For the second time in two weeks, the Seventh Circuit reverses summary judgment in a Title VII case where the employee alleged discriminatory discipline. The court finds that similar, if not identical, disciplinary violations were comparable enough to make out a prima facie case of discrimination. The court also reminds us of a simple, though easily-overlooked, principle: that a factual distinction proffered to defeat a "similarly situated" holding at the prima facie stage is immaterial if there is no evidence that the employer actually relied on that reason at the time decisions were made.
Eaton v. Indiana Department of Corrections, No. 10-3214 (7th Cir. Sept. 9, 2011): Eaton, a correctional officer, claims that she was terminated on account of sex. She suffered from a degenerative back condition that made long shifts and overtime difficult to manage, and she was accommodated for a while by being assigned control room duty. But in 2008, the tide turned:
"On March 12, 2008, Eaton was assigned to watch tour duty in Unit E-16, which she called 'the worst unit a correction[al] officer can work.' When Eaton repeatedly refused the E-16 assignment, stating both that she physically could not do the job and that it violated her medical restrictions, her supervisor, Lieutenant Bensheimer, asked for her belt and badge."
She was not permitted to return to work after that, despite making an effort to return to the next shift.
Eaton brought suit under Title VII, the ADA and the FMLA; lost all of the claims on summary judgment; and appealed only the Title VII claims. The district court held that Eaton failed to identify a similarly-situated, male employee who was treated better. Eaton had cited a male comparator named Curtis who had not been terminated under what she claimed to be similar circumstances.
The Seventh Circuit reverses. It begins by noting the curious fact that the prison shifted its story in the course of the litigation. It repeatedly argued in the district court that Eaton refused an assignment and quit, but argued "for the first time on appeal that it fired Eaton based on her disciplinary history and her refusal of an assignment, and further claims that differences between Eaton's and Curtis's disciplinary history prevent Curtis from being an appropriate comparator."
Curtis answered to the same lieutenant at Eaton, and like Eaton refused an assignment to a new unit. When asked to turn in his belt and badge, "Curtis became angry, told Bensheimer that he quit, and left the facility. Curtis returned to work about forty-five minutes later, and Bensheimer permitted him to return to his preferred assignment without any discipline." The Seventh Circuit held that the district court erred in crediting the prison's legal argument that the two situations were not comparable:
"While their situations are not identical, we cannot say that, as a matter of law, Eaton's conduct was more blameworthy than Curtis's. If anything, Eaton's conduct could be viewed as less deserving of termination, as she made clear that she did not want to quit and it is undisputed in this record that she refused the new assignment based on her physical limitations and medical restrictions."
Citing its prior decision, Humphries v. CBOCS West, Inc., 474 F.3d 387 (7th Cir. 2007), the panel holds that whether Curtis was comparable was for a jury to decide:
"Eaton's refusal of a work assignment was similar enough to Curtis's refusal that a reasonable factfinder could determine that they were similarly situated. As in Humphries, Eaton was not required to show that Curtis's refusal to work was identical to hers. See Humphries, 474 F.3d at 406. Eaton and Curtis both refused a work assignment from the same supervisor and left the facility. Both returned to work or attempted to return to work promptly or when instructed to do so by their supervisor. And as noted, Eaton's behavior reasonably could be viewed as less culpable than Curtis's. Under the flexible, common-sense standard described in Humphries, there is more than enough similarity on this point to allow the matter to proceed to a jury."
The district court also credited the prison's argument that Eaton had a past history of discipline for absenteeism, while Curtis did not. But the panel finds this distinction irrelevant where - as here - the employer did not actually weigh that factor at the time of the decisions:
"A characteristic that distinguishes two employees, regardless of its significance when objectively considered, does not render the employees non-comparable if the employer never considered that characteristic. The purpose of the similarly situated requirement is to provide a basis for a judgment about the fairness of the employer's decision. Factors never considered by the employer cannot provide any insight as to whether the employer's decision was motivated by discriminatory intent."
The Seventh Circuit remands the case with the issue of pretext unresolved. "Although the parties argue the issue of pretext, the district court did not decide that issue, and the record below - containing no evidence of who made the decision to terminate Eaton or why - does not permit the issue of pretext to be resolved by this court."