Discrimination Proof 101 — Indirect Evidence Prima Facie Case

Often I read a new decision by a federal court of appeals and the outcome seems to be such an obvious application of well-established principles of employment law that I wonder why the case was even appealed.
In significant part, this impression is created by the court, as it takes a large factual record and writes an opinion designed to make it appear that the decision followed clearly from application of established legal precedent to the facts. In reality, these cases usually are not nearly so simple.

In any event, these cases that break no new ground legally often present fine examples for teaching employment law basics. As I observed a few months ago, searches for basic information on evidence and proof of discrimination have led people to this Blawg.

Accordingly, today and in two subsequent posts I will use a relatively bland Seventh Circuit Court of Appeals decision from earlier this month to illustrate a few very basic points regarding proof of discrimination.

If you think you know it all already, consider it a quick review. There are also a few useful tips at the end.

Bear in mind that this is only one case from one Circuit, and there are many subtleties and variations on each point, and differences between the circuits on some.

This case involved race discrimination and retaliation claims by an employee of the Cook County Sheriff’s Department. The employee complained of discriminatory and retaliatory disciplinary suspensions for attendance violations (reporting late).

The Seventh Circuit affirmed the granting of the department’s motion, thus ending the case in favor of the employer.

The Seventh Circuit summarized the black-letter law on proof of discrimination as follows:

Discrimination may be proven either directly, such as by an admission by the defendant, or indirectly under the burden-shifting method established in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). . .
For his discrimination claim, [plaintiff] makes no argument relating to the direct method, opting instead to proceed only under the indirect method.
McDonnell Douglas

places the initial burden on the plaintiff to establish a prima facie case . . .

A prima facie case of discrimination is established if the employee provides evidence that:
(1) he is a member of a protected class;
(2) he was meeting his employer’s legitimate expectations at the time of the alleged adverse action;
(3) he was subjected to an adverse
employment action; and
(4) the employer treated similarly situated employees not in the protected class more favorably. . .

[O]nce the plaintiff has established his prima facie case, the burden shifts to the defendant to provide a legitimate, nondiscriminatory reason for the adverse employment action. . . .

If the defendant has provided a legitimate reason, the burden shifts back to the plaintiff to show that the defendant’s proffered reason is merely pretextual.

The sheriff’s department employee failed to establish a prima facie case that could withstand a summary judgment motion because he was unable to “show an issue of fact as to whether similarly situated employees were treated more favorably.”

In an affidavit, he identified by name several white male employees holding the same position and claimed they regularly came in late and left early without discipline from 1999 through 2003. The affidavit also stated: “Between November 1999 to June, 2002 the terms and conditions of my employment were significantly different and less favorable than for
white employees.”

The court said that “to survive summary judgment, [the employee] needed to do better than to make such broad-brushed, conclusory allegations.”

It characterized the evidence this way because the employee did not list instances in which the white men were late, indicate whether they had the same supervisor he had, and say how the terms and conditions of his employment differed.

The employee produced time sheets for the days he was allegedly late to work, claiming he was never late and that the time sheets were altered. The time sheets did indicate that on
several days he signed in to work on time, but someone subsequently wrote a later time, initialing the change.

However, the employee did not produce the time sheets
of the three white employees he claimed received preferential treatment.

He did submit some time sheets of other employees that showed the same supervisor altered the sign-in times of other employees who purported to sign in on time to reflect that they had been late. But the employee did not identify these people (or, apparently, indicate their race, an essential fact for comparison purposes).

Likewise, he provided no identifying facts for the several employees listed on the time sheets whose sign-in times were not subsequently altered. The court said: “Presumably these are the people who would have received the type of preferential treatment which [the employee] alleges, and the omission of them creates an evidentiary gap which [his] mere self-serving allegations are insufficient to fill.