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 "mixed-
motive" 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 mixed-
motive 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 similarly-
situated 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 mixed-
motive 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 mixed-
motive 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.
