Seventh Circuit decision confirms seniority is an appropriate factor to determine lack of “similarly situated co-worker” in discrimination claims.
Editor’s comment: This ruling confirms the four-part McDonnell Douglas test known as the indirect method to prove discrimination. It also confirms seniority will tend to make two employees dissimilar for purposes of plaintiff’s prima facie case and forces an individual arguing discrimination to present more than simple allegations to survive summary judgment. It should also be noted the documentation in company files appears to have provided ample evidence for affidavits disputing charges which were the strong backbone of the defense in successfully achieving summary judgment.
In Tyson v Gannett Co., Inc. (No. 07-2832 August 19, 2008), the Seventh Circuit Court of Appeals on appeal from the United States District Court for the Southern District of Illinois decided a claim where Plaintiff Angela Tyson sued her employer Gannett Company, Inc., alleging it had discriminated against her on the basis of her race and disability and further retaliated against her for filing a disability charge of discrimination by refusing to let her return to work at her discretion after she had suffered a back injury. It should be noted that during the course of the litigation, Tyson abandoned all avenues of relief except for her two race discrimination claims. The district court granted summary judgment in favor of Gannett on both claims after they found Tyson failed to make out a prima facie case because she failed to present sufficient evidence to establish that a similarly situated white employee was treated more favorably.
Tyson’s employer, Gannett, owns the Indianapolis Star and News newspaper. Tyson was hired in 1998 as a mailer helper and was promoted to mailer assistant. Like all mailer assistants at the Star, Tyson is a member of the Teamsters Indiana Mailers Union Local 2001. The collective bargaining agreement between the Union and the Star required tasks be assigned to mailer assistants on the basis of “priority” (seniority). Thus, the most senior mailer assistant on a shift is allowed to choose the task she or he wishes to perform.
It should also be noted, when it is available, special “light duty” work can be given to mailer assistants who are injured or who have medical restrictions because of health problems. On October 3, 2002, Tyson slipped and fell at work and was injured. She took sick leave and returned to work with medical restrictions, so she was assigned light work. In December 2002, her doctor discovered she had injured her arm in the fall and imposed additional work restrictions. In February 2003, Tyson had surgery to remove a cyst on her tail bone, unrelated to her fall. After that surgery, she claims to have had chronic back pain. Tyson took short-term disability leave beginning in February 2003. In June 2003, Tyson was released to return to work, but the Star had no openings for her that she could perform at that time with her restriction of not lifting more than 25 pounds. A medical report of October 2003 stated she could work if she was provided with a counter brace for her right upper extremity and a lifting restriction of 35 pounds. When she no longer needed the brace, Tyson returned to work as a mailer assistant in November with a 25-pound lifting restriction and was assigned light duty work. Then, in 2004, her back began to cause her discomfort. At that time, no light duty work assignments were available and she sought and obtained both short and long-term disability benefits. She remains on long-term disability to this day while still an employee of the Star.
Tyson sued Gannett under §1981 and Title VII of the Civil Rights Act of 1964. Gannett argued Tyson cannot bring a Title VII claim because, it says, she did not file a charge of race discrimination with the Equal Employment Opportunity Commission (EEOC) and, thus, has failed to exhaust her administrative remedies. For reference, a plaintiff can sue under Title VII only if she first has filed a charge of discrimination with the EEOC. See Sitar v. Ind. Dep’t of Transp., 344 F.3d 720, 726 (7th Cir. 2003). Tyson failed to present any evidence disclosing whether she filed a Title VII race discrimination claim, thus Gannett was entitled to summary judgment on Tyson’s Title VII claim because she failed to comply with the EEOC requirement.
Please note an amendment to the Illinois Human Rights Act made significant changes to Illinois law on January 1, 2008. The amended law allows Illinois employees to have employment law disputes heard by a jury. The most significant change was the newly created option for a plaintiff to have the claim in civil court upon completion of an investigation by the IDHR. Prior to the amendment, the only judicial forum for employment discrimination disputes was federal court. State law had no judicial remedies. If you need details on this issue, send a reply.
The Section 1981 claim initially survived, however, because the filing of a discrimination charge with the EEOC is not a prerequisite to pursuing that claim in court. The Court then turned to the question of whether there was any evidence to support her claim of race discrimination.
Tyson chose to prove her case using the indirect method set forth in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). The four-part McDonnell Douglas test is
(1) Is the complaining party a member of a protected class?
(2) Was the complaining party meeting defendant’s legitimate job requirements?
(3) Did the complaining party suffer an adverse employment action?
(4) Was another employee of a different race who was similarly situated treated more favorably?
The parties do not dispute that Tyson met the first three prongs. They disagreed about whether Tyson could establish the fourth prong by proving that a Caucasian employee, Janet Harvey, was similarly situated and she was treated more favorably. Tyson asserted Harvey was allowed to work as a mailer assistant when she had a 25 pound lifting restriction. To be similarly situated, Harvey and Tyson must be alike “in all material respects,” so as to suggest that Tyson “was singled out for worse treatment.” Henry v. Jones, 507 F.3d 558, 564 (7th Cir. 2007) (quoting Crawford v. Ind. Harbor Belt R.R. Co., 461 F.3d 844, 846 (7th Cir. 2006)).
The record demonstrated Tyson and Harvey were not similarly situated because they had different seniority status which was the determining factor in job assignment under the union’s collective bargaining agreement. Harvey began working for the Star approximately three years before Tyson. An affidavit confirmed Harvey was in the top half of mailer assistants in terms of seniority, while Tyson was in the bottom half. Harvey had enough seniority to ensure she would only have to work on tasks within her restrictions. It was noted the Seventh Circuit recently ruled in Filar v. Board of Education of the City of Chicago, 526 F.3d 1054, 1061-62 (7th Cir. 2008), that: “In some circumstances, differences in seniority will preclude a showing that two employees are ‘similarly situated’. . . . To the extent that seniority is a simple proxy for something like the length of employment and is something that an employer must credit when making employment decisions, differences in seniority will tend to make two employees dissimilar for purposes of the plaintiff’s prima facie case.” Under this reasoning, Tyson and Harvey are not similarly situated and, therefore, summary judgment was appropriate because Tyson failed to prove her prima facie case of race discrimination.
This case is also another example of a company following set guidelines—in this case, a collective bargaining agreement—and documenting a situation effectively to avoid liability for claims via summary judgment with appropriate evidence to support their defenses rather than proceeding to the whims of a judge or jury for a determination on the merits without appropriate evidence. We again remind all employers to follow your guidelines and ALWAYS DOCUMENT to provide the company with defenses in these types of litigation. This article was researched and written by Shawn R. Biery, J.D. If you have thoughts and comments or need the case citation, please send a reply to sbiery@keefe-law.com.
