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Seventh Circuit Reverses Narrow Interpretation of “Similarly Situated” Employees

Andrew Dunlevy, a white male, worked as a utility meter reader for the City of Springfield (City). The City hired Tour Murray, a Black male, at the same time as Dunlevy. The men earned the same pay and reported to the same supervisor. The utility assigned a route to each meter reader where they checked meters and then entered data into their handheld computers. Each meter reader is on probation for the first year of their employment and may be "summarily terminated" during that time. The City investigated both employees for allegations of misconduct.

City supervisors found Dunlevy had "inaccurately recorded meters at seven different homes." The inaccurate recording of meter information was a fireable offense for all employees. Murray had been starting work late, leaving work early, and walking off of the job while he was on duty for up to three hours. The City's supervisors agreed that both men should be fired and presented their recommendations to the mayor. The mayor fired Dunlevy but not Murray. Instead, the mayor extended Murray's probationary period by another six months. Dunlevy sued for discrimination.

The Seventh Circuit Court of Appeals reviewed Dunlevy's claims after the lower court dismissed the case. In its opinion, the circuit court said the test to determine discrimination was different because it was a "reverse discrimination case." Thus, Dunlevy had to provide information that demonstrated an inference that "the employer has a reason or inclination to discriminate invidiously against whites or evidence that there is something 'fishy' about the facts at hand." In its appeal, the City argued Dunlevy and Murray were not "similarly situated" in their misconduct. Thus, the appellate court assessed whether the men's conduct was of "comparable seriousness." The court found that each man's conduct could be considered serious by a reasonable factfinder as their acts cost the utility time and money. The court asserted that Murray's tardiness and absence could violate a basic tenet of any employment, which is to be present.