RODGERS v. WHITE (September 2, 2011)

The Illinois Secretary of State employed Mark Rodgers as a lawn maintenance worker for over 20 years. He was the only black employee on a 27-person crew. He was fired in 2006 by Donna Fitts, the Department director and a white woman, and Stephen Roth, the personnel director and a white man. The termination arose from two or three incidents. First, a late 2005 Inspector General report concluded that Rodgers and his supervisor, Dave Rusciolelli, who is white, allowed their crewmembers to use state-owned equipment on personal time. The department recommended a 3-day suspension for Rusciolelli and an 18-day suspension for Rodgers, although neither suspension was ever implemented. Second, in early 2006, Fitts discovered that Rogers, Rusciolelli, and a third man, a white crew supervisor, were recording overtime off the books. The Department had imposed a moratorium on overtime. This off-the-books system allowed crewmembers to work overtime in return for later, equivalent personal time off. Third, Rodgers skipped a meeting that Fitts called because he was not told it was mandatory and because Fitts had not approved overtime for the meeting. In mid-2006, Fitts recommended Rodgers' termination. Her termination memorandum cited as grounds only the abuse of state equipment and the improper overtime but her letter to Rodgers also included his failure to attend the meeting. Following arbitration, Rodgers was reinstated with back pay. Nevertheless, he brought suit against the Secretary of State under Title VII and against Fitts and Roth under §§ 1981 and 1983. Chief Judge McCuskey (C.D. Ill.) granted summary judgment to the defendants. He concluded that Rodgers had no direct evidence of discrimination and that, under the indirect method, Rodgers failed to identify a similarly situated coworker. Rodgers appeals.

In their opinion, Seventh Circuit Judges Bauer, Cudahy, and Tinder vacated and remanded. The Court agreed with the district court with respect to the direct method. It disagreed, however, with respect to the indirect method. The Court conceded that supervisors generally are not good comparators under the similarly situated analysis. But here, it found Rusciolelli a good comparator. Rodgers and Rusciolelli were accused of the same things, were equally responsible, and were disciplined by the same supervisor. The only substantial difference is the accusation that Rogers failed to attend a meeting but there are at least material fact questions regarding that meeting. Rodgers has therefore identified a similarly situated white individual who was treated more favorably -- summary judgment should not have been granted.