In the
United States Court of Appeals
For the Seventh Circuit

No. 99-4003

ALFREDO AVILES,

Plaintiff-Appellant,

v.

CORNELL FORGE COMPANY,

Defendant-Appellee.



Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 96 C 5989--Harry D. Leinenweber, Judge.


Argued November 2, 2000--Decided February 21, 2001




  Before HARLINGTON WOOD, JR., RIPPLE and ROVNER, Circuit
Judges.

  ROVNER, Circuit Judge. This is a successive
appeal of an employment discrimination case. The
plaintiff asks us to find that calling the police
to report that a disgruntled employee is waiting
outside the workplace and may be armed is an
adverse action as a matter of law. We decline the
plaintiff’s invitation because a truthful, non-
discriminatory report to the police should not
subject an employer to Title VII liability. We
therefore affirm the district court’s grant of a
directed verdict at the close of the plaintiff’s
evidence.

I.

  We will assume familiarity with our prior
opinion in this matter and will repeat only those
facts necessary to understand the issues
presented in this appeal. See Aviles v. Cornell
Forge Co., 183 F.3d 598 (7th Cir. 1999). Alfredo
Aviles sued his employer, Cornell Forge, claiming
that the company subjected him to a hostile work
environment based on his national origin. He also
claimed that Cornell Forge retaliated against him
for filing a hostile work environment claim. In
his complaint, Aviles alleged that shortly after
filing an EEOC charge against Cornell Forge, the
company suspended him for five days, and then
falsely told the local police that Aviles had
threatened his supervisor with a gun. According
to Aviles, as a result of this false report, the
police physically and emotionally harmed him
during their investigation. Aviles contended that
four police cars and six officers responded to
the call, and rousted him from his car with their
guns drawn, injuring him in a number of ways
before determining that he was, in fact, unarmed.
The district court originally granted summary
judgment in favor of the employer on both the
discrimination and retaliation claims, but for
the reasons stated in our earlier opinion, we
remanded the case for a trial on the retaliation
claim. We held that a false report to the police
that Aviles was armed and laying in wait outside
the plant could certainly be construed by the
fact-finder as a retaliatory action meant to
dissuade Aviles from pursuing his claim. We
therefore remanded the case for trial on the
claim that Cornell Forge retaliated against
Aviles by making a false police report.

  At trial, Aviles presented evidence that he
filed an EEOC claim, and that shortly thereafter,
he was suspended from his job. He refused to
leave the premises following the suspension and
told his supervisors that they could call the
police. One supervisor indeed called the police,
who escorted Aviles off the property and told him
not to return. Despite this warning, Aviles
returned to the area later, parking his car
approximately one and one half blocks from the
entrance to the plant. Although Aviles contended
that he returned only to pick up his paycheck, we
must take the facts as the district court found
them following Aviles’ presentation of evidence
at a bench trial. Not knowing that Aviles was
there for that alleged innocent purpose, someone
from the plant called the police again and
reported that Aviles was sitting in his car
outside the plant entrance. The officer taking
the call, knowing that an employee had been
removed from the plant under police escort
earlier that day, asked the caller if Aviles was
armed. The caller replied that he did not know if
Aviles was armed but that he might be. Based on
that conversation, the police approached Aviles
with a great display of force. Aviles testified
that in the ensuing altercation, the police
injured his arm, causing him pain. After the
police had removed Aviles from his car, the
dispatcher called the plant back and asked to
speak to the supervisor who was involved in
Aviles’ suspension. At that time, Aviles’
supervisor told the dispatcher that Aviles had
threatened in the past to kill himself and other
employees at the plant with a gun. There was no
evidence that the dispatcher passed this
statement on to the officers at the scene, and
Aviles presented no evidence that any of these
statements were false.

  At the close of Aviles’ evidence, Cornell Forge
moved for a directed verdict. The company argued
that Aviles failed to prove an adverse act by his
employer, and that he failed to establish a
causal link between the protected expression and
the adverse action. Cornell Forge also argued
that Aviles failed to establish any damages. The
district court granted the motion. The court
noted first that Aviles had presented no evidence
regarding who at Cornell Forge made the call to
the police that resulted in Aviles’ injuries. The
court found that the police dispatcher, not the
Cornell Forge caller, raised the issue of the
gun, and that there was no evidence that the
caller lied when stating he did not know whether
Aviles was armed but that he might be. The court
held that calling the police and making a
truthful report did not constitute an adverse
action. The court further found that Aviles
failed to prove a causal link between the
protected expression and the adverse action. In
particular, Aviles failed to show that the
employer could have anticipated a violent
response by the police, or that Aviles would
resist during the investigatory stop and thereby
be injured. The court therefore granted Cornell
Forge’s motion for a directed verdict. Aviles
appeals.

II.

  On appeal, Aviles contends that calling the
police and reporting that a disgruntled employee
is armed is an adverse action as a matter of law.
Aviles also complains that the district court sua
sponte asserted a legitimate reason for his
employer’s adverse act, even though the defendant
had not put on any evidence supporting the so-
called legitimate reason. Finally, Aviles claims
that he did in fact prove a causal connection
between the charge of discrimination and the call
to the police with evidence that his supervisor
said Aviles was "going to pay," and that he was
"going to get" Aviles.

  We review the district court’s grant of a
directed verdict under Federal Rule of Civil
Procedure 52. Subpart (c) of that rule provides
that, in a bench trial, once a party has been
fully heard on an issue, the "court may enter
judgment as a matter of law against that party
with respect to a claim or defense that cannot
under the controlling law be maintained or
defeated without a favorable finding on that
issue." The rule dictates that such a judgment be
supported by findings of fact and conclusions of
law as required under Subpart (a) of the same
rule. Subpart (a), in turn, specifies that these
findings of fact shall not be set aside unless
clearly erroneous, and due regard shall be given
to the opportunity of the trial court to judge
the credibility of the witnesses. The trial
judge’s statement of his findings of fact and
conclusions of law orally in open court following
the conclusion of Aviles’ evidence is sufficient
under the rule. We therefore review the district
court’s oral ruling for clear error.

  In order to make out a claim of retaliation
under Title VII, Aviles must prove that (1) he
engaged in statutorily protected expression; (2)
he suffered an adverse action by his employer;
and (3) there is a causal link between the
protected expression and the adverse action. Dey
v. Colt Construction & Development Co., 28 F.3d
1446, 1457 (7th Cir. 1994). Once a plaintiff
makes that showing, the burden of producing a
legitimate, nondiscriminatory reason for the
adverse action shifts to the employer. If the
employer is able to produce such a reason, the
burden shifts back to the plaintiff to show that
the employer’s proffered reason is pretextual and
that its actual reason is discriminatory. Dey, 28
F.3d at 1457. The district court found that
Aviles engaged in statutorily protected
expression when he filed an EEOC charge against
Cornell Forge, based on his claim of national
origin discrimination. The district court also
found that his employer was aware that Aviles had
filed this charge. Tr. at 295-96.

  But on the issue of adverse action, the
district court found Aviles’ proof lacking.
First, the court noted that the police were
called simply to remove Aviles, and that no
complaint was filed against him and he was not
arrested. Second, the court stated that any
injury to Aviles from the police was
unforeseeable to Cornell Forge because the
company had no reason to know that Aviles would
resist the police or that the police would
overreact in some way. The court found that the
actions taken by Cornell Forge were reasonable
under the circumstances. Third, and most
importantly for our analysis, the district court
found there was no evidence that Cornell Forge
lied to the police about whether Aviles was
armed. Rather, the only evidence on the issue of
whether Aviles had a gun was that the Cornell
Forge caller responded to a question from the
police dispatcher about whether Aviles was armed
by answering that he did not know but that he
might be. The court concluded, "So I think it was
reasonable for them to say the truth, which is
that they didn’t know whether he was armed or
not." Tr. at 298. The court further found that
even if calling the police was an adverse action,
Aviles failed to prove by a preponderance of the
evidence that the call was in retaliation for
filing the EEOC charge. Tr. at 298-99.

  We begin by addressing Aviles’ claim that
calling the police was an adverse action as a
matter of law. Aviles asserts that "[c]alling the
police on someone is always an adverse act."
Reply Brief at 4. Aviles argues that, although a
call to the police may be justified under some
circumstances, the mere act of making the call is
adverse. Aviles claims that because Cornell Forge
flatly denied making the call in pre-trial
proceedings, he approached trial with the
expectation that he would have to prove the
defendant made the call, and did not expect he
would also have to prove the falsity of the
charge made to the police. He contends that being
required to prove the falsity of the statements
made to the police in his case-in-chief is
tantamount to requiring him to rebut the
employer’s legitimate, non-discriminatory reason
for making the call before the employer has even
offered such a reason.

  Aviles has misapprehended our earlier opinion.
We held that a false report to the police that
Aviles was armed and laying in wait outside the
plant after threatening his supervisor could
certainly be construed as a retaliatory action
meant to dissuade Aviles from pursuing his EEOC
charge against the company. Aviles, 183 F.3d at
606. In so holding, we clarified that for a
current employee, the retaliatory action need not
be employment related. We did not go so far as to
conclude that a truthful report to the police
regarding an employee could be construed as an
adverse action. As a matter of common sense, such
a holding would be ill-advised. If an employer
had to face Title VII liability for truthfully
reporting to the police that a disgruntled
employee had threatened a supervisor and could be
armed, we might discourage employers from taking
the most prudent action to protect themselves and
others in the workplace. There is no evidence
here that the employer singled out a particular
ethnic group for its report to the police. Nor
did Aviles put on any evidence at all that the
report was false. Under these circumstances, we
agree with the district court that Aviles failed
to prove an adverse action by a preponderance of
the evidence. See also Berry v. Stevinson
Chevrolet, 74 F.3d 980, 982 (10th Cir. 1996)
(malicious prosecution may constitute adverse
employment action); Veprinsky v. Fluor Daniel,
Inc., 87 F.3d 881, 892 (7th Cir. 1996)
(collecting cases).

  Nor did the district court sua sponte supply a
legitimate reason for the employer’s action. The
district court stated that it was reasonable for
Cornell Forge to call the police under the
circumstances. This finding relates to whether
the action was adverse, not whether the employer
had a legitimate, non-discriminatory reason for
making the call. In essence, the district court
was stating that a truthful report to the police
is reasonable in the sense that it is not
adverse. The court also explained that whether
the call was reasonable was related to causation
and not to whether the employer had a legitimate,
non-discriminatory reason to make the call. The
court clarified this at the time of the motion
for a directed verdict. After the court stated
that no one could be faulted for concluding that
Aviles might be outside the plant in order to
retaliate against someone, Aviles’ counsel argued
that the court was supplying the employer with a
legitimate reason. The court replied, "No, I
think it’s whether there’s a causal connection.
I mean, was he there for his stated reason? I
mean, it’s for me to determine whether it’s more
probably true than not true, at least what they
thought he was there for." Tr. at 294-95. The
court went on to state that if the employer knew
Aviles was just there to pick up his check and
that he was unarmed, then there would be a basis
for finding that Cornell Forge retaliated against
Aviles. But the only evidence presented was that
the employer made a truthful report to the police
about Aviles, and that report was neither adverse
nor in retaliation for filing the EEOC charge. We
see no clear error in that conclusion.

  That leads us to Aviles’ last point, that he
proved a causal connection with evidence that
another employee heard his supervisor say that he
was going to get Aviles, and was going to make
him pay. The court’s rejection of this evidence
is just the kind of fact-finding to which we
defer on appeal because of the trial court’s
superior ability to judge the credibility of the
witnesses and the strength of the evidence
presented. We therefore affirm the district
court’s grant of a directed verdict in favor of
Cornell Forge and against Aviles.

AFFIRMED.
