February 8, 2016
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 13 C 8270- John
W. Darrah, Judge.
Posner, Easterbrook, and Hamilton, Circuit Judges.
Easterbrook, Circuit Judge.
Ortiz worked as a freight broker for Werner Enterprises,
Inc., for seven years until his discharge in 2012. Werner
says that it fired Ortiz for falsifying business records.
Ortiz says that Werner fired him because of his Mexican
ethnicity, and he sued Werner under 42 U.S.C. §1981 and
the Illinois Human Rights Act, 775 ILCS 5/1-101 to 5/10-104.
He also claimed that Werner subjected him to a hostile work
environment in violation of the state law.
is a shipping company that offers freight brokerage as one of
its services; customers pay a fee and Werner finds
transportation for their loads. Werner tracks its
customers' loads through a proprietary records system.
Loads that have not been matched with a carrier-a vehicle
hired to transport the load-appear in the system, and for
most of Ortiz's tenure at Werner any broker could locate
a carrier for any load. After securing carriers, brokers
update the system to confirm the transactions, the
carrier's prices, and who gets credit for the deal.
Werner's profit is the difference between what its
customer pays and what it pays the carrier. Some loads
produce a loss when the carrier charges more than the
customer's payment. Werner compensates its brokers
primarily through a base salary, but they can earn a
commission of up to 4% for months in which they generate more
than a specified profit. Ortiz usually received monthly
commissions of around $1, 000.
all brokers to book any load led to problems, as brokers
cherry-picked the nation's most profitable loads. In 2012
Werner addressed this by assigning each broker a specific
region. During Ortiz's final months with Werner the
regional broker bore responsibility for matching every load
in the region to a carrier whether the load would generate a
profit or a loss. But the system did not automatically assign
loads-brokers still needed to search for loads in their
region and update the records.
assigned Ortiz the West region, apparently not a lucrative
assignment during late spring when high demand for
transporting produce drives carriers' rates up. (The par-
ties don't explain why Werner failed to change its fees
to match predictable cycles in the business.) During the
first week of June 2012 Michael Krikava, the branch's
assistant manager, booked or directed another broker to book
six unprofitable loads in Ortiz's name. There was some
variation in how Ortiz's name wound up on each load:
Krikava booked several loads in his own name and swapped in
Ortiz's name after the loads had been picked up, but
others were booked early in the morning when Ortiz may have
been out of the office. Krikava did not notify Ortiz of any
of these losing transactions. By the time Ortiz realized that
he had been assigned responsibility for the loads, it was too
late for him to search for a cheaper carrier. Ortiz later
changed the records to reflect that he had not booked the
loads or to show lower rates that he thought the carriers had
agreed to charge. He then left for a planned vacation. On his
return Werner fired him. The parties agree on this much, but
here their stories diverge. We recount Ortiz's version,
because we must view the evidence in the light most favorable
to the party opposing a motion for summary judgment.
contends that brokers and managers always notified one
another when booking an unprofitable load in someone
else's name, and that it was atypical for someone else to
book so many unprofitable loads without so much as a courtesy
email or phone call. He adds that Krikava assigned him
unusually high losses. Ortiz repeatedly questioned Krikava
about the unprofitable loads but he refused to answer until
saying: "Why won't you just quit already?"
maintains that he updated three records to show that he had
spoken to the carriers, which had agreed to accept a lower
rate because they had not picked up the goods on time. Ortiz
adds that he often tried to negotiate a lower rate after a
late delivery and that carriers would sometimes oblige. Ortiz
says that this represents standard practice in the industry;
other brokers offered similar testimony.
justifies the removal of his name from three other loads with
evidence that the branch's managers permitted brokers to
delete their names from unprofitable loads. This practice
allowed Werner to satisfy the needs of all of its customers
without saddling brokers with undue losses, thus protecting
each broker's commission. Removing a broker's name
from a loss also moved the loss off the branch's books,
increasing the branch's profits and the managers'
bonuses, which are tied to branch performance. Other Werner
brokers testified that this was called "spacing",
as in sending the record of the unprofitable load into
cyberspace. (The evidence does not reflect what division of
Werner ultimately bore the loss or how Werner reconciled its
books.) Because spacing was common practice, Ortiz says, he
thought it permissible for him to remove his name from the
first morning back from vacation Ortiz met with Kip Lass, the
branch manager. Lass told Ortiz that he had been fired for
falsifying records. Ortiz argued that he had not falsified
records but had corrected them by providing the rate that the
tardy carriers had agreed to charge, and he offered to call
the carriers to provide proof. Lass showed no interest in
verifying Ortiz's allegations, noted "What's
done is done, " and discharged Ortiz without further
also tells us that Krikava and Lass subjected him to a
barrage of ethnic slurs. They frequently used epithets such
as "beaner, " "taco eater, "
"fucking beaner, " "taco, " "bean
eater/' "dumb Mexican/' "stupid Puerto
Rican, " "dumb Puerto Rican/' "fucking
Puerto Rican/' "Puerto Rican/' and "dumb
Jew" to refer to Ortiz. Ortiz contends that he
encountered such slurs throughout his tenure at Werner and
that they increased in frequency and intensity in the months
leading up to his discharge.
asserts that the office did not regularly notify brokers of
loads recorded under their names, and it contends that the
losses assigned to Ortiz were not unusually high. It insists
that its brokers do not have the authority to remove their
names from unprofitable loads without a manager's
permission. It also denies that it was customary to cut a
carrier's rate for a late delivery-even if the carrier
had consented to the lower rate. According to Werner, Ortiz
improperly edited these three records as well. Finally,
Werner denies that Lass and Krikava ever made derogatory
remarks to Ortiz. But on all of these issues we must look at
the evidence from Ortiz's perspective.
district court granted summary judgment to Werner. 2015 U.S.
Dist. Lexis 82952 (N.D. Ill. June 25, 2015). It dismissed
Ortiz's claim of a hostile work environment for failure
to exhaust his administrative remedies, a ruling Ortiz does
not contest on appeal. The judge looked at the evidence
through the "direct" and "indirect"
methods that courts often discuss in
employment-discrimination cases. See, e.g., Andrews v.
CBOCS West, Inc.,743 F.3d 230, 234 (7th Cir. 2014);
Zaderaka v. Illinois Human Rights Commission, 131
Ill.2d 172, 178-79 (1989). Admissions of culpability and
smoking-gun evidence were assigned to the "direct"
method (the judge found no such evidence), while suspicious
circumstances that might allow an inference ...