Crawford v. Indiana Harbor Belt R. Co.

• Decision Date: 23 August 2006
• Docket Number: No. 05-2825.,05-2825.
• Citation: 461 F.3d 844
• Parties: Tisa N. CRAWFORD, Plaintiff-Appellant, v. INDIANA HARBOR BELT RAILROAD COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 844

461 F.3d 844

Tisa N. CRAWFORD, Plaintiff-Appellant, v. INDIANA HARBOR BELT RAILROAD COMPANY, Defendant-Appellee.

No. 05-2825.

United States Court of Appeals, Seventh Circuit.

Argued July 11, 2006.

Decided August 23, 2006.

Anthony R. Burch (argued), Burch & Associates, Chicago, IL, for Plaintiff-Appellant.

Gerald L. Maatman, Jr., Michael Andrew Cox (argued), Seyfarth & Shaw, Chicago, IL, for Defendant-Appellee.

Before BAUER, POSNER, and KANNE, Circuit Judges.

POSNER, Circuit Judge.

Tisa Crawford brought this Title VII suit against her former employer, lost when the judge granted summary judgment for the defendant, and appeals. She worked as a "conductor"—the job that used to be called "trainman" or "brakeman"—which meant operating the switches that move the tracks, coupling and uncoupling the rail cars, and warning the engineers about derailment dangers. She was fired after receiving eight reprimands in her first year of work: four reprimands for not reporting for duty, two for failing to properly stabilize a boxcar (and in one of these incidents the boxcar partially derailed and was damaged), one for failing to wear safety glasses, and another one for riding on a rail car in an unsafe manner. She is a black woman— the only one employed by the defendant— and claims that she was discharged because of her race and sex.

Obviously she was not a model employee. But if equally bad or worse white men employed by the defendant as conductors (no white women were employed in that position) were retained despite deficiencies as serious as hers, and the employer failed at the summary judgment stage to offer a nondiscriminatory explanation for the difference in treatment or it did but the plaintiff presented evidence that the explanation was a pretext (that is, false), then she was, prima facie, a victim of discrimination. Flores v. Preferred Technical Group, 182 F.3d 512, 514-15 (7th Cir.1999); Bush v. Commonwealth Edison Co., 990 F.2d 928, 931 (7th Cir. 1993); see also Rodgers v. U.S. Bank, N.A., 417 F.3d 845, 852-53 (8th Cir.2005). ("Prima facie" because the defendant might at trial be able to show that the plaintiff was not fired because of her race. All that "prima facie" means is strong enough to preclude summary judgment for the defendant. Kovacevich v. Kent State University, 224 F.3d 806, 821 (6th Cir. 2000).)

But this assumes that the better-treated workers with whom the plaintiff compares herself are a representative sample of all the workers who are comparable to her. Bush v. Commonwealth Edison Co., supra, 990 F.2d at 931-32; see also Turgeon v. Premark Int'l, Inc., 87 F.3d 218, 221-22 (7th Cir.1996). She must not pick and choose. We know that the defendant employs about 200 conductors and that it fired 10 of them, besides the plaintiff, for safety and other infractions in a two-year period that includes the one-year period in which she worked. Her lawyer insisted at argument that two other conductors whose infractions were as serious as the plaintiff's were not fired. Suppose then that 12 male employees—the 10 who were fired and the 2 who were not—were comparable to the plaintiff; then 5/6 of the comparable males were treated as badly as she was. This means that 100 percent of the "bad" black female workers were fired and 83 percent of the "bad" white males, but since there was only one worker in the first class, namely the plaintiff, the percentage could not be less than 100 percent. Since perfect enforcement of company rules is hardly to be expected, the fact that "only" 83 percent of the "bad" white men were fired does not support an inference that the defendant treats white men better than black women.

The plaintiff says that the number of comparable white men who were treated better than she was 10 rather than 2—the 2 were just the most egregiously bad of the bad male workers, and if that is right then the percentage of bad men who were fired was only 50 percent, and this begins to suggest that men were treated more leniently than the plaintiff was. But only if the men who were retained really were no better than she, a judgment dependent on their being similarly enough situated to her to make comparison meaningful.

There has been a tendency in our cases, and in those of some other circuits as well (a trend resisted, however, by the Eighth Circuit, see Rodgers v. U.S. Bank, N.A., supra, 417 F.3d at 851-52 (8th Cir.2005); Wheeler v. Aventis Pharmaceuticals, 360 F.3d 853, 857 (8th Cir.2004)), to require closer and closer comparability between the plaintiff and the members of the comparison group (the group of 10 in this case). Brummett v. Sinclair Broadcast Group, Inc., 414 F.3d 686, 694 (7th Cir. 2005); Sartor v. Spherion Corp., 388 F.3d 275, 279-80 (7th Cir.2004); Adams v. Wal-Mart Stores, Inc., 324 F.3d 935, 940 (7th Cir.2003); Peele v. Country Mutual Ins. Co., 288 F.3d 319, 330 (7th Cir.2002); Knight v. Baptist Hospital of Miami, Inc., 330 F.3d 1313, 1316-18 (11th Cir.2003); Okoye v. University of Texas Houston Health Science Center, 245 F.3d 507, 514 (5th Cir.2001) ("nearly identical"). The requirement is a natural response to cherry-picking by plaintiffs, the issue with which we began. If a plaintiff can make a prima facie case by finding just one or two male or nonminority workers who were treated worse than she, she should have to show...