timing of Corlett’s suspension letter is suspect. On

October 4, 2006, Corlett was made aware of Martino’s refusal to give up his pastor’s

position. On October 9, 2006, she gave Martino a notice of suspension. The notice

does not say he would be terminated, but he was terminated on October 16, 2006.

The timing is suspect because it happened on the heels of Martino’s expressed

refusal to quit as a pastor.


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d. Favorable Treatment of Bacon. As set forth above, the favorable

treatment of Bacon with respect to his I-9 documentation is relevant evidence on

the pretext issue. In connection with this, there is also the conflict between Corlett’s

deposition testimony and her affidavit on the point of whether she was involved in

Bacon’s situation. Both her deposition testimony and that of Johnson confirm she

was, but her affidavit contradicts this. This conflict gives rise to question Corlett’s

credibility.

3. The trial court erred by not using the cat’s paw theory of

liability.

While the court below concluded that there may have been an issue of

material fact regarding whether the denial of Martino’s outside position was based

on or constituted some evidence of bias against his religious practices on the part of

Western Southern, the court below did not believe that there was a sufficient link

between this showing and the adverse employment action. (Slip Op. at 15, Appendix

to Brief). The district court erroneously reached this conclusion because it did not

utilize the cat’s paw theory of liability to recognize that plaintiff could make the

link under that theory.

The Seventh Circuit approves the “cat’s paw” theory of liability, in which a

biased employee’s influence over a decision can infect the decision. Schandelmeier-

Bartels v. Chicago Park District, 634 F.3d 372, 380 (7 Cir. 2011). Courts, however,th

should not require too stringent a standard of proof for the cat’s paw theory. Id. The

Supreme Court approved the use of the “cat’s paw” theory in a USERRA case,


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holding that the non-decisionmaker’s bias or animus can impute liability for an

adverse employment action if it is a proximate cause of the ultimate action. Staub v.

Proctor Hospital, 131 S.Ct. 1186, 1194 (2011). The Supreme Court held that the

cat's paw theory applies as follows: if a supervisor performs an act motivated by [a

discriminatory or retaliatory] animus that is intended by the supervisor to cause an

adverse employment action, and if that act is a proximate cause of the ultimate

employment action, then the employer is liable. . . . Staub, 131 S.Ct. at 1194. Thus,

it is appropriate to impute discriminatory or retaliatory animus to a decision maker

when the party nominally responsible for a decision is, by virtue of her role in the

company, totally dependent on another employee to supply the information on

which to base that decision. Brewer v. Bd. of Trustees of the Univ. of Ill., 479 F.3d

908, 918 (7th Cir.2007).

Plaintiff attempted to use the cat’s paw theory of liability to show that the

decision to show how bias with respect to his outside religious position infected the

decision to terminate him, but the court below rejected this attempt. (Slip. Op. at

15, Appendix to Brief). This theory was applicable to this case because Corlett

knew about Martino’s I-9 issues before she knew about his outside position issues;

she took no action on the I-9 issues until she became aware of Martino’s stance on

not giving up his position as a pastor; her notice of suspension came on the heels of

her learning of Martino’s refusal to quit as a pastor; Johnson spoke with Corlett

before deciding to terminate Martino; both Johnson and Corlett were familiar with

Bacon’s I-9 situation; Corlett should have allowed Martino 90 days to submit his


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social security card under the receipt rule; and Corlett could not explain why

Bacon’s was treated more favorably. In determining the applicability of the cat’s

paw theory, the district court did not fully consider the role of Corlett, intertwined

with that of Johnson, in terminating Martino so quickly after he held firm in

keeping his religious position.

Title VII is written in terms of what the employer is prohibited from doing: it

is unlawful “for an employer—(1) to fail or refuse to hire or to discharge any

individual . . . because of such individual's race, color, religion, sex, or national

origin.” 42 U.S.C. §2000e–2(a). The focus is on the employer entity as a whole, not

on individual managers or supervisors, who are not individually liable for an

employer's violations of federal discrimination statutes. See, e.g., Williams v.

Banning, 72 F.3d 552, 553–54 (7th Cir.1995). This approach makes application of

the cat’s paw theory particularly relevant to the facts of this case. The district court

should have applied this theory to the facts of this case to conclude that there was a

genuine issue of material facts as to whether the decision to terminate Martino was

infected by the bias against his religious position.

4. Religious Accommodation and Protected Activity

Analysis.

Under 42 U.S.C. §2000e(j), the term “religion” includes all aspects of religious

observance and practice, as well as belief, unless an employer demonstrates that he

is unable to reasonably accommodate to an employee’s or prospective employee’s

religious observance or practice without undue hardship on the conduct of the


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employer’s business. The intent and effect of this definition was to make it an

unlawful employment practice under section 703(a)(1) for an employer not to make

reasonable accommodations, short of undue hardship, for the religious practices of

his employees and prospective employees. Trans World Airlines, Inc. v. Hardison, et

al., 432 U.S. 63, 97 S.Ct. 2264, 2271-72 (1977). An employer has a statutory

obligation to make reasonable accommodation for the religious observances of its

employees. Id.; Flowers v. Columbia College Chicago, 397 F.3d 532, 534 (7 Cir.th

2005). Title VII also makes it unlawful for an employer to discriminate against any

employee because he has opposed any practice made unlawful by Title VII. 42

U.S.C. Sec. 2000e-3(a). The term “oppose” as used in this statute carries its ordinary

meaning, including to resist, or antagonize; to contend against; to confront; resist;

withstand. Crawford v. Metropolitan Government of Nashville and Davidson

County, Tennessee, 129 S.Ct. 846, 850 (2009).

Martino was seeking accommodation based on religion. Martino’s position as

a pastor fit squarely within the confines of the criteria disclosed after his

termination. There was no suggestion that the pastor’s position would interfere

with Martino’s work for Western-Southern; certainly, the position would not reflect

poorly on Western-Southern; Sobol had indicated in his email of September 28,

2006, that the work hours were 1-2 hours per week, not counting Sunday and

Martino was willing to give up salary as pastor. Thus, as of September 28, 2006,

Western-Southern was provided information that clearly showed that the pastor’s

position met the criteria for outside positions. Miller deliberately failed to produce


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this criteria, despite efforts by Sobol and Martino to get clarification. It is also

difficult to understand how the company approved other outside positions for

agents, but not for Martino, with the only real difference being that he was seeking

accommodation for a religious position.

There is a difference between what activity is protected, for the purposes of

religious discrimination, and what activity is protected for the purposes of

retaliation. It appears that the trial court’s analysis was unduly focused on the

retaliation aspect at the expense of overlooking a significant aspect of plaintiff’s

case–that failure to accommodate, including termination of an employee who seeks

accommodation, can be unlawful discrimination on its own, in violation of Title VII,

regardless of any retaliatory feature of such conduct. This, in part, was undoubtedly

due to use of the term “retaliatory” by plaintiff’s counsel in describing the failure to

accommodate plaintiff and the ultimate termination. While such conduct did have a

retaliatory feature, it remains nevertheless discriminatory.

The same decision makers for plaintiff and his comparator employee were

aware that plaintiff was seeking religious accommodation and they did not provide

it, but they did provide accommodation for an outside position to someone who was

not seeking religious accommodation, Snyder. The same decision makers for

plaintiff and his comparator employee, Bacon, terminated the plaintiff, who sought

accommodation for his practice of religion, but did not terminate Bacon, who did not

seek religious accommodation.


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The string of emails discussing Martino’s position as a pastor shows that

Corlett and Miller, who work closely with Johnson, were well aware of the stand on

religion taken by Martino. The company approved other outside positions for

agents, but not for Martino, with the only real difference being that he was seeking

accommodation for a religious position.

5. The district court erred in treating the defamation as per

quod.

While defamation by implication is plaintiff’s theory, this does not mean that

the defamation claim is transformed into defamation per quod because the false

implication of criminal activity is not on the face of the letter submitted to the

Department of Insurance.

A false accusation of a crime is defamatory per se, whether by imputation or

on its face. Thus, the district court utilized the wrong analysis. In other words,

defamation by imputation does not automatically become defamation per quod. The

classification of the defamation as either per se or per quod depends on what is

being stated, and not whether it is by implication or expressly stated. The district

court appeared to have recognized this in its Opinion and Order of October 22, 2009.

R.35, pp. 10-13.

A communication is defamatory per se under well-settled common law

rulings if it imputes: 1) criminal conduct; 2) a loathsome disease; 3) misconduct in a

person's trade, profession, office, or occupation, or; 4) sexual misconduct.

Restatement (Second) of Torts §570 (1977); 18 I.L.E. Libel and Slander §21 (1959);


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Gabe v. McGinnis (1879), 68 Ind. 538. See also State v. Killigrew, 202 Ind. 397, 174

N.E. 808 (1931) (criminal conduct); Monks v. Monks, 118 Ind. 238, 20 N.E. 744

(1888) (loathsome disease); Young v. Clegg, 93 Ind. 371 (1884) (public office);

Erdman v. White, 411 N.E.2d 653 (Ind.App 1980) (profession or trade); Spry v.

Corum, 88 Ind.App. 122, 163 N.E. 526 (1928) (sexual misconduct). If a

communication is defamatory per se, the plaintiff is entitled to presumed damages

“as the natural and probable consequence” of the per se defamation. Elliott v. Roach

(1980), Ind.App., 409 N.E.2d 661, 683. The law presumes the plaintiff's reputation

has been damaged, and the jury may award a substantial sum for this presumed

harm, even without proof of actual harm. Id. (citing Aafco Heating & Air

Conditioning Co. v. Northwest Publications, Inc., 162 Ind.App. 671, 684 n.8, 321

N.E.2d 580, 589 n.8 (1974), cert. denied (1976), 424 U.S. 913, 96 S.Ct. 1112, 47

L.Ed.2d 318).

Pursuant to I.C. §27-1-15.6-15, which regulated the notification of

termination to the Indiana Department of Insurance, an insurer was to notify the

commissioner of the reason for termination if the reason is described in section 12 of

that statute, or the insurer had knowledge that the producer was found by a court,

a government body, or a self-regulatory organization authorized by law to have

engaged in any of the activities described in section 12 of the chapter. I.C. 27-1-

15.6-12 describes conduct which constitutes a violation which triggers a reporting

under section 15 of the chapter. By reporting Martino to the Indiana Insurance

Commissioner, Western & Southern implicated him as having violated I.C. 27-1-


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15.6-12, even though he had not violated the statute, and that is exactly how the

State reacted to the report. Martino received notification from an Indiana

Department of Insurance Consumer Protection Investigator that his insurance

license was in jeopardy of being suspended due to the false allegations filed by

Western & Southern.

In this case, the defamatory implication resulting from the notice to the

Department of Insurance was that Martino had committed a criminal act, or had

otherwise done something improper as a licensed insurance agent, triggering the

notice to the department. It is clear that imputation relating to criminal conduct or

trade or profession is defamatory per se. The district court’s analysis of defamation

per quod was therefore not on the mark.

Martino suffered humiliation and embarrassment as a result of having to

defend his license to the Indiana Insurance Commissioner based on a report that

never should have been made. R.59-2, Martino Dep. pp.314-317.

Western & Southern also sought protection of privilege with respect to the

letter. Although I.C. 27-1-15.6-12(d) provides for immunity in reporting if the report

is made in the absence of actual malice, there is no immunity if there is malice.

There was no need to have the letter sent to the Department of Insurance. Johnson

knew it would be sent and did nothing to stop it. If the report was done with actual

malice, the privilege under subdivision (1) of I.C. 27-1-15.6-15(d) does not apply.

Malice certainly can be inferred from the circumstances. Johnson could have simply

notified the department that Martino no longer worked for Western & Southern


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then there is the question of why no such letter was sent in connection with Bacon,

which also adds to the issue of pretext. Furthermore, there is the additional conflict

between FitzGerald and Feige with respect to when letters are issued. FitzGerald

said all terminations generate letters, whereas Feige said only involuntary

terminations do. This conflict again makes the employer’s explanation fishy and

suspect.

With respect to any privilege Johnson may claim, it is Martino’s position that

any privilege has been abused. When speaking of abuse, “the essence of the concept

is not the speaker's spite but his abuse of the privileged occasion by going beyond

the scope of the purposes for which privilege exists.” And “[u]nless only one

conclusion can be drawn from the evidence, the question of whether the privilege

has been abused is for the jury.” Kelley v. Tanoos, 865 N.E.2d 593, 601 (Ind.2007);

Williams v. Tharp, 914 N.E.2d 756, 762 (Ind. 2009). There are questions of fact with

respect to the privilege. Johnson clearly went beyond the bounds of what was

necessary. His letter could have simply stated that Martino was no longer an agent

with defendant; instead, his termination letter, in concert with the notice, imputed

criminal conduct to Martino. Because Johnson went beyond what was necessary,

there is a question of fact as to whether he abused any privilege.

VII. CONCLUSION

For these reasons, the Court should reverse the lower court’s grant of

summary judgment with instructions that further proceedings be had on Martino’s

claims for legal relief.


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Respectfully submitted,

ANDERSON, AGOSTINO & KELLER, P.C.

/s/ Peter J. AgostinoPeter J. Agostino (10765-71)ANDERSON AGOSTINO & KELLER, P.C.131 South Taylor StreetSouth Bend, Indiana 46601Telephone: (574) 288-1510Attorney for Plaintiff-Appellant,Emilio Martino

CERTIFICATE OF COMPLIANCE WITHTYPE-VOLUME LIMITATION, TYPEFACE

REQUIREMENTS AND TYPE STYLE REQUIREMENTS

1. This brief complies with the type-volume limitation of Fed. R. App.

P. 32(a)(7)(B) because this brief contains 9,387 words, excluding the parts of the

brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). In submitting this certificate, I

relied upon the word count of the word processing system (WordPerfect) that was

used to prepare this brief.

2. This brief complies with the typeface requirements of Fed. R. App.

P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this

brief has been prepared in a proportionally spaced typeface using WordPerfect 12 in

12-point, Century font.

/s/ Peter J. Agostino


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PROOF OF FILING AND SERVICE

I certify that, on _______________, 2012, the original and fifteen (15) copies of

the foregoing Amended Brief and Short Appendix of Plaintiff-Appellant, Emilio

Martino, were sent via FedEx (f/k/a Federal Express) to the Clerk of the United

States Court of Appeals for the Seventh Circuit, 219 South Dearborn Street, Room

2722, Chicago, Illinois 60604, and that two copies each were served on the following

counsel of record by United States Mail, postage prepaid:

Michael P. Palmer, Esq.BARNES & THORNBURG, LLP600 1 Source Bank Centerst

100 North Michigan StreetSouth Bend, Indiana 46601


CERTIFICATE OF COMPLIANCE WITH CIRCUIT RULE 30(d)

I certify that the attached Required Short Appendix contains all of the materials

required by Circuit Rule 30(a) and (b).



APPELLANT’S REQUIRED SHORT APPENDIX

TABLE OF CONTENTS

Document Description Page[District Court Docket No.]

Judgment in a Civil Case dated 3/14/12 [Doc. 63] . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Opinion and Order dated 3/13/12 [Doc. 62] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
































FOR THE SEVENTH CIRCUIT No. 12-1855 EMILIO …...UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT No. 12-1855 EMILIO MARTINO, )) Appeal from the United States District Court

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