Jebari Craig v. Wrought Washer Manufacturing , Inc.

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-1821
J EBARI CRAIG ,
Plaintiff-Appellant,
v.
WROUGHT WASHER MANUFACTURING , INC.,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:19-cv-01786 — Brett H. Ludwig, Judge.
____________________
A RGUED J ANUARY 18, 2024 — D ECIDED J ULY 16, 2024
____________________
Before R IPPLE , BRENNAN, and SCUDDER , Circuit Judges.
R IPPLE , Circuit Judge. Jebari Craig worked for Wrought
Washer Manufacturing, Inc. (“Wrought”) from December
2010 until his termination in April 2019. He brought this Title
VII action alleging that Wrought retaliated against him for fil-
ing a racial discrimination grievance. The complaint identi-
fied three instances of retaliation, but this appeal concerns
only one of those claims: that he was unlawfully terminated
in retaliation for filing his racial discrimination grievance. The

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2 No. 23-1821
district court granted summary judgment to Wrought on that
claim. In doing so, the court relied on a contradictory declara-
tion submitted by Wrought, the moving party, but did not
consider a declaration submitted by Mr. Craig. For the rea-
sons set forth in the following opinion, we affirm the judg-
ment of the district court.
I
BACKGROUND
A.
Mr. Craig, who is black, worked at Wrought, a producer
of washers, nuts, and bolts, from 2010 until his termination in
2019. He began his employment in the general labor pool but
eventually worked his way up to a job in stamping. Through-
out Mr. Craig’s employment with Wrought, Paul Schaefer
was the plant manager.
Mr. Craig became the union president in 2018. In this role,
he negotiated the union’s contract with Wrought. During con-
tract negotiations in 2018, Mr. Craig expressed his concerns to
Schaefer about what he viewed as Wrought’s lack of minority
leadership. Earlier, in 2017, he had expressed his concerns
about racial discrimination at Wrought to Schaefer.
On November 28, 2018, Mr. Craig got into a disagreement
with a lead employee and a supervisor. This disagreement be-
came a “yelling match” and worked its way up the shop floor
and eventually to the front near Schaefer’s office.1 After
Schaefer and a union employee informed Mr. Craig that he
was in the wrong, Mr. Craig went back to the shop floor and
1 R.27 ¶ 27.

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No. 23-1821 3
began writing a union grievance. Later that same day,
Mr. Craig handed Schaefer a grievance alleging racial dis-
crimination based on Schaefer’s lack of response to
Mr. Craig’s concerns about racial disparities at Wrought.
Handing this grievance to Schaefer constituted the first step
of the union’s grievance process.
On December 3, Schaefer gave Mr. Craig a written warn-
ing for being loud and disruptive during the November 28
incident. Although Schaefer stated that Mr. Craig was “con-
sistently loud, disruptive,” and that “[t]hat was the way he
operated,” Mr. Craig had received no earlier discipline for his
behavior.2 Schaefer told Mr. Craig that Wrought “can’t have
this kind of behavior” and that he needed “to get something
on file” about the incident.3
Schaefer and Mr. Craig met in early January 2019 to dis-
cuss Mr. Craig’s allegations about the lack of minority leader-
ship at Wrought. During the meeting, Mr. Craig expressed his
concern that, compared to white employees, black employees
at Wrought received fewer training opportunities, had less
upward mobility, held inferior positions, and were subjected
to racial disparities in discipline. Wrought investigated
Mr. Craig’s allegations in the weeks after the meeting and de-
termined that Mr. Craig’s claims lacked merit. Schaefer
emailed Mr. Craig the investigation report’s results.
Events at Wrought escalated further in early-to-
mid-March. On March 7, Mr. Craig’s work supervisor, Jason
Jacobs, caught him using his cell phone while running his
2 R.24-1 at 29.
3 R.22-1 at 52.

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4 No. 23-1821
stamping machine. Wrought had a policy against its employ-
ees using cell phones while on the shop floor, and so Jacobs
verbally warned Mr. Craig to put away his phone. A few days
later, on March 11, Mr. Craig informed Schaefer that the un-
ion was formally requesting to move forward in the grievance
process. The next day, Jacobs saw Mr. Craig using his cell
phone three more times on the shop floor. The third time, he
reprimanded Mr. Craig. A terse exchange between the two
followed. Jacobs emailed Schaefer a report of the incident. In
the email, he reported that Mr. Craig had told him what he
was doing was none of his “[expletive deleted] business.”4
The following day, Schaefer and Wrought’s human re-
sources manager met with Mr. Craig to discuss his confronta-
tion with Jacobs. After hearing Mr. Craig’s version of the
story, Schaefer credited Jacobs’s version and suspended
Mr. Craig without pay, pending the results of an investigation
into whether Mr. Craig had violated any of Wrought’s poli-
cies. The investigation lasted fourteen working days. Partway
into the investigation, on March 26, Mr. Craig emailed
Schaefer’s supervisor and raised his concern that the length of
his suspension was in retaliation for his discrimination griev-
ance. He pointed out that the investigations into two white
employees who were suspended for insubordination each
lasted only one day.
On April 5, Schaefer called Mr. Craig to discuss his return
to work. Schaefer informed Mr. Craig he could return to work
if he signed Wrought’s “Last Chance Agreement.” By its
terms, the Last Chance Agreement permitted Mr. Craig to re-
turn to work if he agreed to abide by Wrought’s company
4 R.19-1.

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No. 23-1821 5
policies. Mr. Craig refused to sign the agreement, and
Wrought subsequently terminated him.
After his termination, Wrought offered Mr. Craig a sever-
ance agreement. But the severance agreement required
Mr. Craig to release his discrimination claims against
Wrought, and therefore he refused to sign it.
B.
Mr. Craig brought this action against Wrought in the
United States District Court for the Eastern District of Wiscon-
sin. His complaint set forth allegations that Wrought had vio-
lated Title VII of the Civil Rights Act of 1964 by retaliating
against him for filing a grievance. He identified three in-
stances of alleged retaliation: (1) his December written warn-
ing; (2) his March suspension; and (3) his April termination.
After the parties conducted discovery, Wrought moved
for summary judgment, which the district court granted in
part and denied in part. First, as to the written warning, the
court concluded that Mr. Craig had failed to establish his
prima facie case of retaliation because the warning did not
constitute an adverse employment action. Second, the court
reasoned that Mr. Craig’s claim regarding his March suspen-
sion should move forward to trial based on the suspicious
timing and length of the suspension.5 Third, and of prime im-
portance to this appeal, the district court granted summary
judgment to Wrought on Mr. Craig’s claim regarding his
April termination. Mr. Craig now appeals the judgment of the
5 The parties later filed a joint motion to dismiss this claim, which the dis-
trict court granted.

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6 No. 23-1821
district court as to his retaliation claim based on his termina-
tion.
II
DISCUSSION
We review the district court’s summary judgment ruling
de novo, construing the record in the light most favorable to
Mr. Craig. See James v. Hale, 959 F.3d 307, 314 (7th Cir. 2020).
To succeed on his Title VII claim relating to his termination,
Mr. Craig must show that he engaged in protected activity,
that he suffered an adverse employment action, and that a
causal connection exists between the two. See King v. Ford Mo-
tor Co., 872 F.3d 833, 841 (7th Cir. 2017). Only the third element
is in dispute, and whether Mr. Craig has satisfied that dis-
puted element turns on the contents of his April 5 telephone
conversation with Schaefer.
A.
In order to evaluate properly Mr. Craig’s argument on ap-
peal, we first must examine in some detail the facts surround-
ing the April 5 telephone conversation between Schaefer and
Mr. Craig. In that conversation, Schaefer offered Mr. Craig the
opportunity to return to work if he signed the Last Chance
Agreement. Mr. Craig refused to sign the agreement, and the
parties dispute the reason for his refusal. Wrought submits
that Mr. Craig refused to sign because the Last Chance Agree-
ment did not provide him with back pay for the fourteen days
of work he missed while on suspension; Mr. Craig contends
he refused to sign because Schaefer told him that the Last
Chance Agreement required him to give up his discrimina-
tion claims against Wrought. Because the district court agreed
with Mr. Craig that Wrought could not lawfully condition his

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No. 23-1821 7
continued employment on the sacrifice of his discrimination
claims, Mr. Craig’s termination claim hinged on the substance
of this phone conversation.
Prior to and at the beginning of this litigation, Mr. Craig
maintained that he refused to sign the Last Chance Agree-
ment because it did not provide for back pay for his fourteen-
day suspension. He had testified in an unemployment hear-
ing before an administrative law judge that he refused to sign
the agreement because it did not provide for back pay.6 His
complaint stated that he refused to sign the Last Chance
Agreement because it did not provide for back pay.7 And he
testified in his deposition that he refused to sign the agree-
ment because it did not provide for back pay.8
But Mr. Craig’s story changed after Schaefer’s deposition.
During that deposition, Schaefer stated that the Last Chance
Agreement “was a full and final settlement” that required
6 R.32-1 at 3 (“When I was offered [the Last Chance Agreement], I didn’t
– I couldn’t even accept them because they wasn’t willing to work with
me on getting me my backpay because they had me suspended for 15 days
before I even met with somebody after the initial meeting, and that’s not
protocol at all.”).
7 R.1 ¶ 5 (“The company offered … Craig a last chance agreement. The
agreement required Craig to accept fourteen days without pay. Craig
made a counteroffer that would have required the company to pay for the
days Craig had been suspended. The company rejected the counteroffer
and fired Craig on April 11, 2019.”); id. ¶ 22 (“While Craig was offered a
last chance agreement, the agreement required him to accept fourteen
days without pay.”).
8 R.22-1 at 82 (“I told them if – I would agree to sign [the Last Chance
Agreement] if they compensated me for my 14 days that I had missed. …
I didn’t say ‘no’ to their agreement. I said, ‘I will sign the agreement if y’all
pay me my backpay for my 14 days I missed.’”).

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8 No. 23-1821
Mr. Craig to relinquish his right to pursue his discrimination
and retaliation claims.9 But Schaefer also appeared to be con-
fused about the difference between the Last Chance Agree-
ment and the severance agreement; at one point he stated that
he was unfamiliar with the severance agreement offered to
Mr. Craig.10 The parties took a break, hoping to clear up some
of the confusion, but when the deposition resumed Schaefer
continued to testify that the Last Chance Agreement required
Mr. Craig to give up his discrimination claims.
After the deposition, Mr. Craig and Schaefer both filed
declarations. Mr. Craig’s declaration stated that the reason he
refused to sign the Last Chance Agreement was because the
agreement required him to release his discrimination claims
9 R.24-1 at 34. Later, when pressed by Mr. Craig’s counsel, Schaefer
acknowledged that the Last Chance Agreement did not contain such terms
but maintained that he had told Mr. Craig the agreement was a full and
final settlement:
COUNSEL: Now, earlier you had testified about something say-
ing this is a full and final agreement. Do you recall
that testimony?
S CHAEFER : Yes.
COUNSEL: Do you see that language in [the Last Chance Agree-
ment]?
S CHAEFER : I do not see those words in this document, no.
COUNSEL: But those were words that you used in the telephone
conversation with Mr. Craig?
S CHAEFER : They were, that’s correct.
Id. at 35.
10 Id. at 31 (“Yeah, yeah, I have not seen [the severance agreement] be-
fore.”).

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No. 23-1821 9
against Wrought.11 Schaefer’s declaration, on the other hand,
sought to modify his deposition testimony. Schaefer stated
that during his deposition, he confused the Last Chance
Agreement with the severance agreement, and that he did not
recall that the severance agreement was a separate document
until it was shown to him during his deposition.12 He clarified
that the severance agreement required Mr. Craig to release his
claims against Wrought but that the Last Chance Agreement
did not.13 He stated that he did not tell Mr. Craig that the Last
Chance Agreement had such a requirement.
11 R.23 ¶ 15 (“On April 5, 2019 Schaefer offered me a [Last Chance Agree-
ment]. During the conversation about the agreement, I told Schaefer that
I wanted to return to work but I was still going to pursue the race discrim-
ination grievance. I also told Schaefer that I had met with the U.S. Equal
Employment Opportunity Commission (‘EEOC’) and that I was going to
pursue discrimination and retaliation claims there as well. Schaefer told
me that I could not return to work if [I] continued to pursue any claims
against Wrought Washer. I told Schaefer that I would not give up my right
to do so. Schaefer told me I was fired.”).
12 R.31 ¶ 6 (“The severance agreement offered to Craig was a separate doc-
ument, which was offered to Craig after I terminated him. I did not recall
that at deposition, and confused the severance agreement with the ‘Last
Chance Agreement.’ I am not a lawyer, and these events are years-old at
this point. I simply did not recall the two separate documents, which is
why I did not even recall the separate severance agreement until it was
shown to me at deposition.”).
13 Id. ¶ 8 (“In retrospect, I was confused between the ‘Last Chance Agree-
ment’ and the severance agreement. I and the union representative con-
firmed Craig had to release claims as part of full and final settlement per
the offered severance agreement, not his ‘Last Chance Agreement.’ As the
‘Last Chance Agreement’ contains no such release, and is not a condition
of returning to work, neither I nor the union representative said that about
( … continued)

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10 No. 23-1821
In deciding Wrought’s motion for summary judgment as
to Mr. Craig’s termination claim, the district court considered
the chain of events we have just described. It then credited
Schaefer’s declaration testimony stating that the Last Chance
Agreement had not required Mr. Craig to give up his discrim-
ination claims. The court decided that Schaefer’s contrary
deposition testimony had been the product of confusion and
that Mr. Craig’s conduct throughout the litigation—most no-
tably not mentioning any requirement that the Last Chance
Agreement required him to give up his claims until after
Schaefer had mistakenly testified that it did—supported its
conclusion. The district court did not address specifically
Mr. Craig’s declaration but noted that “[n]o reasonable liti-
gant would have withheld this dispositive information.”
Craig v. Wrought Washer Mfg., Inc., No. 19-cv-01786, at *9 (E.D.
Wisc. Mar. 4, 2022).
To resolve Mr. Craig’s claim on appeal, we must decide
whether the district court treated appropriately the post-dep-
osition declarations submitted by Schaefer and Mr. Craig.14
Although we typically review evidentiary rulings, such as the
district court’s decision to strike an affidavit or declaration,
for abuse of discretion, see Buckner v. Sam’s Club, 75 F.3d 290,
the ‘Last Chance Agreement.’ The severance agreement contains such a
release.”).
14 Declarations are similar to affidavits but not sworn to “in the presence
of someone authorized to administer oaths.” Owens v. Hinsley, 635 F.3d
950, 954 (7th Cir. 2011). However, an unsworn declaration that satisfies the
requirements of 28 U.S.C. § 1746 “is equivalent to an affidavit for purposes
of summary judgment.” Id. at 955 (collecting cases). The parties raise no
issues before us about the form of the declarations.

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No. 23-1821 11
292 (7th Cir. 1996),15 in the sham affidavit context, once the
district court permits an affidavit or declaration, we often re-
view de novo its decision as to whether that affidavit or dec-
laration presents a genuine dispute of material fact preclud-
ing summary judgment, see Com. Underwriters Ins. Co. v. Aires
Env’t Servs., Ltd., 259 F.3d 792, 799 (7th Cir. 2001).16
Mr. Craig submits that the district court should have ap-
plied the so-called “sham affidavit rule” and rejected
Schaefer’s post-deposition declaration. In that declaration,
Schaefer maintained that, throughout his deposition (both be-
fore and after the break), he was confused about the respec-
tive conditions imposed by the Last Chance Agreement and
the severance agreement. Mr. Craig, however, contends that
Schaefer was not confused during his deposition. He argues
that the sham affidavit rule applies to bar Schaefer’s later dec-
laration and, therefore, that Schaefer’s original deposition tes-
timony should control.
15 See also Clemons v. Wexford Health Sources, Inc., No. 23-1790, 2024 WL
3262726, at *3 (7th Cir. July 2, 2024); Dunn v. Menard, Inc., 880 F.3d 899, 912
(7th Cir. 2018); Fischer v. Avanade, Inc., 519 F.3d 393, 406 n.5 (7th Cir. 2008);
Kalis v. Colgate-Palmolive Co., 231 F.3d 1049, 1055–56 (7th Cir. 2000); Maldo-
nado v. U.S. Bank, 186 F.3d 759, 768 (7th Cir. 1999).
16 See also James v. Hale, 959 F.3d 307, 317 (7th Cir. 2020); United States v.
Funds in the Amount of $271,080, 816 F.3d 903, 907–08 (7th Cir. 2016); Russell
v. Acme-Evans Co., 51 F.3d 64, 67–68 (7th Cir. 1995); Adelman-Tremblay v.
Jewel Cos., Inc., 859 F.2d 517, 521 (7th Cir. 1988); Babrocky v. Jewel Food Co.,
773 F.2d 857, 862 (7th Cir. 1985).
Our colleagues in the District of Columbia Circuit have noted that ap-
plication of the sham affidavit rule is sometimes subject to de novo review
and sometimes reviewed for abuse of discretion. Galvin v. Eli Lilly & Co.,
488 F.3d 1026, 1030 n.* (D.C. Cir. 2007) (collecting cases).

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12 No. 23-1821
Contradictory post-deposition declarations usually come
before the district court when, faced with a summary judg-
ment motion, the nonmoving party seeks to create a genuine
issue of triable fact in order to resist successfully that motion.
In short, the party resisting the summary judgment motion
tenders a declaration functionally amending a deposition. See
Jiminez v. All American Rathskeller, Inc., 503 F.3d 247, 253 (3d
Cir. 2007). Courts understandably have assessed such a ma-
neuver with a skeptical eye. The sham affidavit rule, as its
name indicates, “permits a judge to disregard a ‘sham’ affida-
vit—typically an affidavit that contradicts prior deposition
testimony.” James, 959 F.3d at 315. The rule prevents a non-
moving party from creating an issue of fact by submitting a
contradictory affidavit. Dunn v. Menard, 880 F.3d 899, 910 (7th
Cir. 2018). We have recognized, nevertheless, three exceptions
to this rule. James, 959 F.3d at 317. We permit the considera-
tion of a contradictory post-deposition declaration when
(1) the affidavit contains newly discovered evidence; (2) the
original statement was demonstrably mistaken; or (3) the af-
fidavit clarifies ambiguous or confusing deposition testi-
mony. Id. If an affidavit falls into any of those three categories,
it may be considered. Id.
This case does not present the usual situation. Here,
Schaefer’s declaration was filed by the moving party rather
than the nonmoving party. The United States District Court
for the Northern District of Illinois noted the significance of
that difference recently:
It is unlikely that the sham affidavit rule can be
invoked against the moving party. … The sham
affidavit rule ensures that “a genuine issue of
material fact cannot be conjured [by the non-

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No. 23-1821 13
movant] out of nothing.” James, 959 F.3d at 316.
But when a movant submits contradictory evi-
dence, summary judgment is denied in the or-
dinary course based on the fact dispute inherent
in that evidence, without resort to the sham af-
fidavit rule.
Ludwig v. United States, 512 F. Supp. 3d 874, 878 (N.D. Ill. 2021)
(alteration in original). In Ludwig, the court recognized that
the Sixth Circuit had held that the sham affidavit rule plays
no effective role where the moving party files an allegedly con-
tradictory affidavit with his or her motion for summary judg-
ment. Id. (citing Reed v. City of Memphis, 735 F. App’x 192, 198
(6th Cir. 2018)).17
When confronted by a declaration tendered by the moving
party, we have refrained from taking a rigid approach and
have encouraged district courts to consider the totality of the
circumstances in evaluating the declaration of a moving
party. This cautious approach on our part simply recognizes
that the integrity of the deposition process requires, on occa-
sion, consideration of the filed declaration without the denial
of the underlying summary judgment motion. See Com. Un-
derwriters, 259 F.3d at 799 (affirming grant of summary judg-
ment and crediting moving party’s contradictory affidavit be-
cause deponent had been confused); Maldonado v. U.S. Bank,
186 F.3d 759, 769 (7th Cir. 1999) (concluding no abuse of dis-
cretion for district court to deny motion to strike moving
party’s supplemental affidavit and affirming grant of
17 This case is an unpublished disposition of the Sixth Circuit, and we
therefore consider it only as legal commentary and not case law worthy of
more deference.

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14 No. 23-1821
summary judgment). Our refusal to implement a categorical
rule that all declarations of a moving party must result always
in the denial of the underlying summary judgment motion
hardly signals that courts should accept such declarations un-
critically. To avoid abuse of the summary judgment process,
permitting such a declaration on the part of the moving party,
without the consequence of denying the pending summary
judgment motion, must be a practice utilized only when the
district court is convinced that the circumstances surrounding
the deposition make it clear that consideration of the declara-
tion is required to achieve clarity and accuracy. Here, the dis-
trict court carefully assessed Schaefer’s claim of confusion. It
then wrote:
Schaefer’s deposition testimony was demon-
strably the product of confusion. He accurately
described the provisions of the “Severance
Agreement” but misattributed them to the “Last
Chance Agreement.” It is hardly extraordinary
that someone with no background in contract
law would mistake the former for the latter, es-
pecially considering that the two documents
were issued only weeks apart, over a year prior
to the deposition.
That Schaefer’s testimony was mistaken is sup-
ported by Craig’s conduct of this litigation. Had
Schaefer actually offered this blatantly unlawful
ultimatum, Craig might have thought that wor-
thy of inclusion in his complaint, testimony be-
fore the administrative law judge, or deposition
transcript. Yet in all three, Craig testified only
that he refused to sign the “Last Chance

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No. 23-1821 15
Agreement” because it required him to forfeit
14 days of backpay. It was only after Schaefer’s
deposition that Craig advantageously “re-
called” that the “Last Chance Agreement”—in
addition to the “Severance Agreement”—re-
quired him to release his race discrimination
claims. No reasonable litigant would have with-
held this dispositive information pending his
adversary’s unprompted confession.
Craig, No. 19-cv-01786, at *9 (internal citations omitted).
The district court acted prudently. Schaefer was demon-
strably confused during his deposition, and his later declara-
tion does not preclude a grant of summary judgment to
Wrought. The district court committed no error in its consid-
eration of his declaration.
B.
We now consider Mr. Craig’s declaration. The district
court did not believe that this declaration presented a genuine
issue of material fact which precluded summary judgment. It
reasoned that, if events had occurred as set forth in
Mr. Craig’s declaration, he would not have waited until after
Schaefer’s deposition to provide this information to the dis-
trict court. We agree. As the district court explained, Mr. Craig
testified at three different points in time that he refused to sign
the Last Chance Agreement because it did not provide for
back pay. He was adamant that he “would agree to sign it if
they compensated me for my 14 days that I had missed.”18
And he never mentioned that the Last Chance Agreement
18 R.22-1 at 82.

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16 No. 23-1821
required him to relinquish his claims until after Schaefer’s
deposition, when he “advantageously ‘recalled,’” Craig, No.
19-cv-01786, at *9, such a requirement. Put another way, when
viewing the record as a whole, a rational trier of fact could not
find for Mr. Craig on this issue. See Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). See also Kel-
ley v. Stevanovich, 40 F.4th 779, 787 (7th Cir. 2022) (affirming
district court’s decision to assign little weight to “weak affida-
vit”).
Conclusion
The judgment of the district court is affirmed.
AFFIRMED

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