By: Nancy E. Joerg, Esq.
In many discrimination cases, employees of differing titles and ranks usually make poor "comparators" (i.e., it is difficult to effectively compare treatment of employees with different titles and ranks in a company). However, a recent Seventh Circuit Court of Appeals decision looks more closely at that premise.
In Rodgers v. White, No. 10-3916 (7th Cir. September 2, 2011), the Seventh Circuit Court of Appeals reached the unexpected result of allowing a plaintiff to use his supervisor as a comparator in a comparative discipline case alleging race discrimination. This legal decision is important because the Seventh Circuit had previously indicated in several cases that supervisors are typically poor comparators, but this case illustrated an exception to that general rule.
In this interesting race discrimination case, Mr. Rodgers, the plaintiff, was the only black employee among a lawn maintenance crew of 27 that worked for the Illinois Secretary of State ("State"), the defendant in this case. Mr. Rodgers was fired, according to the State, because he had been involved in a forbidden practice of allowing crewmembers to borrow State maintenance equipment. He had also been involved in improper timekeeping practices and supposedly had not been forthcoming or helpful in the investigations of such improper practices. However, Rodgers' supervisor (white) was involved in the same bad practices but was merely demoted by the State, not fired. The person at the State who fired Rodgers was the same person who demoted Rodgers' supervisor.
The Seventh Circuit Court of Appeals noted that Rodgers' supervisor had lied to the State as did Rodgers and even had more responsibility as a supervisor than Rodgers for the improper timekeeping practices. In the reasoning of the Seventh Circuit, these facts alone were enough to preclude summary judgment for the State, even where there was no evidence of disparaging comments about Rodgers' race (or other direct evidence of discrimination by the State).
The Seventh Circuit Court of Appeals presented the following reasoning:
"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." [Emphasis added]
The Seventh Circuit Court of Appeals further stated:
"We conclude, based on evidence that Rodgers engaged in the same conduct as his supervisor but was disciplined more harshly, that a jury could reasonably infer that Rodgers was discriminated against. We thus vacate the judgment (of the Federal District Court) and remand for trial." [Emphasis added]
Employers should remember that any time a company is going to fire or discipline an individual in a protected class (such as race, gender, disability, age, sexual orientation, national origin, religion, etc.), the company should look carefully at whether any other employees (not just those with the same job title and rank) have engaged in similar conduct and how they have been treated by the company in the past. If the company is going to discipline an employee in a protected class more severely for conduct that is arguably similar to conduct engaged in by other employees - even supervisors - the company better have a very strong reason for the difference...and better be ready to prove that reason!
Questions? Call Attorney Nancy E. Joerg of Wessels Sherman's St. Charles, Illinois office: 630-377-1554 or email her at najoerg@wesselssherman.com.
