On October 26, 2022, the U.S. Court of Appeals for the Seventh Circuit handed employers another reminder of the potential benefits of consistent management.

In Dunlevy v. Langfelder, the Seventh Circuit upheld the appeal of a white former employee after determining that the alleged misconduct that led to his firing was similar to the alleged misconduct of a black employee, who was not fired. Because the two employees were treated differently even though they had engaged in similar misconduct, the court found that a jury would have to decide if the white employee’s race had played a role in the termination of his employment. The case serves as an example that employers cannot discriminate against employees because of their race under state and federal employment discrimination laws.

Background

In September 2017, Andrew Dunlevy was hired by the City of Springfield, Illinois, as a water meter reader. The City of Springfield also hired Tour Murray in September 2017 as a water meter reader. Both Dunlevy and Murray were subject to a twelve-month probationary period. They also received the same pay and reported to the same supervisor. Dunlevy is white and Murray is black.

Nearing the end of the probationary period, both Dunlevy and Murray were subjects of investigations due to allegations of misconduct. Dunlevy was discovered to have inaccurately recorded meter readings at seven different homes. Murray was found to have sometimes started work late, left work early, and walked off the job during his shift for periods of up to three hours. Murray also allegedly lied on his employment application by failing to disclose a conviction on his self-identification form.

Following the investigations, the supervisors of Dunlevy and Murray unanimously recommended to the mayor that both men’s employment be terminated before the end of the probationary period. However, the mayor fired only Dunlevy. In contrast, Murray’s probationary period was extended by six months.

The Plaintiff’s Lawsuit

After the termination of his employment, Dunlevy brought claims against the city alleging disparate treatment based on race. The district court granted summary judgment to the city. The Seventh Circuit reversed the district court’s decision and remanded the case for a trial, finding that Dunlevy and Murray were similarly situated employees who had engaged in comparable misconduct.

The Seventh Circuit warned that lower courts should not narrowly construe similarly situated comparators. The court emphasized that both Dunlevy’s and Murray’s misconduct was of comparable seriousness and culpability. The court reasoned: “After all, an employee who simply fails to show up to work undermines the utility’s core mission just as much as an employee who shows up but periodically does a poor job.”

Key Takeaways

The decision in Dunlevy v. Langfelder gives employers insight into what courts may look for when determining whether an employer has engaged in discriminatory conduct.

The case also reflects recurring themes in employment discrimination litigation that employers may want to keep in mind before, and after, litigation arises:

• No good deed goes unpunished. Several employers are making sincere efforts in hiring, promoting, and retaining diverse workforces to advance their business goals. However, some individuals may target these efforts via discrimination claims. In fact, in Dunlevy, the plaintiff pointed to the city’s efforts in minority hiring and retention as proof of discrimination. Though the court stated such actions do “not support an inference that the [city] was intentionally discriminating against white employees,” the outcome of the case suggests that there may be instances in which such efforts, if not implemented carefully, could come under scrutiny if the facts point to disparate treatment and employment discrimination prohibited by Title VII.

• Inconsistency may lead to litigation. A common tactic for a plaintiff to evade summary judgment in an employment discrimination case is to point to an employer’s inconsistencies with respect to policies and discipline. As demonstrated in Dunlevy, differences in disciplining employees may raise an inference of discrimination. Thus, by having and consistently following, for example, a progressive discipline policy, employers may be able to avoid or minimize the bad facts that were present in this case.

• Employers may want to consider what conduct is of “comparable seriousness” when issuing discipline. As evidenced in Dunlevy, conduct that may appear to be facially different may be similar for purposes of litigation. The Seventh Circuit made clear that misconduct need not be identical to support an employee’s right to a trial.