On October 12, 2018, the 7th Circuit affirmed an order of summary judgment in favor of a defendant-employer in a Title VII gender discrimination lawsuit in which the plaintiff-employee alleged that she did not get the same chance to resign her employment with severance pay that three male employees got. Barbera v. Pearson Education, Inc., No. 18-1085 (7th Cir. 10/12/2018). The district court granted summary judgment because the proposed comparator male employees were not similarly situated to the plaintiff. They sought resignation with severance pay before circumstances with the employer materially changed, but the plaintiff sought resignation with severance pay after circumstances changed. Title VII of the Civil Rights Act of 1964 (“Title VII”) makes it unlawful for an employer to fail or refuse to hire or to discharge any employee, or otherwise discriminate against any employee with respect to her compensation, terms, conditions, or privileges of employment, because of her race, color, religion, sex, or national origin. Gender discrimination in connection with disparate severance pay is a cognizable claim under Title VII.
Under the McDonnell Douglas burden-shifting framework for employment discrimination claims, a plaintiff must show: (1) she is a member of a protected class; (2) she performed her job to her employer’s legitimate expectations; (3) she suffered an adverse employment action; and (4) one or more similarly situated employees outside of her protected class received better treatment from the employer. If she establishes these elements,the burden shifts to the employer to present a legitimate, non-discriminatory reason for the challenged employment action. If the employer carries its burden, then the burden shifts back to the employee to demonstrate that the employer’s proffered reason is pretext for discrimination. The district court granted summary judgment because the plaintiff did not satisfy the fourth element–disparate treatment. She did not raise evidence or reasonable inferences that any similarly situated employee received more favorable treatment. An employee is similarly situated to a plaintiff if the two employees deal with the same supervisor, are subject to the same standards, and have engaged in similar conduct without such differentiating or mitigating circumstances as would distinguish their employer’s treatment of them. Similarly situated employees must be directly comparable to the plaintiff in all material respects, but this is “a flexible inquiry with no magic formula.” Whether a comparator is similarly situated is usually a question of fact; and summary judgment is appropriate only when no reasonable fact-finder could find that the plaintiff has met her burden.
The plaintiff identified three male employees who requested and received severance pay, but they requested severance pay and left their employment before the plaintiff made her first severance request. The timing distinction meant that the proposed comparators are not similarly situated to the plaintiff because the employer was going through rapid, material changes when the three male employee requested and received severance pay, but not when the plaintiff did. The employer’s promise of continued employment to employees such as the plaintiff is a differentiating circumstance between her and the proposed comparators. When the plaintiff sought severance pay, the employer was transferring some of its business and transitioning some of its employees to the entity that was acquiring it through a merger and acquisition. By the time that the plaintiff sought severance, the employer had already established which employees would be retained and available to transition, and was not seeking to eliminate job positions for budget concerns. The plaintiff did not seek severance until after discussions about transitioning employees began, but the male employees sought severance significantly earlier under materially different circumstances. In addition, none of the male employees were offered new jobs, but the plaintiff was given the option to transition to her same position with the acquiring company. This was a crucial distinction, because the subject severance policy prohibited severance pay in the event of a corporate transaction when the employee was offered employment by the acquiring entity. Thus, without valid comparators, there was no evidence that the defendant discriminated against the plaintiff with respect to severance because of her sex.