Courts Remind Employers to Train Managers Consistently

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Attorney Harrison Oldham



On October 26, 2022, the U.S. Court of Appeals for the Seventh Circuit provided employers with yet another reminder of the importance of consistent management across its workforce.


In Dunlevy v. Langfelder, the Seventh Circuit (which covers Illinois, Indiana, and Wisconsin) considered Andrew Dunlevy’s appeal, which regarded the improper termination of his employment. There, the court held that the reason for firing Mr. Dunlevy (who is white) was similar to the alleged misconduct of another employee, Tour Murray (who is black), who was not fired. As a result, the appellate court vacated the lower court’s ruling.  Now, the case will go back to the trial court, potentially moving forward to trial by jury, where a jury would have to determine if Mr. Dunlevy’s race played a role in the termination of his employment.



In September 2017, the City of Springfield, Illinois, hired Mr. Dunlevy and Mr. Murray as water meter readers.  Both Mr. Dunlevy and Mr. Murray were subject to a twelve-month probationary period.  They also received the same pay and reported to the same supervisor.


Nearing the end of the probationary period, the City opened investigations into the alleged misconduct of Mr. Dunlevy and Mr. Murray. The investigations discovered that Mr. Dunlevy had inaccurately recorded meters at seven different homes, which is a fireable offense even for protected employees.  On the other hand, Mr. Murray had been starting work late, leaving early, and walking off the job for up to three hours at a time.  Additionally, Mr. Murray failed to disclose a seven-year-old burglary conviction on his employment application.


Following the investigations, the supervisors unanimously recommended that both men be fired before the end of their probationary period.  However, the City’s Mayor, Mayor Langfelder fired Mr. Dunlevy.  In contrast, the Mayor extended Mr. Murray’s probationary period by six months.


The Plaintiff’s Lawsuit

After the City terminated Mr. Dunlevy’s employment, Mr. Dunlevy brought claims against the City, alleging disparate treatment based on his race. The district court granted summary judgment to the City, which Mr. Dunlevy appealed to the Seventh Circuit.  The Seventh Circuit reversed the district court’s decision.  It remanded the case for a trial, finding that Mr. Dunlevy and Mr. Murray were similarly situated employees who had engaged in comparable misconduct.


The Seventh Circuit warned that lower courts should not narrowly construe similarly situated comparators, emphasizing that Mr. Dunlevy’s and Mr. Murray’s misconduct had similar levels of culpability and seriousness.  Specifically, while Mr. Dunlevy’s meter curbing undermined the core function of the City’s utility, Mr. Murray’s tardiness and absences undermined a basic tenet of any employment: be present.


Ultimately, the appellate court ruled that the district court drew too narrow a comparison: The two men were sufficiently similarly situated for Mr. Dunlevy to bring his claims to trial. However, the appellate court might have summarized it best when the court ruled, “After all, an employee who simply fails to show up to work undermines the utility’s core mission just as much as an employee who shows up but periodically does a poor job.”


Key Takeaways

The decision in Dunlevy v. Langfelder gives employers insight into what courts may look for when determining whether an employer has engaged in discriminatory conduct.


The case also reflects recurring themes in employment discrimination litigation that employers may want to keep in mind before, and after, litigation arises:

  • Inconsistency may lead to litigation. A common tactic for a plaintiff to evade summary judgment in an employment discrimination case is to point to an employer’s inconsistencies with respect to policies and discipline. As demonstrated in Dunlevy, differences in disciplining employees may raise an inference of discrimination. Thus, by having and consistently following an internal disciplinary policy, employers may avoid or minimize the potential risk of litigation.
  • Employers may want to consider what conduct is of “comparable seriousness” when issuing discipline. As evidenced in Dunlevy, conduct that may appear to be facially different may be similar for purposes of litigation. The Seventh Circuit clarified that misconduct need not be identical to support an employee’s right to a trial.


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About Harrison Oldham

Harrison grew up in Mansfield, Texas. He attended Texas A&M University for his bachelor’s degree, where he met his wonderful wife, Kelsey. After graduating magna cum laude from Texas A&M, he attended SMU Dedman School of Law, graduating with honors in 2012. Today, Harrison and his wife live in Dallas, Texas with their son, Teddy.

Since graduating from SMU Law, Harrison has worked exclusively in the field of business law. He has spent time in private practice and in-house, working with clients of every size; from single person startups to Fortune 250 companies. Today his practice focuses on serving the diverse needs of businesses and individuals throughout Texas. You can learn more about Harrison by visiting his website, at: http://lonestarbusinesslaw.com/.

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