Rodgers v. White, 10–3916.

• Citation: 94 Empl. Prac. Dec. P 44260,657 F.3d 511
• Decision Date: 02 September 2011
• Docket Number: No. 10–3916.,10–3916.
• Parties: Mark P. RODGERS, Plaintiff–Appellant,v.Jesse C. WHITE, Secretary of State of Illinois, et al., Defendants–Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

657 F.3d 511

94 Empl. Prac. Dec. P 44,260

Mark P. RODGERS, Plaintiff–Appellant,

v.Jesse C. WHITE, Secretary of State of Illinois, et al., Defendants–Appellees.

No. 10–3916.

United States Court of Appeals, Seventh Circuit.

Argued July 12, 2011.Decided Sept. 2, 2011.

Donald R. Jackson (argued), Attorney, Peoria, IL, for Plaintiff–Appellant.Mary Ellen Welsh (argued), Attorney, Office of the Attorney General, Chicago, IL, for Defendants–Appellees.Before BAUER, CUDAHY, and TINDER, Circuit Judges.CUDAHY, Circuit Judge.

Mark Rodgers, a longtime employee of the Secretary of State's office in Illinois, was fired from his job but reinstated after arbitration. In this litigation he claims that two white managers targeted him for termination because he is black. The district court granted summary judgment for the defendants. Rodgers's primary argument on appeal is that he and two white coworkers engaged in the same alleged misconduct, yet his white counterparts were treated less harshly. Rodgers focuses on the coworker with the same job title, but the other white employee, Rodgers's immediate supervisor, is the better comparator. We have observed in many decisions that employees of differing ranks usually make poor comparators, but the rationale behind that general rule does not apply in this case. 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 and remand for trial.

I. Background

The following account is drawn from the evidence at summary judgment, as viewed in the light most favorable to Rodgers. See Sow v. Fortville Police Dep't, 636 F.3d 293, 299–300 (7th Cir.2011). When Rodgers was fired in 2006, he was the only black employee in a crew of more than 27 lawn-maintenance workers. He had been a grounds worker for more than 20 years, most of that time as a supervisor, and had been disciplined only twice, receiving verbal warnings in 1989 and 1999. The decision to fire Rodgers was made by Donna Fitts, the director of his department, and Stephen Roth, the personnel director. Both are white. Their reasons for discharging Rodgers, which are set out in an August 2006 letter signed by Roth, all stemmed from two incidents.

The first incident involved the alleged misuse of state property. In the Fall of 2005, the Inspector General for the Secretary of State's office issued a report summarizing an investigation into allegations that Rodgers and his immediate supervisor, Dave Rusciolelli, let crew members borrow state equipment for personal use. According to the report, the practice was discovered when a temporary employee injured himself retrieving a state-owned aerator from a crew member's house. The crew member insisted that both Rodgers and Rusciolelli had known he borrowed state equipment and, in fact, embraced an “open door” policy regarding personal use of state equipment. Rodgers and Rusciolelli denied the crew member's allegations, though, according to the Inspector General, Rodgers gave shifting explanations: Rodgers initially said he thought the temporary employee had been injured while getting the aerator from a storage area, but later he told an investigator that he sent the temporary employee and a regular crew member to retrieve the aerator as soon as he heard that an employee had taken it home. The investigator reported that Rodgers had become irritated when asked about this apparent discrepancy, which Rodgers attributed—truthfully, we must assume—to his initial confusion about the investigator's questions. Rodgers also had told the investigator that the temporary employee ascribed his injury to lifting weights, a statement that the young man denied making. At this stage, of course, we must credit Rodgers's version.

In response to the Inspector General's report, the personnel department initiated discipline against the employees involved. The crew member who borrowed the aerator was fired, in part because he borrowed it, but principally because management discovered around this same time that he lacked a valid driver's license, which was a condition of his employment. That employee contested his discharge, but lost. For Rodgers, the personnel department proposed an 18–day suspension, yet for Rusciolelli, who is white, only a 3–day suspension was contemplated. For reasons not disclosed in the record, neither proposed suspension was ever implemented, and, so it appeared at the time, the matter was dropped.

The second incident came to light in early 2006 after Fitts, who was critical of Rusciolelli's management of Rodgers, was appointed as the acting director of their department. In January 2006, Fitts received from Rodgers and Rusciolelli time slips for the month of December. Rusciolelli alone was responsible for completing these time slips, but he had asked Rodgers to help out, which Rodgers had agreed to do. Fitts thought that the December time slips were missing necessary information, and so she and Roth began to investigate.

What they found is that crew members were requesting leave that was not shown in the payroll system as earned. It turned out that Fitts's predecessor, Cecil Turner, had authorized Rusciolelli to give workers “comp time” for their overtime hours after the Secretary of State imposed a moratorium on overtime pay. Turner had proposed, and gained union approval for, this system because some tasks, such as snow removal, could not always be completed during normal working hours. Under Turner's system the overtime hours were recorded informally “off the books,” and employees used personal time to draw against the banked overtime.^*

A few days after receiving the December 2005 time slips from Rusciolelli and Rodgers, Fitts met with them to discuss timekeeping. She laid out what she thought was the correct procedure for completing time slips, and she ordered the two men to stop recording overtime “off the books” and to start submitting all overtime requests to her two days in advance. She gave the same order to Robert Deffenbaugh, a white crew supervisor also under Rusciolelli's supervision. But Fitts did not bar overtime work, and from the record it appears that she continued Turner's practice of awarding compensatory time, though with the understanding that formal records would be kept of the overtime hours. Rusciolelli and Rodgers stopped using the “off the books” system immediately, but Fitts still wanted Rodgers to redo his December time slips to conform to her newly implemented procedure. She says that he failed to properly complete the slips even after she returned them to him several times; Rodgers says that he couldn't complete the forms because Fitts took away his computer, where the relevant data was stored.

Rusciolelli and Rodgers also told Fitts that Rodgers had retained handwritten records of his crew's past overtime hours. Fitts asked for copies, and Rodgers provided what he thought was a complete set (though he later found additional overtime records in a filing cabinet outside his office). During February 2006 a liaison from the personnel department tallied the uncompensated overtime for Rodgers's crew and mistakenly concluded that the workers had taken more than that amount of hours as personal time. Rodgers recognized the calculation to be mistaken and refused to sign off on it, as did most of his crew. The next day, March 1, the liaison told Rodgers that Fitts wanted to meet with him and his crew that afternoon, more than an hour after Rodgers's shift was to end. The liaison asked him to notify his crew, and Rodgers contacted every member he could locate on site. But Rodgers himself skipped the meeting because he wasn't told that it was mandatory or whether overtime had been approved for his attendance. Fitts had no authority, she admits, to order an employee to attend an after-hours meeting without first approving overtime, which she had not done.

Fitts called in Rodgers for another meeting—also after hours but this time with overtime approved—in late March. Roth also was present, and Rodgers brought along a union representative. During the meeting Fitts demanded, and Rodgers relinquished, his original time slips from December, which included the files he had overlooked when he gave copies to Fitts in January. This March meeting was the last time that Fitts asked Rodgers for records. Later, after Rodgers had been fired, an independent auditor concluded that his records of the crew's overtime were accurate.

Although this allegedly “inaccurate reporting of time” was one reason given for Rodgers's discharge, no other employee involved in the incident was punished so severely. Rusciolelli, for his perceived role in the timekeeping problems and equipment misuse, was demoted to yard work. Deffenbaugh, the other crew supervisor, was not disciplined; during discovery Fitts explained the different treatment by saying that Rodgers alone had failed to turn over all of his records when asked, but when pressed she admitted that she never asked Deffenbaugh to turn over his records. Fitts had focused on Rodgers and Rusciolelli, she said, because they sent her incomplete time slips, and she never thought to investigate Deffenbaugh's records. According to the department liaison, Deffenbaugh's crew never protested the department's calculations of their time.

The parties describe one more event that, though not given as a reason for Rodgers's discharge, does show further friction between Fitts and Rodgers. Historically, Rodgers had raised and lowered the flag on top of the capitol building when needed. That task was considered dangerous because of the location of the flagpole, and thus earned him an annual stipend. In April 2006, however, Fitts decided in coordination with the union to rotate flag duty among crew members who volunteered, for a fixed rate per assignment. When the time came to lower...