Pettygrove: Determining proper comparators in ‘disparate punishment’ cases

Employees who feel they’ve been “singled out” for termination or other workplace discipline are prime candidates to become plaintiffs in an employment discrimination suit. But inconsistent discipline — even discharge — isn’t necessarily unlawful. Different departments within an organization have different roles and rules, different supervisors have different approaches, business needs change over time, and sometimes workers wind up being treated differently due to good faith human error. At the same time, employers can’t discriminate against employees on the basis of legally protected categories or conduct (e.g., race, sex, age, reporting unlawful discrimination, etc.).

Of course, employers and employees frequently disagree about the “real reason” for workplace punishment. Discrimination claimants often try to establish that they were mistreated because of an unlawful motive by pointing to “comparators” — coworkers outside their protected class who committed “the same” misconduct but received lesser (or perhaps no) punishment. If an employee in one protected class is treated more harshly than another outside that class, and all other relevant circumstances are the same, an inference may arise that the differential treatment is due to illegal discrimination and the plaintiff’s case is more likely to survive summary judgment.

7th Circuit standards

The 7th Circuit utilizes a “flexible, common-sense, and factual” approach to determine whether a disparate punishment plaintiff has identified a proper comparator for purposes of surviving summary judgment. E.g., Coleman v. Donahoe, 667 F.3d 835, 841 (7th Cir. 2012). To start with, proposed comparators must be “directly comparable” to the plaintiff in “all material respects.” Id. (emphasis added). Typically, that means the plaintiff and proposed comparators (1.) “dealt with the same supervisor,” (2.) “were subject to the same standards,” and (3.) “engaged in similar conduct without such differentiating or mitigating circumstances as would distinguish their conduct or the employer’s treatment of them.” Id. at 847 (internal citations omitted). The purpose of this test is to eliminate variables that might explain an employer’s differential treatment, “such as differing roles, performance histories, or decision-making personnel, which helps isolate the critical independent variable — discriminatory animus.” Id. at 841, 846 (internal quotations omitted).

These guidelines notwithstanding, there is no “magic formula,” and comparators “need not be identical in every conceivable way.” Id. at 846-47; see also Chaney v. Plainfield Healthcare Center, 612 F.3d 908, 916 (7th Cir. 2010) (“We are looking for comparators, not ‘clone[s].’”). Relevant factors depend on the facts of each case, and a comparator is valid as long as the distinctions between the plaintiff and proposed comparator are not so significant that they “render the comparison effectively useless.” Coleman, 667 F.3d at 849. Ultimately, comparators need only to have engaged in conduct of “comparable seriousness.” Id. at 850, n.2 (emphasis in original, internal citations omitted).

‘Comparable seriousness’: Theory vs. evidence

In Dunlevy v. Langfelder, et al., 52 F.4th 349 (7th Cir. 2022), a city hired two meter readers — one Black, one white — both of whom were investigated for suspected misconduct. The city determined that the white employee had engaged in “curbing meters,” meaning he inaccurately recorded meter readings resulting in customer underpayments and overpayments. Id. at 352. The city determined that the Black employee repeatedly arrived late, left early and left work while on duty. Their common supervisor — and four further layers of management — recommended firing both workers. The mayor, however, only terminated the white meter reader after deciding that inaccurate timekeeping was less egregious and more likely a training issue as compared to meter curbing.

The fired employee brought a race discrimination claim, arguing that he received harsher punishment than his co-worker despite having engaged in similarly serious misconduct. The district court held that “goofing off” on the job was less serious and more correctible than false meter reading and granted summary judgment for the city, Dunlevy v. Langfelder, No. 19-cv-3093, 2021 WL 5040299 (Oct. 29, 2021), but a divided appellate panel reversed.

According to the appellate majority, “the core function of a meter reader is to accurately read and report customers’ usage.” Dunlevy, 52 F.4th at 354. While meter curbing is clearly a serious problem, a reasonable factfinder also could “infer that an employee taking unauthorized leave for multiple hours every day is engaging in serious misconduct,” and an employee who fails to show up “undermines the utility’s core mission just as much as an employee who shows up but periodically does a poor job.” Id. Under this view, the plaintiff had established a prima facie case of discrimination via differential punishment of comparably serious offenses, so the case was reversed and remanded. Id. at 355.

The majority opinion in Dunlevy could be interpreted as a court superimposing its own business judgment and/or elevating abstract theory over operational realities. After all, an employer’s belief that timekeeping inaccuracies are meaningfully different from work product falsification isn’t objectively outrageous, as reflected by both the district court’s original ruling and the appellate dissent. See Dunlevy, 52 F.4th at 355 (Ripple, Cir. J., dissenting) (stating Mayor Langfelder “made a permissible mayoral decision” in distinguishing between the plaintiff’s and his co-worker’s conduct).

On closer read though, Dunlevy is less an instance of judicial second-guessing and more an example of how case-specific evidentiary submissions affect the outcome of 7th Circuit precedent. Indeed, the majority in a footnote expressly disclaimed creating or applying any bright-line rule regarding the seriousness of certain types of workplace infractions and explained that, in this particular case, there was “minimal guidance in the record about which infractions the City generally perceives as more or less serious.” Id. at 354, n. 2 (also distinguishing cases referenced by the dissent).

That footnote seems to be the key to understanding the case. Summary judgment briefing suggests that the record evidence of the mayor’s rationale was limited to brief responses to leading deposition questions by his own defense counsel (as compared to, say, full-throated testimony from the mayor at deposition or via affidavit confirming what he believed and why). It does not appear that the mayor created any documentation at or near the time of his decision confirming why he chose to disregard the unanimous recommendation of multiple other supervisors. The city introduced no policy documentation or evidence of past practice reflecting that meter curbing was a “more cardinal” sin. As a result, the court was left mostly with counsel’s theorizing about comparative seriousness rather than case-specific facts and evidence.

Of course, none of these evidentiary omissions establish that the mayor in Dunlevy made a racially motivated decision, nor are employers “required” to create any particular amount or type of documentation. But their absence prevented the Dunlevy defendant from escaping liability through a dispositive motion. Employers may be able to avoid similar fates by, e.g., (1.) ensuring that handbooks/policies clearly and comprehensively identify unacceptable behaviors, (2.) reviewing past practice before finalizing disciplinary decisions (especially discharges), and (3.) working with counsel to create solid documentation thoroughly describing each decision-maker’s nondiscriminatory thought processes — especially when deviating (or arguably deviating) from prior “precedent” or others’ recommendations.•


Joseph C. Pettygrove is a partner at Kroger Gardis & Regas LLP. Opinions expressed are those of the author.

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