Marcial Avila worked for Jostens, Inc., a yearbook publisher, in its Topeka, Kansas, facility from 1995 until September 2003. His duties included counting yearbooks, packing them into boxes, and printing and affixing shipping labels. He is a legal resident of the United States but was born in Mexico and spoke Spanish as his primary language.
In February 2003, Avila’s supervisor, Jim Keeffe, issued him a warning for boxing 900 calendars without drilling a top hole in them as required. A few months later, in May, Avila received another warning, this time for failing to do quality checks on a shipment, kicking boxes, and glaring at a coworker. Avila disputed the allegations in the warning, so a meeting was held with Avila, his interpreter, Keeffe, a Jostens employee relations representative, and a union rep. During the meeting, Keeffe told Avila’s interpreter to be quiet and told Avila to “speak American.”