In the

United States Court of Appeals

For the Seventh Circuit

No. 10-3916

MARK P. RODGERS,

Plaintiff-Appellant,

v.

JESSE C. WHITE, Secretary of State

of Illinois, et al.,

Defendants-Appellees.

Appeal from the United States District Court 

for the Central District of Illinois.

No. 08-3161—Michael P. McCuskey, Chief Judge.

ARGUED JULY 12, 2011—DECIDED SEPTEMBER 2, 2011

Before BAUER, CUDAHY, and TINDER, Circuit Judges.

CUDAHY, Circuit Judge. Mark Rodgers, a longtime employee of the Secretary of State’s office in Illinois, was

fired from his job but reinstated after arbitration. In this

litigation he claims that two white managers targeted

him for termination because he is black. The district

court granted summary judgment for the defendants.

Rodgers’s primary argument on appeal is that he and

two white coworkers engaged in the same alleged mis-
2 No. 10-3916

conduct, yet his white counterparts were treated less

harshly. Rodgers focuses on the coworker with the

same job title, but the other white employee, Rodgers’s

immediate supervisor, is the better comparator. We

have observed in many decisions that employees of

differing ranks usually make poor comparators, but the

rationale behind that general rule does not apply in this

case. We conclude, based on evidence that Rodgers engaged in the same conduct as his supervisor but was

disciplined more harshly, that a jury could reasonably

infer that Rodgers was discriminated against. We thus

vacate the judgment and remand for trial.

I. Background

The following account is drawn from the evidence

at summary judgment, as viewed in the light most favorable to Rodgers. See Sow v. Fortville Police Dep’t, 636

F.3d 293, 299-300 (7th Cir. 2011). When Rodgers was

fired in 2006, he was the only black employee in a crew

of more than 27 lawn-maintenance workers. He had

been a grounds worker for more than 20 years, most of

that time as a supervisor, and had been disciplined only

twice, receiving verbal warnings in 1989 and 1999. The

decision to fire Rodgers was made by Donna Fitts, the

director of his department, and Stephen Roth, the personnel director. Both are white. Their reasons for discharging Rodgers, which are set out in an August 2006

letter signed by Roth, all stemmed from two incidents.

The first incident involved the alleged misuse of state

property. In the Fall of 2005, the Inspector General for the
No. 10-3916 3

Secretary of State’s office issued a report summarizing

an investigation into allegations that Rodgers and his

immediate supervisor, Dave Rusciolelli, let crew members

borrow state equipment for personal use. According

to the report, the practice was discovered when a temporary employee injured himself retrieving a state-owned

aerator from a crew member’s house. The crew member

insisted that both Rodgers and Rusciolelli had known

he borrowed state equipment and, in fact, embraced

an “open door” policy regarding personal use of state

equipment. Rodgers and Rusciolelli denied the crew

member’s allegations, though, according to the Inspector General, Rodgers gave shifting explanations:

Rodgers initially said he thought the temporary employee had been injured while getting the aerator from

a storage area, but later he told an investigator that

he sent the temporary employee and a regular crew

member to retrieve the aerator as soon as he heard that

an employee had taken it home. The investigator

reported that Rodgers had become irritated when

asked about this apparent discrepancy, which Rodgers

attributed—truthfully, we must assume—to his initial

confusion about the investigator’s questions. Rodgers

also had told the investigator that the temporary

employee ascribed his injury to lifting weights, a statement that the young man denied making. At this stage,

of course, we must credit Rodgers’s version.

In response to the Inspector General’s report, the personnel department initiated discipline against the employees involved. The crew member who borrowed the
4 No. 10-3916

aerator was fired, in part because he borrowed it, but

principally because management discovered around this

same time that he lacked a valid driver’s license, which

was a condition of his employment. That employee contested his discharge, but lost. For Rodgers, the personnel

department proposed an 18-day suspension, yet for

Rusciolelli, who is white, only a 3-day suspension was

contemplated. For reasons not disclosed in the record,

neither proposed suspension was ever implemented,

and, so it appeared at the time, the matter was dropped.

The second incident came to light in early 2006 after

Fitts, who was critical of Rusciolelli’s management of

Rodgers, was appointed as the acting director of their

department. In January 2006, Fitts received from

Rodgers and Rusciolelli time slips for the month of December. Rusciolelli alone was responsible for completing

these time slips, but he had asked Rodgers to help out,

which Rodgers had agreed to do. Fitts thought that the

December time slips were missing necessary information, and so she and Roth began to investigate.

What they found is that crew members were requesting

leave that was not shown in the payroll system as earned.

It turned out that Fitts’s predecessor, Cecil Turner, had

authorized Rusciolelli to give workers “comp time” for

their overtime hours after the Secretary of State imposed

a moratorium on overtime pay. Turner had proposed,

and gained union approval for, this system because

some tasks, such as snow removal, could not always

be completed during normal working hours. Under

Turner’s system the overtime hours were recorded infor-
No. 10-3916 5

Turner was ousted and replaced with Fitts after it was 

discovered that he knew, and had tried to cover up, that three

janitors were padding their hours. He was convicted in

federal court on charges of wire fraud and lying to the FBI.

See United States v. Turner, 551 F.3d 657, 659-61 (7th Cir. 2008).

There is no suggestion that Turner’s policy of awarding compensatory time was illegal or beyond his authority to implement,

but Fitts says that her timekeeping investigation was directed

at “straightening up a department that was under a major

investigation for errors.”

mally “off the books,” and employees used personal

time to draw against the banked overtime.

A few days after receiving the December 2005 time

slips from Rusciolelli and Rodgers, Fitts met with them

to discuss timekeeping. She laid out what she thought

was the correct procedure for completing time slips,

and she ordered the two men to stop recording overtime

“off the books” and to start submitting all overtime

requests to her two days in advance. She gave the

same order to Robert Deffenbaugh, a white crew supervisor also under Rusciolelli’s supervision. But Fitts did not

bar overtime work, and from the record it appears that

she continued Turner’s practice of awarding compensatory time, though with the understanding that

formal records would be kept of the overtime hours.

Rusciolelli and Rodgers stopped using the “off the books”

system immediately, but Fitts still wanted Rodgers to

redo his December time slips to conform to her newly

implemented procedure. She says that he failed to

properly complete the slips even after she returned them
6 No. 10-3916

to him several times; Rodgers says that he couldn’t complete the forms because Fitts took away his computer,

where the relevant data was stored.

Rusciolelli and Rodgers also told Fitts that Rodgers

had retained handwritten records of his crew’s past

overtime hours. Fitts asked for copies, and Rodgers

provided what he thought was a complete set (though

he later found additional overtime records in a filing

cabinet outside his office). During February 2006 a

liaison from the personnel department tallied the uncompensated overtime for Rodgers’s crew and mistakenly

concluded that the workers had taken more than

that amount of hours as personal time. Rodgers

recognized the calculation to be mistaken and refused

to sign off on it, as did most of his crew. The next day,

March 1, the liaison told Rodgers that Fitts wanted to

meet with him and his crew that afternoon, more than

an hour after Rodgers’s shift was to end. The liaison

asked him to notify his crew, and Rodgers contacted

every member he could locate on site. But Rodgers

himself skipped the meeting because he wasn’t told

that it was mandatory or whether overtime had been

approved for his attendance. Fitts had no authority, she

admits, to order an employee to attend an after-hours

meeting without first approving overtime, which she

had not done.

Fitts called in Rodgers for another meeting—also after

hours but this time with overtime approved—in late

March. Roth also was present, and Rodgers brought

along a union representative. During the meeting Fitts
No. 10-3916 7

demanded, and Rodgers relinquished, his original time

slips from December, which included the files he had

overlooked when he gave copies to Fitts in January.

This March meeting was the last time that Fitts asked

Rodgers for records. Later, after Rodgers had been fired,

an independent auditor concluded that his records of

the crew’s overtime were accurate.

Although this allegedly “inaccurate reporting of time”

was one reason given for Rodgers’s discharge, no

other employee involved in the incident was punished

so severely. Rusciolelli, for his perceived role in the

timekeeping problems and equipment misuse, was demoted to yard work. Deffenbaugh, the other crew supervisor, was not disciplined; during discovery Fitts explained the different treatment by saying that Rodgers

alone had failed to turn over all of his records when

asked, but when pressed she admitted that she never

asked Deffenbaugh to turn over his records. Fitts had

focused on Rodgers and Rusciolelli, she said, because

they sent her incomplete time slips, and she never

thought to investigate Deffenbaugh’s records. According

to the department liaison, Deffenbaugh’s crew never

protested the department’s calculations of their time.

The parties describe one more event that, though not

given as a reason for Rodgers’s discharge, does show

further friction between Fitts and Rodgers. Historically,

Rodgers had raised and lowered the flag on top of the

capitol building when needed. That task was considered

dangerous because of the location of the flagpole, and

thus earned him an annual stipend. In April 2006, how-
8 No. 10-3916

ever, Fitts decided in coordination with the union to

rotate flag duty among crew members who volunteered,

for a fixed rate per assignment. When the time came

to lower the flag, the entire crew, including Rodgers,

declined the task. Fitts threatened to discipline Rodgers

if he didn’t volunteer, but she threatened no one else.

Eventually, another employee agreed to lower the flag,

and Rodgers avoided discipline for his refusal.

In May 2006 Fitts wrote a memorandum to Roth recommending that Rodgers be fired. As grounds for termination, she asserted that Rodgers had (1) allowed abuse

of state equipment and then failed to cooperate with the

Inspector General’s investigation, and (2) improperly

recorded overtime and refused to assist her effort to

rectify the problem. Roth then sent Rodgers a letter

listing formal charges against him. That communication

goes well beyond the content of Fitts’s memorandum

and accuses Rodgers of (1) lying about his knowledge

of the aerator misuse and the temporary employee’s

injury, (2) allowing the misuse of state equipment,

(3) improperly completing the December time slips even

after they were returned to him for reworking, (4) being

“complicit with” Rusciolelli in failing to “accurately

report and record” compensatory time, and (5) skipping

the March meeting and not telling his crew to attend.

Rodgers’s union representative wrote a rebuttal

denying the charges, and Fitts responded that the

rebuttal lacked evidentiary support. Roth then fired

Rodgers.

Rodgers filed a grievance challenging his discharge,

and the grievance led to arbitration. The arbitrator con-
No. 10-3916 9

cluded that the Secretary of State’s office had failed to

produce clear and convincing evidence of all but one of

the charges against Rodgers. (The arbitrator faulted

Rodgers for not attending the March 2006 meeting and

concluded that he should have gone to the meeting and

then filed a grievance. Otherwise, though, the arbitrator

rejected every charge leveled against Rodgers.) Following

arbitration, Rodgers was reinstated with back pay.

Meanwhile, Rodgers brought this suit in the district

court against the Secretary of State under Title VII of

the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e–2000e-17,

and against Fitts and Roth under 42 U.S.C. § 1981 and

§ 1983. In moving for summary judgment, the defendants argued that Rodgers had no direct evidence

of discrimination and no circumstantial evidence of

suspicious timing or racially charged commentary surrounding his termination. They also contended that

Rodgers could not prove that another similarly situated

employee had received more favorable treatment

because, in their view, no other employee had faced

as many charges of improper behavior.

In opposing the motion, Rodgers argued that indeed

he received worse treatment than similarly situated

white employees. In particular, he asserted, Rusciolelli

and the white crew leader, Deffenbaugh, were both

treated more leniently despite engaging in the same

alleged misconduct. They, too, had participated in

Turner’s overtime system, but Rusciolelli was demoted,

not fired, and Deffenbaugh wasn’t even asked to turn

over his records for review. What’s more, said Rodgers,
10 No. 10-3916

Rusciolelli had been accused of adopting an “open

door” policy for state equipment, and yet the equipment

policies of Deffenbaugh, his white subordinate, were not

even examined.

The district court concluded that Rodgers had failed

to produce enough evidence to survive summary judgment. According to the court, Rodgers had no direct

evidence of discrimination, not even “suspicious timing

of events, ambiguous statements made by Roth or Fitts,

or behavior toward or comments directed at other employees in the protected group.” Moreover, the court

reasoned, Rodgers hadn’t proven that white employees

received systematically better treatment. In fact, the

court said, Rodgers had not shown that any similarly

situated white employee received better treatment

than him. This failure alone, the court continued,

doomed Rodgers’s attempt to show discrimination

using the indirect method established in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973). The court

accepted the premise that Rodgers was similarly situated to Rusciolelli and Deffenbaugh in regard to the

timekeeping issue. The court reasoned, however, that

Rodgers was required to identify a coworker who

was “similarly situated regarding both reasons for the

termination.” In concluding that Rodgers had not done

so, the court overlooked Rodgers’s contention that he

also was similarly situated to both Rusciolelli and

Deffenbaugh concerning the misuse of state property.

The court declined to address the other elements of

the indirect method.
No. 10-3916 11

II. Analysis

In challenging the grant of summary judgment, Rodgers

argues that he produced sufficient evidence of discrimination under both the direct and indirect methods. We

disagree about the direct method. Rodgers contends

that certain “bits and pieces” of circumstantial evidence—including that he was the only black member of

his crew, that an arbitrator determined that he was

fired without just cause, and that he alone was ordered

to lower the flag—raise an inference of discriminatory

intent. His argument is unpersuasive, however, because

the evidence does not point directly to a discriminatory

reason for his termination, as it must. See Van Antwerp

v. City of Peoria, Ill., 627 F.3d 295, 298 (7th Cir. 2010);

Petts v. Rockledge Furniture LLC, 534 F.3d 715, 720

(7th Cir. 2008). He also contends that the defendants

systematically treated white employees more favorably. Although, as we discuss later, Rodgers does have

evidence that Rusciolelli and Deffenbaugh received better

treatment, this evidence falls short of showing that white

employees received better treatment on a regular and

repeated basis. See Silverman v. Bd. of Educ. of City of Chi.,

637 F.3d 729, 734 & n.2 (7th Cir. 2011).

Rodgers’s stronger argument relies on the indirect

method of proving discrimination, which applies equally

to discrimination claims under Title VII, § 1981, and § 1983.

See Egonmwan v. Cook Cnty. Sheriff’s Dep’t, 602 F.3d 845,

850 n.7 (7th Cir. 2010). To survive summary judgment

under this method, a plaintiff must produce evidence

that he (1) belongs to a protected class, (2) met his em-
12 No. 10-3916

ployer’s legitimate performance expectations, (3) suffered

an adverse employment action, and (4) was treated worse

than similarly situated employees outside the protected

class. McDonnell Douglas, 411 U.S. at 802; Egonmwan, 602

F.3d at 850. If the plaintiff satisfies these elements, he

must then prove that any legitimate, nondiscriminatory

reasons offered for the adverse action are pretext.

McDonnell Douglas, 411 U.S. at 802, 804; Egonmwan, 602

F.3d at 850. Because the first and third elements of the

prima facie case are uncontested, Rodgers focuses on

showing that he performed his job satisfactorily and yet

was treated more harshly than his white counterparts.

When a black employee produces evidence that he was

disciplined more severely than white employees who

shared similar shortcomings, the second and fourth

elements of the indirect method merge. See Luster v. Ill.

Dep’t of Corr., No. 09-4066, 2011 WL 2857262, at *3 (7th

Cir. July 19, 2011); Weber v. Univs. Research Ass’n, Inc., 621

F.3d 589, 594 (7th Cir. 2010); Elkhatib v. Dunkin Donuts,

Inc., 493 F.3d 827, 831 (7th Cir. 2007); Adams v. Wal-Mart

Stores, Inc., 324 F.3d 935, 940 (7th Cir. 2003). Employers

“cannot intentionally discipline poor employees more

severely on the basis of race.” Luster, 2011 WL 2857262,

at *3. Thus, Rodgers made out a prima facie case if his

evidence would establish that the defendants extended

leniency to similarly situated white employees who

engaged in similar conduct. See Elkhatib, 493 F.3d at 831;

Adams, 324 F.3d at 940. The similarly situated analysis

requires a flexible, common-sense inquiry that asks

“whether the other employees’ situations were similar

enough to the plaintiff’s that it is reasonable to infer, in
No. 10-3916 13

the absence of some other explanation, that the

different treatment was a result of race or some

other unlawful basis.” Luster, 2011 WL 2857262, at *3;

see McGowan v. Deere & Co., 581 F.3d 575, 579-80 (7th

Cir. 2009); Elkhatib, 493 F.3d at 831.

Throughout this litigation Rodgers has devoted the

most attention to Deffenbaugh, since they share the

same job title. But Rodgers also made out a strong case

that the defendants unfairly focused on his perceived

shortcomings and disciplined him more severely than

Rusciolelli, and Rusciolelli’s status as Rodgers’s supervisor does not diminish the strength of this comparison.

Many times we have acknowledged that supervisors

usually make poor comparators for plaintiffs claiming

employment discrimination. E.g., Patterson v. Ind. Newspapers, Inc., 589 F.3d 357, 366 (7th Cir. 2009); Burks v. Wis.

Dep’t of Transp., 464 F.3d 744, 751 (7th Cir. 2006); Patterson

v. Avery Dennison Corp., 281 F.3d 676, 680 (7th Cir. 2002).

But usually does not mean always, and we have not

held that a supervisor is never an apt comparator. Supervisors typically make unrealistic comparators because,

as relevant to the issues in a particular case, employees

of higher rank commonly have different job duties or

performance standards. E.g., Burks, 464 F.3d at 751; Keri

v. Bd. of Trs. of Purdue Univ., 458 F.3d 620, 626 (7th

Cir. 2006); Ajayi v. Aramark Bus. Servs., Inc., 336 F.3d 520,

532-33 (7th Cir. 2003). And especially in situations

where the plaintiff alleges discriminatory promotional

practices, it is difficult for the plaintiff to show that he

deserved to be promoted over an employee of a higher

rank, who usually possesses more experience. E.g., Hudson
14 No. 10-3916

v. Chi. Transit Auth., 375 F.3d 552, 561 (7th Cir.

2004); Patterson, 281 F.3d at 680; Hoffman-Dombrowski v.

Arlington Int’l Racecourse, Inc., 254 F.3d 644, 651 (7th Cir.

2001). Yet when uneven discipline is the basis for a

claim of discrimination, the most-relevant similarities

are those between the employees’ alleged misconduct,

performance standards, and disciplining supervisor.

See Weber, 621 F.3d at 594; Amrhein v. Health Care Serv.

Corp., 546 F.3d 854, 860 (7th Cir. 2008); Humphries v.

CBOCS West, Inc., 474 F.3d 387, 404-05 (7th Cir. 2007);

Adams, 324 F.3d at 940; Snipes v. Ill. Dep’t of Corr., 291

F.3d 460, 463 (7th Cir. 2002); Radue v. Kimberly-Clark Corp.,

219 F.3d 612, 617-18 (7th Cir. 2000). Formal job titles and

rank are not dispositive; an employer cannot “insulate

itself from claims of racial discrimination” by making

formalistic distinctions between employees. Johnson v.

Zema Sys. Corp., 170 F.3d 734, 743 (7th Cir. 1999);

see Gorzynski v. Jetblue Airways Corp., 596 F.3d 93, 109 n.7

(2d Cir. 2010); Lee v. Kan. City S. Ry. Co., 574 F.3d 253, 260-

61 (5th Cir. 2009); Filar v. Bd. of Educ. of City of Chi., 526

F.3d 1054, 1061-62 (7th Cir. 2008); Boumehdi v. Plastag

Holdings, LLC, 489 F.3d 781, 791 (7th Cir. 2007); Bellaver

v. Quanex Corp., 200 F.3d 485, 494 (7th Cir. 2000). Thus,

when a plaintiff and his supervisor were accused of

making similar mistakes, were equally responsible for

avoiding those mistakes, and were disciplined by the

same superior, the plaintiff can make a realistic comparison with his supervisor for purposes of establishing

a prima facie case of discrimination. See Filar, 526

F.3d at 1062 (comparing plaintiff to employees with

more seniority, when seniority status was discretionary);
No. 10-3916 15

Lathem v. Dep’t of Children & Youth Servs., 172 F.3d 786, 793

(11th Cir. 1999) (comparing plaintiff to direct supervisor

accused of same misconduct); Johnson, 170 F.3d at 743-44

(comparing two intermediate managerial employees).

The defendants concede that the difference in treatment between Rodgers and Rusciolelli was “pretty big,”

and they do not try to distinguish the two men on the

basis of rank. Instead, echoing the district court, the

defendants assert that Rodgers made more mistakes

and engaged in a greater degree of misconduct than

Rusciolelli and, on that basis, stands apart. Embracing

this premise, however, would require us to disregard the

evidence presented at summary judgment. Indeed, just

reading the reasons Fitts and Roth gave for firing

Rodgers is enough to dispel any notion that Rodgers was

accused of more-serious shortcomings than Rusciolelli. 

To start, we are at a loss to understand the defendants’

insistence on branding Rodgers more blameworthy

than Rusciolelli for the aerator incident. What the

evidence shows is that Fitts and Roth relied entirely on

the Inspector General’s report in concluding that Rodgers

had allowed state property to be used for private gain

and then, when this “open door” policy was questioned,

tried to evade responsibility by lying to investigators.

But if the defendants’ assumption about Rodgers was

sincere, how could they have viewed Rusciolelli as less

culpable? The Inspector General’s information came

from a single employee who accused both Rodgers

and Rusciolelli of endorsing private use of state equipment, and both men denied the accusation. The Inspector
16 No. 10-3916

General did not exonerate Rusciolelli, and since he supervised Rodgers, the sensible conclusion would be that

Rusciolelli bore the greater responsibility for adopting

a misguided policy of allowing maintenance workers to

borrow state-owned equipment. The defendants have

never contended that they legitimately held Rodgers to

a higher standard than Rusciolelli vis-à-vis enforcing

legitimate equipment policies, and yet Rusciolelli, the

one with the greater authority to enforce or alter those

policies, was demoted, while Rodgers was fired. Moreover, it is specious to rejoin, as the defendants do,

that Rodgers was less cooperative with the Inspector

General’s investigation than Rusciolelli. The defendants

demoted Rusciolelli in part because they believed the

allegation that the “open door” policy had his blessing,

which Rusciolelli flatly denied when interviewed by

investigators. So the defendants necessarily concluded that

Rusciolelli, like Rodgers, had lied during the Inspector

General’s probe, and yet they gave no reason for

treating Rusciolelli’s dishonesty more leniently than

Rodgers’s.

Even more perplexing is the defendants’ contention

that Rodgers should receive the lion’s share of the blame

for the perceived timekeeping problems. The defendants

insist that Rodgers was disciplined, not for using the “off

the books” method of recording compensatory time, but

for keeping time records which Fitts and Roth thought

were incomplete and inaccurate. Once again, though, how

does that belief, if sincere, differentiate Rodgers from

Rusciolelli? If we blind ourselves to their actual job

duties, then, at most, Rodgers shared responsibility for
No. 10-3916 17

the perceived paperwork errors, since he and Rusciolelli

jointly submitted the December time slips to Fitts along

with Rodgers’s supporting documentation. The defendants, though, have never explained how timekeeping

errors even concerned Rodgers. As Rusciolelli makes

clear in an affidavit, timekeeping and attendance

records were solely his responsibility. Rodgers had

assisted with timekeeping, a duty outside of his job

description, as a favor so that Rusciolelli would have

more time to focus on other matters. The defendants,

then, are effectively maintaining that they fired Rodgers

for poorly performing a task that was not a legitimate

employment expectation, while retaining the white employee whose job it was to perform that very task. Rodgers

was a volunteer, and the defendants cannot hide

behind the pretense that they did not know the duties of

a position they created.

What’s more, when Deffenbaugh is added to the

mix, the explanation that sloppy recordkeeping was a

principal reason for firing Rodgers is even more suspect. Deffenbaugh also used Turner’s “off the books”

timekeeping method, but the only reason Fitts gave for

not reviewing his records—even after she personally

instructed him to stop using Turner’s system—is that

Rodgers drew her attention by tendering his records.

That explanation is no answer at all; Rodgers tendered

his records only because he was directed to do so by

Fitts, who did not make the same demand of Deffenbaugh. It is no surprise, then, that mistakes were found

only in Rodgers’s records, since his were the only

records reviewed. We note, however, that, although the
18 No. 10-3916

defendants’ treatment of Deffenbaugh is relevant to

our analysis, Rodgers could not have established a prima

facie case of discrimination based on a comparison to

Deffenbaugh alone. Deffenbaugh, unlike Rusciolelli, was

not directly accused of failing to enforce equipment

policies, so we cannot realistically characterize the two

as sharing a “comparable set of failings.” See Haywood

v. Lucent Techs., Inc., 323 F.3d 524, 530 (7th Cir.

2003); accord Lucas v. PyraMax Bank, FSB, 539 F.3d 661,

667 (7th Cir. 2008); Faas v. Sears, Roebuck & Co., 532 F.3d

633, 642-43 (7th Cir. 2008); Burks, 464 F.3d at 751.

In the end, only Rodgers’s absence from the “mandatory” meeting and the accusation that he failed to notify

his crew of that meeting arguably distinguish him from

Rusciolelli. But, at a minimum, there remains a material

question of fact about whether Rodgers’s attendance

was a legitimate employment expectation. The liaison

who contacted him about the same-day, after-hours

meeting did not indicate that Fitts had approved

overtime, and yet Fitts herself had mandated that all

overtime was to be personally approved by her two

days in advance. And though her approval of overtime

for the meeting might seem implicit in her decision to

schedule it, Fitts admitted in her deposition that, in fact,

she had no authority to order Rodgers to attend the

meeting without agreeing to pay him for attending,

which she had not done. Moreover, as for Rodgers’s

purported failure to inform his crew about the meeting,

he testified, and the defendants did not contradict, that

he succeeded in telling all but one crew member—who

was not at work that day—about the impromptu
No. 10-3916 19

meeting, even though he was given only a few hours to

accomplish the task. Some of the crew members who

knew about the meeting did not attend, but, as far as this

record shows, the defendants proceeded to fire Rodgers

without having any factual support for their accusation

that he failed to tell the absent crew members about

the meeting.

For these reasons, we are persuaded that Rodgers

presented enough evidence that he was similarly

situated to Rusciolelli to prove a prima facie case under

the indirect method. And on this record, his evidence

establishing a prima facie case also defeats the defendants’ claim that their reasons for firing him were

nonpretextual. The analysis of the prima facie case and

pretext often overlap, e.g., Everroad v. Scott Truck Sys.,

Inc., 604 F.3d 471, 477-78 (7th Cir. 2010); Scruggs v. Garst

Seed Co., 587 F.3d 832, 838 (7th Cir. 2009); Adelman-Reyes

v. Saint Xavier Univ., 500 F.3d 662, 665 (7th Cir. 2007), as

they do here. Rodgers, of course, needed evidence

tending to show that the defendants’ proffered reasons

for his termination were not just erroneous, but were

“ ‘factually baseless, were not the actual motivation for

the discharge in question, or were insufficient to

motivate the discharge.’ ” Gordon v. United Airlines, Inc.,

246 F.3d 878, 888-89 (7th Cir. 2001) (quoting Adreani v.

First Colonial Bankshares Corp., 154 F.3d 389, 395 (7th Cir.

1998)); see Humphries, 474 F.3d at 407. Rodgers met that

burden by showing that the defendants’ proffered reasons

for singling him out were all disingenuous. At summary

judgment Rodgers produced evidence that, except for

missing a meeting, Rusciolelli engaged in the same
20 No. 10-3916

alleged misconduct and committed the same purported

recordkeeping mistakes and yet received only a demotion. The evidence also shows that the defendants

hounded Rodgers, the lone black employee, about purported timekeeping errors while ignoring both Deffenbaugh, whose records were not even examined, and

Rusciolelli, who admitted that timekeeping was solely

his responsibility. And as for the March meeting,

Fitts admitted that she had no authority to demand

attendance from Rodgers or his subordinates, so that

reason for his termination, like the others, is “unworthy

of credence.” See Reeves v. Sanderson Plumbing Prods.,

Inc., 530 U.S. 133, 143 (2000); Tex. Dep’t of Cmty. Affairs v.

Burdine, 450 U.S. 248, 256 (1981). Considering all this evidence together, a jury reasonably could conclude that

the actual reason the defendants fired Rodgers was his

race. See Hasan v. Foley & Lardner LLP, 552 F.3d 520, 530-31

(7th Cir. 2008); Rudin v. Lincoln Land Cmty. Coll., 420 F.3d

712, 726-27 (7th Cir. 2005); Gordon, 246 F.3d at 890-92. 

Accordingly, the grant of summary judgment in favor

of the defendants is vacated, and the case is remanded

to the district court for trial.

9-2-11