Awok Ani -Deng v. Jeffboat, LLC

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-2155
A WOK A NI -DENG,
Plaintiff-Appellant,
v.
JEFFBOAT, LLC,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, New Albany Division.
No. 4:12-cv-00084-SEB-TAB — Sarah Evans Barker, Judge.
____________________
A RGUED J ANUARY 7, 2015 — DECIDED J ANUARY 27, 2015
____________________
Before WOOD, Chief Judge, and POSNER and E ASTERBROOK,
Circuit Judges.
POSNER , Circuit Judge. The plaintiff filed a scattershot of
discrimination and related claims against her former em-
ployer, Jeffboat (a division of American Commercial Lines),
the nation’s largest inland shipbuilder and second-largest
manufacturer of barges. The district judge dismissed all the
claims, some on the pleadings and the rest on summary
judgment.

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2 No. 14-2155
A woman of Sudanese extraction, the plaintiff worked in
Jeffboat’s shipyard in Jeffersonville, Indiana as a welder
from January 2006 until she was laid off in October 2011. She
had been until late in her employment by Jeffboat a welder
first class. Welders first class do the most difficult—and
dangerous—welding jobs, such as overhead welding and
welding in confined spaces. Welders second class do less
demanding and safer welding jobs, and there are also weld-
ers third class, who do even less demanding jobs. In a two-
week period in June 2011, the plaintiff, who had on 12 previ-
ous occasions sought first aid for work-related injuries, ex-
perienced two more such incidents, becoming dizzy and
nauseous while welding in confined spaces. At the end of
the month Jeffboat demoted her to welder third class. (Ac-
cording to the collective bargaining agreement between
Jeffboat and the union that represented the plaintiff, at the
time the plaintiff was demoted a welder first class received
$21.10 per hour while a welder third class received $15.69
per hour.) The plaintiff claims that the company demoted
her in retaliation for her having complained to the EEOC the
previous February that the company was discriminating
against her because of her sex and national origin.
She was laid off in October 2011, but the layoff was part
of a general reduction in force based on seniority and in Jan-
uary 2012 the company notified her by certified mail that she
was being recalled—she hadn’t enough seniority to avoid
the reduction but she had enough to be among the laid-off
workers who were recalled. The letter stated that if she
wanted to return to work she had to notify the company by
3:30 p.m. on a date in January that was five working days
after the letter was mailed. She failed to reply within the
deadline. However, on 6:00 p.m. on that fifth day her hus-

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No. 14-2155 3
band called the company to report that his wife did want to
return to work. But the company had closed for business at
3:30, so he was able only to leave a voicemail.
Jeffboat is unionized and its collective bargaining agree-
ment requires an employee, in order to secure his or her sen-
iority, to “report for work within five (5) working days after
being notified by certified letter to report.” The plaintiff’s
husband phoned the company on the fifth day, but because
the call was made after the close of business that day no one
in the company received timely notice. The company in-
formed the plaintiff that she’d missed the deadline and
therefore would not be recalled; her employment with
Jeffboat was over.
The plaintiff never received the certified recall letter that
noted the deadline, but only because, as she admitted, she
had failed to apprise the company that she had moved and
that therefore her address was no longer the address in the
company’s records. The union’s chief steward and an em-
ployee of Jeffboat’s human resources department twice
phoned her to remind her of the deadline (though no such
attempt to remind is required by the collective bargaining
agreement), but they were unable to reach her either time.
The chief steward called a third time, now using his personal
cell phone, but still failed to reach her. The chief steward
then tracked down the plaintiff’s husband, another Jeffboat
employee, on the shipyard premises, and told him of the
deadline, but as we said he failed to comply.
So far as appears, then, the plaintiff was demoted be-
cause of the company’s safety concerns, which seem entirely
legitimate given the dangerousness of the work and the in-
cidence of safety violations, which have included deaths, see

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4 No. 14-2155
OSHA Regulation News Release, Feb. 16, 2012,
www.osha.gov/pls/oshaweb/owadisp.show_document?p_ta
ble=NEWS_RELEASES&p_id=21831 (visited Jan. 26, 2015);
she was laid off as part of a general reduction in force; and
she would have been recalled if only she’d responded in
time to the recall notice—and there is no valid reason she
couldn’t have responded in time. She seems to think that no-
tice would have been timely had she or her husband left a
voicemail message with Jeffboat at one second before mid-
night on the fifth day. But that’s wrong because the compa-
ny would not have received meaningful timely notice. Nei-
ther did it receive such notice when the plaintiff’s husband
left a voicemail message two and a half hours after the office
that received the message had closed.
The only evidence of discrimination or retaliation against
the plaintiff is an affidavit by Evelyn Miller, a former em-
ployee of Jeffboat who was still employed by the company
when the plaintiff missed the recall deadline. In fact Miller
was the other party to the abortive phone calls placed by the
chief union steward. Miller’s affidavit states that the compa-
ny’s labor relations manager “would regularly manipulate
the workforce,” “would review the seniority list for the dif-
ferent classes of jobs in order to find ways in which to termi-
nate the employment of workers,” and had “searched for a
way to terminate the employment of” the plaintiff in stages,
first by demoting her from welder first class to welder third
class “for too many First Aid Visits,” which Miller calls “un-
usual and not a real reason to demote a worker at Jeffboat,”
the “real reason” being the plaintiff’s complaints “about how
she was treated as a woman, as an African and as a non-
English speaker by those who had supervision over her
work.” The affidavit goes on to state that many white and

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No. 14-2155 5
male welders first class also went to First Aid because of
overheating “yet, they experienced no demotion or reclassi-
fication,” and that anyway the overheating was Jeffboat’s
fault for failing to provide enough fans. And finally the affi-
davit asserts that the plaintiff was “laid-off in violation of
the CBA … in retaliation to her complaint to the EEOC and
other complaints.”
The affidavit was entitled to no weight, as it had no
foundation. “A [lay] witness may testify to a matter only if
evidence is introduced sufficient to support a finding that
the witness has personal knowledge of the matter,” Fed. R.
Evid. 602; United States v. Joy, 192 F.3d 761, 767 (7th Cir.
1999); Visser v. Packer Engineering Associates, Inc., 924 F.2d
655, 659–60 (7th Cir. 1991) (en banc), though personal
knowledge can include inferences, id.; Gustovich v. AT&T
Communications, Inc., 972 F.2d 845, 849–50 (7th Cir. 1992) (per
curiam)—most of our personal knowledge is inferential. The
affidavit itself could have contained the requisite evidence,
since it is under oath. Had Miller’s affidavit stated for exam-
ple that she had overheard a company official say that he’d
get the plaintiff fired because she was foreign, the affidavit,
or at least that part of it, would have been admissible. But
without such first-hand evidence in the affidavit itself—and
there wasn’t any—Miller needed discovery to establish the
admissibility of the assertions in the affidavit. The plaintiff’s
lawyer inexcusably failed to conduct the necessary discov-
ery. His discovery requests for pertinent company records
missed the district court’s discovery deadline. If it’s true as
Miller’s affidavit states that the plaintiff’s numerous “First
Aid Visits” were attributable to the company’s failure to
provide enough fans, one would expect complaints to have

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6 No. 14-2155
been made by the welders to the union and by the union to
OSHA. Discovery would have revealed such complaints.
The statement in the affidavit that “too many First Aid
Visits” are not a “real reason” why a welder is demoted is
hardly credible, since a high accident rate would get Jeffboat
into trouble with OSHA; but in any event the affidavit does
not indicate how a human resources officer would know the
“real reason” for demotion of a welder with injury problems.
The affidavit fails also to indicate what basis the affiant had
for thinking that white welders and male welders (white or
black?) who made many First Aid Visits because of over-
heating were not punished by being demoted, or how the
affiant learned that the company’s labor relations manager
was trying to fire the plaintiff in stages—did he tell the affi-
ant that? Did she overhear him tell someone else? There is
no evidence to suggest that Miller had personal knowledge
of the manager’s supposed scheming.
As for the charge that the plaintiff’s supervisors mistreat-
ed her because of her sex, African origin, and language diffi-
culties, Miller’s affidavit should have named the alleged
miscreants or at least provided some basis for identifying
them. And contrary to another assertion in Miller’s affidavit,
it is apparent that the plaintiff does speak English, albeit not
as well as a native English speaker. The chief union steward
and Miller would have spoken to her in English had they
reached her on the phone, and even her lawyer at oral ar-
gument acknowledged that she speaks “limited” English.
Although her first deposition was conducted through an in-
terpreter, confirming that she has difficulty with English, at
her second deposition she appears to have understood most

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No. 14-2155 7
of the questions, which were in English, though at times she
relied on an interpreter.
Without the affidavit, the plaintiff had nothing. The dis-
trict judge was therefore on sound ground in dismissing her
suit.
A FFIRMED.

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