82% of you wannabe judges disagreed with the Seventh Circuit Court of Appeals


In yesterday’s blog post (and on LinkedIn), I asked you to adjudicate a white man’s discrimination claim.

Specifically, you had to decide whether a white utility water meter reader who was fired for inaccurately reporting homeowners’ water meters was “similarly situated” to a black coworker who was not fired even though he started work late, left early, and took unauthorized hours-long breaks during his shift.

The district court ruled against the plaintiff because it concluded that the conduct at issue was so different that the men were not similarly situated. Two “similarly situated” employees must engage in conduct of comparable seriousness. It need not be identical, just “similar.”

One LinkedIn commenter agreed, “I say that these two situations are not similarly situated, and I would affirm the lower court’s ruling.”

But then, she hedged her bet.

“However, that seems too obvious to me, so I’m thinking I’m probably wrong because if this were simple, you wouldn’t be posting it.”

Folks, I think she’s on to something here.

Indeed, the Seventh Circuit Court of Appeals reversed and concluded that the two employees were similarly situated.

But why? Because both employees undermined the employer’s core business.

Here, the utility’s core business is providing utilities…, and the core function of a meter reader is to accurately read and report customers’ usage. [The plaintiff] repeatedly curbed the meters of multiple residential customers, costing both them and the utility time and money. No doubt, [his] conduct was serious in the eyes of the [defendants]. But the same could be said of [the comparator]. A reasonable factfinder can infer that an employee taking unauthorized leave for multiple hours every day is engaging in serious misconduct. After all, an employee who simply fails to show up to work undermines the utility’s core mission just as much as an employee who shows up but periodically does a poor job.

In other words, while the infractions were different, the overall impact on the business was close enough to make them appropriate comparators.

What do I think? I’m with you, folks. I don’t see it. And neither did the dissenting judge:

No reasonable factfinder could infer from the facts of this case that [they] engaged in conduct of comparable seriousness. [The plaintiff] falsified meter readings for at least seven different homes and therefore directly harmed … customers. His misconduct included charging a vacant house for water use and causing another customer to be required to pay $500 in a single bill. [His co-worker], in contrast, took unauthorized breaks during the workday…. Under our case law, … falsification of meter readings is a more serious transgression than … slacking off on the job.

There’s a general rule that courts can’t sit as a super-personnel department, second-guessing an employer’s business decision regarding whether someone should be fired or disciplined because of a work-rule violation. Heck, the majority contradicted 82% of you, an audience of mostly HR professionals and attorneys.

With all due respect to the Seventh Circuit, if you operate a business elsewhere, ignore this decision.

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