52 F.4th 349
7th Cir.2022Background
- Andrew Dunlevy, a white meter reader for City Water Light and Power (CWLP), was hired on a 12‑month probationary period and terminated after supervisors found he had "curbed" (inaccurately recorded) meters at seven homes.
- Tour Murray, a Black meter reader hired at the same time, was also on probation; supervisors found repeated tardiness, early departures, and multi‑hour unauthorized absences, and that he omitted an old burglary conviction on an application.
- Supervisors unanimously recommended firing both employees; Mayor Langfelder fired Dunlevy but extended Murray’s probation for six months.
- Dunlevy sued the Mayor (§ 1983 equal protection) and the City (Title VII and Illinois Human Rights Act) for disparate punishment based on race.
- The district court granted summary judgment for defendants, finding Dunlevy and Murray not "similarly situated;" the Seventh Circuit reversed, holding a reasonable factfinder could find the comparators sufficiently similar to survive summary judgment and remanding.
- The court noted (1) the parties shared the same supervisor and standards, (2) the comparability dispute centered on whether meter falsification and prolonged unauthorized absences are conduct of comparable seriousness, and (3) the mayor likely had access to self‑identification forms showing race.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Dunlevy established a prima facie disparate‑punishment case by showing a similarly situated nonwhite employee was treated more favorably | Murray’s repeated long absences/tardiness similarly undermined CWLP’s core function and thus are comparable to Dunlevy’s meter curbing | Murray’s misconduct (tardiness/absences and an old nondisclosed conviction) is materially less serious than falsifying meter readings, so they are not similarly situated | Reversed: a reasonable jury could find Murray’s absences sufficiently comparable to Dunlevy’s curbing to permit a McDonnell Douglas prima facie case; case remanded to proceed to trial |
| Whether reverse‑discrimination plaintiffs must show background circumstances indicating employer bias (i.e., first McDonnell prong problem) | Dunlevy argued mayor’s concern about minority hiring could permit an inference of bias against whites | Defendants did not press this point on appeal; they focused solely on the comparator element | Court noted the special burden for reverse‑discrimination claims but declined to decide it because defendants waived the argument |
| Whether the decisionmaker (Mayor Langfelder) knew employees’ races when deciding discipline | Dunlevy: self‑identification forms were in personnel files the mayor reviewed, so a jury could infer he knew their races | Defendants: mayor testified he never personally met them and did not know their races | Held: a jury reasonably could infer the mayor had access to race information, so knowledge is a triable issue |
Key Cases Cited
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (establishes burden‑shifting framework for discrimination cases)
- Ezell v. Potter, 400 F.3d 1041 (comparator need not have identical infraction; comparability tied to undermining employer’s core function)
- Coleman v. Donahoe, 667 F.3d 835 (employees must have engaged in conduct of comparable seriousness; comparators need only be similar enough for a meaningful comparison)
- Gates v. Caterpillar, Inc., 513 F.3d 680 (same supervisor, same standards, similar conduct test for comparators)
- Naficy v. Ill. Dep’t of Human Servs., 697 F.3d 504 (elements of prima facie disparate‑punishment case)
- Gore v. Indiana Univ., 416 F.3d 590 (reverse‑discrimination plaintiff’s special burden to show background circumstances supporting inference of discrimination)
- Reives v. Illinois State Police, 29 F.4th 887 (dishonesty can be treated as more serious than inefficiency; employer’s view of comparative seriousness matters)