Crawford, Tisa N. v. IN Harbor Belt ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-2825
TISA N. CRAWFORD,
Plaintiff-Appellant,
v.
INDIANA HARBOR BELT RAILROAD COMPANY,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 C 2977—Samuel Der-Yeghiayan, Judge.
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ARGUED JULY 11, 2006—DECIDED AUGUST 23, 2006
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Before BAUER, POSNER, and KANNE, Circuit Judges.
POSNER, Circuit Judge. Tisa Crawford brought this Title
VII suit against her former employer, lost when the judge
granted summary judgment for the defendant, and appeals.
She worked as a “conductor”—the job that used to be called
“trainman” or “brakeman”—which meant operating the
switches that move the tracks, coupling and uncoupling the
rail cars, and warning the engineers about derailment
dangers. She was fired after receiving eight reprimands in
her first year of work: four reprimands for not reporting for
duty, two for failing to properly stabilize a boxcar (and in
one of these incidents the boxcar partially derailed and was
2 No. 05-2825
damaged), one for failing to wear safety glasses, and
another one for riding on a rail car in an unsafe manner. She
is a black woman—the only one employed by the defen-
dant—and claims that she was discharged because of her
race and sex.
Obviously she was not a model employee. But if equally
bad or worse white men employed by the defendant as
conductors (no white women were employed in that
position) were retained despite deficiencies as serious as
hers, and the employer failed at the summary judgment
stage to offer a nondiscriminatory explanation for the
difference in treatment or it did but the plaintiff presented
evidence that the explanation was a pretext (that is, false),
then she was, prima facie, a victim of discrimination. Flores
v. Preferred Technical Group, 182 F.3d 512, 514-15 (7th Cir.
1999); Bush v. Commonwealth Edison Co., 990 F.2d 928,
931 (7th Cir. 1993); see also Rodgers v. U.S. Bank, N.A., 417
F.3d 845, 852-53 (8th Cir. 2005). (“Prima facie” because the
defendant might at trial be able to show that the plaintiff
was not fired because of her race. All that “prima facie”
means is strong enough to preclude summary judgment
for the defendant. Kovacevich v. Kent State University, 224
F.3d 806, 821 (6th Cir. 2000).)
But this assumes that the better-treated workers with
whom the plaintiff compares herself are a representative
sample of all the workers who are comparable to the
plaintiff. Bush v. Commonwealth Edison Co., supra, 990 F.2d at
931-32; see also Turgeon v. Premark Int’l, Inc., 87 F.3d 218,
221-22 (7th Cir. 1996). The plaintiff must not pick and
choose. We know that the defendant employs about 200
conductors and that it fired 10 of them, besides the plaintiff,
for safety and other infractions in a two-year period that
includes the one-year period in which the plaintiff worked.
The plaintiff’s lawyer insisted at argument that two other
No. 05-2825 3
conductors whose infractions were as serious as the plain-
tiff’s were not fired. Suppose then that 12 male employ-
ees—the 10 who were fired and the 2 who were not—were
comparable to the plaintiff; then 5/6 of the comparable
males were treated as badly as the plaintiff. This means that
100 percent of the “bad” black female workers were fired
and 83 percent of the “bad” white males, but since there was
only one worker in the first class, namely the plaintiff, the
percentage could not be less than 100 percent. Since perfect
enforcement of company rules is hardly to be expected, the
fact that “only” 83 percent of the “bad” white men were
fired does not support an inference that the defendant treats
white men better than black women.
The plaintiff says that the number of comparable white
men who were treated better than she was 10 rather
than 2—the 2 were just the most egregiously bad of the bad
male workers, and if that is right then the percentage of bad
men who were fired was only 50 percent, and this begins to
suggest that men were treated more leniently than the
plaintiff was. But only if the men who were retained really
were no better than the plaintiff, a judgment dependent
on their being similarly enough situated to her to make
comparison meaningful.
There has been a tendency in our cases, and in those of
some other circuits as well (a trend resisted, however, by the
Eighth Circuit, see Rodgers v. U.S. Bank, N.A., supra, 417 F.3d
at 851-52 (8th Cir. 2005); Wheeler v. Aventis Pharmaceuticals,
360 F.3d 853, 857 (8th Cir. 2004)), to require closer and closer
comparability between the plaintiff and the members of the
comparison group (the group of 10 in this case). Brummett
v. Sinclair Broadcast Group, Inc., 414 F.3d 686, 694 (7th Cir.
2005); Sartor v. Spherion Corp., 388 F.3d 275, 279-80 (7th Cir.
2004); Adams v. Wal-Mart Stores, Inc., 324 F.3d 935, 940 (7th
Cir. 2003); Peele v. Country Mutual Ins. Co., 288 F.3d 319, 330
4 No. 05-2825
(7th Cir. 2002); Knight v. Baptist Hospital of Miami, Inc., 330
F.3d 1313, 1316-18 (11th Cir. 2003); Okoye v. University of
Texas Houston Health Science Center, 245 F.3d 507, 514 (5th
Cir. 2001) (“nearly identical”). The requirement is a natural
response to cherry-picking by plaintiffs, the issue with
which we began. If a plaintiff can make a prima facie case
by finding just one or two male or nonminority workers
who were treated worse than she, she should have to show
that they really are comparable to her in every respect.
But if as we believe cherry-picking is improper, the
plaintiff should have to show only that the members of
the comparison group are sufficiently comparable to her
to suggest that she was singled out for worse treatment.
Goodwin v. Board of Trustees of University of Illinois, 442 F.3d
611, 619 (7th Cir. 2006); Ezell v. Potter, 400 F.3d 1041, 1049-50
(7th Cir. 2005). Otherwise plaintiffs will be in a box: if they
pick just members of the comparison group who are
comparable in every respect, they will be accused of cherry-
picking; but if they look for a representative sample, they
will unavoidably include some who were not comparable in
every respect, but merely broadly comparable. The cases
that say that the members of the comparison group must be
comparable to the plaintiff in all material respects get this
right. E.g., Raymond v. Ameritech Corp., 442 F.3d 600, 610 (7th
Cir. 2006); Wyninger v. New Venture Gear, Inc., 361 F.3d 965,
979 (7th Cir. 2004); Durkin v. City of Chicago, 341 F.3d 606,
613-14 (7th Cir. 2003); Rivera-Aponte v. Restaurant Metropol
#3, Inc., 338 F.3d 9, 12 (1st Cir. 2003); Graham v. Long Island
R.R., 230 F.3d 34, 39-40 (2d Cir. 2000).
The defendant emphasizes that members of the com-
parison group had worked longer for the defendant, and
had different supervisors, than the plaintiff did. Length of
service is particularly relevant if the comparison group is
selected on the basis of the total number of reprimands
received by each of the members regardless of length of
No. 05-2825 5
service; a worker who received one reprimand in 10 years
would not be comparable to a worker who had received one
reprimand in one year. Length of service would be much
less relevant if instead the comparison group is defined by
reference to the number of reprimands received by each
member during the year in which the plaintiff was em-
ployed, unless the compared workers had a sterling rec-
ord before the comparison year. The plaintiff used the
first method, and failed to compare the overall safety and
absentee records of the members of the comparison group
with the plaintiff’s record, even though as we just noted two
workers with the identical number of total infractions
might, given different lengths of service, have a very
different number of average infractions. Moreover, one of
the members of the comparison group was not a conductor.
A difference in supervisors is important in evaluating a
worker’s record of reprimands when the supervisors
who issue the reprimands have broad discretion (the
equivalent of prosecutorial discretion) in deciding wheth-
er and when to do so, as assumed in the many cases, such as
Radue v. Kimberly-Clark Corp., 219 F.3d 612, 617-18 (7th Cir.
2000), that emphasize such a difference as a material
circumstance in determining comparability. Here there were
multiple supervisors—the plaintiff’s eight reprimands were
issued by four different supervisors—and the plaintiff failed
to show how much or how little discretion they had.
So summary judgment was properly granted.
AFFIRMED.
6 No. 05-2825
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-23-06