Mark P. Rodgers v. JESSE C. WHITE, Secretary of State of Illinois

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 em-
ployee 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-

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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 en-
gaged 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 favor-
able 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 person-
nel director. Both are white. Their reasons for dis-
charging 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

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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 tempo-
rary 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 In-
spector General, Rodgers gave shifting explanations:
Rodgers initially said he thought the temporary em-
ployee 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 state-
ment 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 per-
sonnel department initiated discipline against the em-
ployees involved. The crew member who borrowed the

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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 con-
tested 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 De-
cember. 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 informa-
tion, 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-

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No. 10-3916 5
Turner was ousted and replaced with Fitts after it was å
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 compen-
satory 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.å
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 supervi-
sor 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 com-
pensatory 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

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6 No. 10-3916
to him several times; Rodgers says that he couldn’t com-
plete 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 uncom-
pensated 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

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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 de-
moted to yard work. Deffenbaugh, the other crew super-
visor, was not disciplined; during discovery Fitts ex-
plained 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-

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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 recom-
mending that Rodgers be fired. As grounds for termina-
tion, 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-

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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 de-
fendants argued that Rodgers had no direct evidence
of discrimination and no circumstantial evidence of
suspicious timing or racially charged commentary sur-
rounding 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,

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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 judg-
ment. 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 em-
ployees 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 situ-
ated 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.

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No. 10-3916 11
II. Analysis
In challenging the grant of summary judgment, Rodgers
argues that he produced sufficient evidence of discrim-
ination under both the direct and indirect methods. We
disagree about the direct method. Rodgers contends
that certain “bits and pieces” of circumstantial evi-
dence—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 favor-
ably. 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-

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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

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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 super-
visor 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. News-
papers, 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. Super-
visors 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

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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 com-
parison 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);

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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 treat-
ment 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 equip-
ment, and both men denied the accusation. The Inspector

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16 No. 10-3916
General did not exonerate Rusciolelli, and since he super-
vised 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. More-
over, 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

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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 defen-
dants, 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 em-
ployee 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 sus-
pect. 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 Deffen-
baugh. 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

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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 “manda-
tory” 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

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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 defen-
dants’ 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

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20 No. 10-3916
alleged misconduct and committed the same purported
recordkeeping mistakes and yet received only a demo-
tion. The evidence also shows that the defendants
hounded Rodgers, the lone black employee, about pur-
ported timekeeping errors while ignoring both Deffen-
baugh, 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 evi-
dence 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

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