Dunlevy v. Langfelder
Docket Number | 21-3098 |
Decision Date | 26 October 2022 |
Citation | 52 F.4th 349 |
Parties | Andrew DUNLEVY, Plaintiff-Appellant, v. James O. LANGFELDER, et al., Defendants-Appellees. |
Court | U.S. Court of Appeals — Seventh Circuit |
John A. Baker, Attorney, Baker, Baker & Krajewski, Springfield, IL, for Plaintiff-Appellant.
Steven C. Rahn, Robert Hogue, III, Kateah McMasters, Attorneys, Office of the Corporation Counsel, Springfield, IL, for Defendants-Appellees.
Before Ripple, Rovner, and Jackson-Akiwumi, Circuit Judges.
Andrew Dunlevy, a white man who worked as a utility water meter reader for the City of Springfield, sued Mayor James Langfelder and the City for racial discrimination after he was fired for inaccurately reporting homeowners' water meters. In support of his claims, Dunlevy compared himself to a black coworker, Tour Murray, who was not fired even though he started work late, left early, and took unauthorized hours-long breaks during his shift. At summary judgment, the district court ruled against Dunlevy because it concluded that the conduct at issue was so different that the men were not similarly situated, leaving Dunlevy unable to establish a prima facie case of disparate punishment. We reverse because the district court drew too narrow a comparison: The two men are sufficiently similarly situated for Dunlevy to at least bring his claims to trial.
Springfield's publicly owned utility, City Water Light and Power, employs water meter readers. The utility assigns the meter readers a route to follow each month. On their routes, the meter readers visit each residential and commercial customer location, find the meter there, and enter the corresponding data into a handheld computer. There is no handbook or policy manual for meter readers; they primarily receive on-the-job training.
Meter readers, like most City employees, are subject to a twelve-month probationary period at the beginning of their employment, as required by City ordinance. Springfield, Ill., Code § 36.11 (2021). During the probationary period employees can have their employment summarily terminated. Only after the probationary period ends are employees "certified," which entitles them to certain employment protections. Meter readers work for the utility, but the mayor is the ultimate decisionmaker in all hiring and firing for the City.
In September 2017, Mayor Langfelder hired Dunlevy and Murray as meter readers. Both men received the same pay and were placed on the twelve-month probationary period. The two men also had the same supervisory structure: they directly reported to the same supervisor, and there were five levels of supervision between them and the mayor.
Near the end of their probationary periods, both Dunlevy and Murray were the subjects of investigations into misconduct. Supervisors discovered that Dunlevy had inaccurately recorded meters at seven different homes, a practice known as "curbing meters." Whether Dunlevy did so accidentally or intentionally was of no importance to his supervisors. Two supervisors testified at a deposition that curbing meters is a fireable offense, even for protected employees. As for Murray, supervisors discovered that he had been starting work late, leaving work early, and walking off the job while on duty, sometimes for up to three hours. Murray also lied on his employment application by failing to disclose a seven-year-old burglary conviction on his self-identification form, even though the city required applicants to disclose any prior convictions. Although lying on a job application is considered a fireable offense, one witness stated that the City does not require applicants to disclose convictions that are more than seven years old. All of the supervisors who worked beneath the mayor unanimously agreed that both men should be fired, and they presented this recommendation to the mayor.
Langfelder fired Dunlevy, but not Murray. He extended Murray's probationary period by another six months. Langfelder testified that he understood that Murray's conduct involved only taking 15-minute lunch breaks, which was merely a training issue.
Dunlevy brought an equal protection claim (under 42 U.S.C. § 1983 ) against Langfelder and an Illinois Human Rights Act claim (under 775 ILCS 5/2-101 ) and a Title VII claim (under 42 U.S.C. § 2000e ) against the City for disparate punishment based on his race.1 The mayor and the City moved for summary judgment, arguing that Dunlevy and Murray were not similarly situated therefore Dunlevy could not make a prima facie case for disparate punishment, and the district court agreed. Dunlevy now appeals that determination.
We review a summary judgment decision de novo and construe the record in the light most favorable to the nonmoving party. Hall v. Nalco Co. , 534 F.3d 644, 646 (7th Cir. 2008). Summary judgment is appropriate only when there is no genuine dispute of material fact, and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c).
All three of Dunlevy's claims follow the same analysis, so they all rise or fall together. See Barnes v. Bd. of Trs. of Univ. of Ill. , 946 F.3d 384, 389 (7th Cir. 2020) (); Zaderaka v. Ill. Human Rights Comm'n , 131 Ill.2d 172, 137 Ill.Dec. 31, 545 N.E.2d 684, 687 (1989) ( ). Dunlevy pursues his claims under the McDonnell Douglas burden-shifting framework, see McDonnell Douglas Corp. v. Green , 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), which gives the plaintiff the initial burden to establish a prima facie case of discrimination, after which the burden shifts to the defendant to provide a legitimate justification, before finally shifting back to the plaintiff to establish that such justification was pretextual. Purtue v. Wis. Dep't of Corr. , 963 F.3d 598, 601–02 (7th Cir. 2020). The parties focus only on Dunlevy's initial burden of establishing a prima facie case.
To establish a prima facie case for disparate punishment, Dunlevy must show: (1) he is "a member of [a] protected class"; (2) he met his "employer's legitimate job expectations"; (3) he suffered an "adverse employment action"; and (4) "similarly situated employees outside of the protected class were treated more favorably." Naficy v. Ill. Dep't of Human Servs. , 697 F.3d 504, 511 (7th Cir. 2012). The parties disagree solely on the final element—whether Dunlevy and Murray are similarly situated.
The parties' dispute on appeal ignores an initial snag in Dunlevy's claims. Because this is a reverse discrimination case (as Dunlevy is a member of a majority group), "the first prong of the McDonnell test cannot be used," and Dunlevy cannot simply succeed by showing he is of a certain race. See Gore v. Indiana Univ. , 416 F.3d 590, 592 (7th Cir. 2005) (citation omitted). Rather, Dunlevy must provide evidence of "background circumstances ... show[ing] an inference that the employer has reason or inclination to discriminate invidiously against whites or evidence that there is something ‘fishy’ about the facts at hand." Bless v. Cook Cnty. Sheriff's Office , 9 F.4th 565, 574 (7th Cir. 2021) ; see also Mills v. Health Care Serv. Corp. , 171 F.3d 450, 455 (7th Cir. 1999). Dunlevy suggests that Langfelder and the City had a reason for discriminating against whites because the mayor "was very concerned about minority hiring numbers." But that only shows that the mayor was concerned with minority hiring and retention—it does not support an inference that the mayor was intentionally discriminating against white employees. Regardless, we do not decide this issue because the mayor and the City rest solely on the similarly situated element before the district court and this court, so they have waived any argument on this front. See Cloutier v. GoJet Airlines, LLC , 996 F.3d 426, 451 (7th Cir. 2021) (citations omitted).
Employees are similarly situated if they "dealt with the same supervisor, were subject to the same standards, and had engaged in similar conduct without such differentiating or mitigating circumstances as would distinguish their conduct or the employer's treatment of them."
Gates v. Caterpillar, Inc. , 513 F.3d 680, 690 (7th Cir. 2008) (citation omitted). "This is not a ‘magic formula,’ however, and the similarly-situated inquiry should not devolve into a mechanical, ‘one-to-one mapping between employees.’ " Coleman v. Donahoe , 667 F.3d 835, 847 (7th Cir. 2012) (citation omitted). If a comparator engaged in equivalent or more egregious conduct than the plaintiff but received a lighter punishment, or none at all, that satisfies the inquiry. Ezell v. Potter , 400 F.3d 1041, 1050 (7th Cir. 2005). The parties agree that Dunlevy and Murray had the same supervisor and were subject to the same standards. Thus, the only question is whether the two men's conduct was of "comparable seriousness," i.e. , did they engage in "similar—not identical—conduct to qualify as similarly situated." Coleman , 667 F.3d at 850–51 (citations omitted).
Dunlevy suggests two bases for why Murray is an appropriate comparator. First, Dunlevy contends that Murray's repeated disregard for his work hours rose to the same level of seriousness. This argument echoes our decision in Ezell. There, the United States Postal Service fired a white man for taking a single extended lunch break and identified a black employee who lost a piece of mail and was not disciplined. Ezell , 400 F.3d at 1050. We held that because the USPS's "primary business is delivering mail," it logically followed that misplacing mail "would also be a serious offense, at least as serious as taking a long lunch." Id.
Here, the utility's core business is providing utilities to the residents of Springfield, and the core function of a meter reader is to accurately read and report customers' usage. Dunlevy...
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