In a case of allegedly racially-motivated discipline, where there is no direct or circumstantial evidence of racial animus, the issue of how similarly situated the disciplined employees were can be key to whether the claim survives summary judgment. The Seventh Circuit today holds that a district court in a Title VII case erred in holding that a supervisor cannot be comparable to a line employee for purposes of applying the McDonnell Douglas method of proof, vacating summary judgment and remanding the claim for trial.
Rodgers v. White, No. 10-3916 (7th Cir. Sept. 2, 2011): The panel summarizes the issue thus:
"Rodgers's primary argument on appeal is that he and two white coworkers engaged in the same alleged misconduct, yet his white counterparts were treated less harshly. Rodgers focuses on the coworker with the same job title, but the other white employee, Rodgers's immediate supervisor, is the better comparator. We have observed in many decisions that employees of differing ranks usually make poor comparators, but the rationale behind that general rule does not apply in this case."
Rodgers, described as the "only black employee in a crew of more than 27 lawn-maintenance workers" for the Illinois Secretary of State, was terminated for two alleged rule infractions: that he "(1) allowed abuse of state equipment and then failed to cooperate with the Inspector General's investigation, and (2) improperly recorded overtime and refused to assist her effort to rectify the problem." In both instances, though, Rodgers' supervisor Rusciolelli - who is white and who allegedly participated in the same activity, jointly with Rodgers - was spared; though Rusciolelli was eventually demoted to yard work, he was not fired. (Rodgers later successfully grieved the termination.) Rodgers sued the state under Title VII, and two individual managers (named Fitts and Roth) under sections 1981 and 1983.
The district court granted summary judgment, holding that
"Rodgers hadn't proven that white employees received systematically better treatment. In fact, the court said, Rodgers had not shown that any similarly situated white employee received better treatment than him. This failure alone, the court continued, doomed Rodgers's attempt to show discrimination using the indirect method established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)."
The district court held further that although Rodgers identified one other white co-worker (Deffenbaugh) as comparable with regard to the timekeeping issue, the same co-worker was not comparable with respect to the other ground for termination, i.e., allowing employees to borrow state landscaping equipment for private use.
The Seventh Circuit reverses, holding there was sufficient evidence under the McDonnell Douglas burden-shifting method of proof (in the Seventh Circuit, referred to as the "indirect" method) to present a genuine issue of fact on the merits. The panel notes that, for comparative purposes, a supervisor can be considered "comparable" under the Title VII indirect method (citations omitted):
"Many times we have acknowledged that supervisors usually make poor comparators for plaintiffs claiming employment discrimination. But usually does not mean always, and we have not held that a supervisor is never an apt comparator. Supervisors typically make unrealistic comparators because, as relevant to the issues in a particular case, employees of higher rank commonly have different job duties or performance standards. And especially in situations where the plaintiff alleges discriminatory promotional practices, it is difficult for the plaintiff to show that he deserved to be promoted over an employee of a higher rank, who usually possesses more experience. Yet when uneven discipline is the basis for a claim of discrimination, the most-relevant similarities are those between the employees' alleged misconduct, performance standards, and disciplining supervisor. Formal job titles and rank are not dispositive; an employer cannot 'insulate itself from claims of racial discrimination' by making formalistic distinctions between employees. Thus, when a plaintiff and his supervisor were accused of making similar mistakes, were equally responsible for avoiding those mistakes, and were disciplined by the same superior, the plaintiff can make a realistic comparison with his supervisor for purposes of establishing a prima facie case of discrimination."
The defendants, perhaps anticipating a loss on this issue, also argued that Rodgers' infractions were also more severe than Rusciolelli's, but the panel holds that "[e]mbracing this premise . . . would require us to disregard the evidence presented at summary judgment. Indeed, just reading the reasons Fitts and Roth gave for firing Rodgers is enough to dispel any notion that Rodgers was accused of more-serious shortcomings than Rusciolelli."
For instance, the panel notes, "The Inspector General's information [on the misuse of equipment] came from a single employee who accused both Rodgers and Rusciolelli of endorsing private use of state equipment, and both men denied the accusation." And on the timekeeping violations, common-sense suggests that the supervisor, if anything, ought to be held to higher account:
"Even more perplexing is the defendants' contention that Rodgers should receive the lion's share of the blame for the perceived timekeeping problems. The defendants insist that Rodgers was disciplined . . . for keeping time records which Fitts and Roth thought were incomplete and inaccurate. Once again, though, how does that belief, if sincere, differentiate Rodgers from Rusciolelli? If we blind ourselves to their actual job duties, then, at most, Rodgers shared responsibility for the perceived paperwork errors, since he and Rusciolelli jointly submitted the December time slips to Fitts along with Rodgers's supporting documentation. The defendants, though, have never explained how timekeeping errors even concerned Rodgers. As Rusciolelli makes clear in an affidavit, timekeeping and attendance records were solely his responsibility."
The defendants proffered a third reason for Rodgers' termination - that he skipped out on an after-hours meeting called by Fitts - but the panel holds that there is a genuine issue of material fact about whether that reason was worthy of credence, in light of the fact that Rodgers had not been informed that the meeting was mandatory and Fitts admitted that she had no authority to call the meeting in the first place.
Thus, the case is remanded for trial.