On February 22, 2019, the U.S. Court of Appeals for the Seventh Circuit reversed the district court’s grant of summary judgment in favor of a defendant-employer in a Title VII race and national origin discrimination lawsuit. Silva v. State of Wisconsin, Department of Corrections, et al., No. 18-2561 (7th Cir. Feb. 22, 2019). Under Title VII of the Civil Rights Act of 1964 (“Title VII”), it is unlawful for an employer to discriminate against an employee because of the employee’s race, sex, religion, color, or national origin. The plaintiff claimed that his employer terminated his employment because of his race and national origin, in violation of Title VII. As evidence of discrimination, the plaintiff raised disparate discipline and pretext.

The plaintiff claimed that the defendant gave him a more severe punishment than a similarly situated coworker outside of his protected classes, for the same alleged misconduct. He also argued that the defendant’s proffered reasons for the termination of his employment were merely pretext to cover the defendant’s discriminatory discipline. Employment discrimination may be inferred when an employer treats an employee in a protected class less favorably than it treats a similarly situated employee outside of that protected class. To determine whether employees are similarly situated, courts consider whether the other employees’ situations were similar enough to the plaintiff’s that it is reasonable to infer, in the absence of some other explanation, that the different treatment was a result of race or some other unlawful basis. In cases of disparate discipline, where the plaintiff alleges that the employer disciplined him more harshly than his comparator, the most relevant similarities are those between the employees’ alleged misconduct, performance standards, and disciplining supervisor, rather than job description and duties. The critical question is whether the employees engaged in conduct of comparable seriousness. Conduct is comparably serious if it violates the same workplace rule or is of a similar nature. Whether a plaintiff and his comparator employee were charged with violating the same set of workplace rules is not dispositive. The conduct need only be of a similar nature. The plaintiff and his comparator employee both used force on inmates who were violating rules in order to restrict their movement; and neither inmate was injured. The Seventh Circuit concluded that the use of force incidents were of a similar nature. Consequently, a reasonable jury could conclude that the plaintiff and the comparator engaged in comparably serious conduct, but only the plaintiff was discharged in connection with the incidents.

The question then becomes whether there is a legitimate nondiscriminatory reason for the defendant’s decision to discharge the plaintiff for his use of force, but only to give the other employee a one-day suspension for his use of force. An inference of employment discrimination may be raised when an employer’s proffered nondiscriminatory reason for taking an adverse job action against an employee was pretextual, i.e., a lie or phony reason. To establish pretext, a plaintiff may identify weaknesses, implausibilities, inconsistencies, or contradictions in an employer’s proffered reasons for its allegedly discriminatory employment actions, such that a reasonable person could find the reasons unworthy of belief. Pretext does not arise when an employer honestly believed its proffered reason for its adverse employment action, even if the reason was inaccurate or unfair. However, a plaintiff would prevail if she demonstrates that the employer’s stated reason was not the real reason for the employment action. An employer’s shifting and inconsistent reasons raise an inference of pretext. The Seventh Circuit concluded that a reasonable jury could find that the defendant’s “evolving explanations,” including one that never surfaced until its summary judgment motion, support an inference of pretext. The defendant’s reasoning was also factually unfounded, to the extent that a reasonable jury could find that the defendant’s reasoning was too detached from the true facts involved in the two use of force incidents. From that finding, a jury could infer that the defendant’s proffered reasons were pretextual. Therefore, triable issues of fact precluded summary judgment, including whether the proffered nondiscriminatory reasons that the defendant gave for discharging the plaintiff were pretextual, and whether the real reason that the plaintiff was discharged (instead of just receiving a suspension) was intentional unlawful employment discrimination.