Employment Law Daily Employee fired for safety rule violation failed to show he was similarly situated to other workers
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Friday, October 11, 2019

Employee fired for safety rule violation failed to show he was similarly situated to other workers

By Tulay Turan, J.D.

The court found the employee failed to establish a prima facie case of discrimination because he provided no information at all about the eight individual employees he alleged were similarly situated.

A material handler who was fired for a safety rule violation cannot proceed with his ADEA age and retaliation claims because he failed to present evidence of any similarly situated employee outside his protected class who was treated more favorably, ruled the Seventh Circuit in affirming summary judgment in favor of the employer. In this instance, the employee did not provide any information, such as the employees’ names, work history, performance reviews, or their ages, that would allow a factfinder to determine these individuals were indeed similarly situated (McDaniel v. Progress Rail Locomotive, Inc., October 9, 2019, St. Eve, A.).

Complained about overtime policies. The employee had worked for Progress Rail, a manufacturer of diesel-electric locomotives and diesel-powered engines, for 12 years as a material handler. He was responsible for loading and unloading materials of varying size and weight, performing inventory counts, and assembling diesel engine kits. In August 2016, he complained to his supervisor’s manager that his supervisor was not complying with the company’s overtime equalization policies and was giving overtime to “the younger workers.” The manager told the two to work it out.

Suspensed for cell phone use. At the end of August 2016, the supervisor issued a disciplinary notice to the employee for using his cell phone while on work equipment in violation of the company’s safety rules. Although he denied talking on his phone while working, he admitted during the investigatory process that his phone was “on top of the truck,” which was still a violation of safety rules. He received a one-day suspension as discipline for this infraction.

Terminated for violating lifting rule. In February 2017, the employee suffered a serious hand injury, crushing one of his fingers, while attempting to move a 106-pound piece of machinery by hand to extract a piece of plastic underneath it. After investigative interviews and disciplinary hearings in which the employee admitted trying to lift the equipment in violation of the company’s safety rules, the company terminated his employment for the violation. He was 55 years old at the time of his termination.

Lower court proceedings. The employee filed his charge of discrimination with EEOC on May 19, 2017, and the EEOC issued a right to sue letter on August 8, 2017. The employee timely filed his complaint on November 1, 2017, alleging claims for age discrimination and retaliation under the ADEA, as well as retaliatory discharge under Illinois state law. The district court granted summary judgment to Progress Rail on all the claims. He now appeals his two ADEA claims.

No evidence of similarly situated employees. Applying the McDonnell Douglas framework, the court found the employee failed to establish a prima facie case because he did not satisfy the fourth element, the similarly situated prong. He argued the eight other material handlers under his supervisor qualified as similarly situated employees. However, he did not provide any information that would allow a factfinder to determine these individuals were indeed similarly situated. He did not submit the employees’ names, work history, performance reviews, or their ages. In fact, he provided no information at all about the eight individual employees he alleged were similarly situated. He speculated these other employees were younger than he was, but he supplied no information for the court to verify his age relative to theirs. Thus, the appeals court agreed with the district court that his conclusory assertion about similarly situated employees was insufficient to raise an issue of fact and could not survive summary judgment.

Applying the holistic approach set forth in Ortiz v. Werner Enters, Inc., the Seventh Circuit found the employee provided no evidence to raise an issue of fact that he experienced discipline because of his age. His complaint about his supervisor’s compliance with the overtime policy and his discipline for cell phone usage occurred in the same month, making the timing suggestive of discrimination. However, the record contained no evidence that Progress Rail’s decisions to suspend and terminate him were due to his age. Rather, the record demonstrated that Progress Rail suspended him because he violated the cell phone policy and terminated him because he violated the lifting policy. Indeed, the employee admitted to having his cell phone on top of the truck and admitted that he “lifted” the shaft.

The employee’s cat’s paw theory also failed. He did not present evidence of his supervisor’s age-based animus and, even if he had, there was no evidence such bias proximately caused his suspension or termination.

Retaliation claim. The court also found the employee failed to establish a prima facie case for retaliation. Like his discrimination claim, he did not present evidence of similarly situated employees. “[The employee] did not present evidence of a comparator who similarly violated Progress Rail’s cell phone policy or lifting policy—or any safety rule, for that matter—and also complained about overtime, but received better treatment,” the court wrote.

Again applying Ortiz, the court found the employee failed to produce any evidence to raise an issue of fact as to the causal connection between his protected activity and his termination. Accordingly, the court affirmed summary judgment in Progress Rail’s favor.

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