For the second time in less than a month, judges ruled the city of Springfield can be sued for racial discrimination against white city workers.
On Oct. 26, a majority of a three-judge panel of the U.S. Seventh Circuit Court of Appeals sided with a former utility meter reader, who claims he was wrongly fired for misconduct, while the city retained a Black co-worker who also allegedly was documented for on-the-job performance concerns and had been recommended for termination.
Andrew Dunlevy, a former utility meter reader for the city of Springfield, sued Mayor James Langfelder and the city after being fired for allegedly misreporting home meter readings.
Dunlevy, in support of his claims, compared himself to a Black co-worker, stating the other man retained his position, even though he allegedly should also have been summarily dismissed for alleged gross misconduct. Dunlevy claimed his former co-worker was regularly late for work, took unauthorized excessive breaks during his shift and left early on multiple occasions. Dunlevy claimed the other man also falsified his initial job application by failing to disclose a previous burglary conviction.
All allegations could have been considered fireable offenses, Dunlevy asserted.
Meter readers are assigned a designated monthly route by their employer, Springfield’s publicly owned utility, known as City Water Light and Power. While the court said there is no known handbook or policy manual, meter readers receive on-the-job mentoring, and are expected to visit each assigned location, locate the meter, and document the reading data into a handheld device.
According to court documents, contrary to his training, Dunlevy chose to enter the data from seven homes without actually reading the meter, an offense known as “curbing meters", which under city ordinances and policies could result in termination.
A new employee, Dunlevy was still within his 12-month probationary period.
According to court documents, supervisors determined Dunlevy’s conduct was sufficient to warrant termination. Supervisors unanimously recommended both Dunlevy and his Black coworker should be fired. When they presented their recommendation to Mayor Langfelder, however, the mayor allegedly decided to fire Dunlevy, but retain his Black co-worker.
Dunlevy sued, claiming the city discriminated against him based on his race, and violated his constitutional rights to due process. He also claimed the city violated the Illinois Human Rights Act in firing him.
U.S. District Judge Sue E. Myerscough, in the U.S. District Court for the Central District of Illinois, however, sided with the city, finding Dunlevy’s discrimination claims could not be supported by comparing his case to that of his Black co-worker.
Under Myerscough’s reasoning, Dunlevy needed to show that he was a member of a protected class; that he met his “employer’s legitimate job expectation;” he “suffered an adverse employment action;” and that a “similarly situated employee outside of the protected class (was) treated more favorably.
Myerscough said there was disagreement on the final element.
Additionally, the judge said, since Dunlevy is not a member of a minority group, his case cannot proceed based solely on his claim of racial discrimination.
On appeal, however, the Seventh Circuit judges overturned Myerscough’s decision. Seventh Circuit Judge Jackson-Aliwumi authored the 2-1 majority decision, issued Oct. 26. Circuit Judge Ilana D. Rovner concurred in the decision.
Circuit Judge Kenneth F. Ripple dissented.
In their reasoning, the majority said Myerscough drew the comparison between Dunlevy and his Black co-worker too narrowly.
The two men don’t need to have been accused of the exact same misconduct before Dunlevy can hold up the other man’s treatment in comparison, Jackson-Akiwumi wrote.
“No doubt, Dunlevy’s conduct was serious in the eyes of the utility and Langfelder,” Jackson-Akiwumi wrote. “But the same could be said of (the other man.)
“A reasonable factfinder can infer that an employee taking unauthorized leave for multiple hours every day is engaging in serious misconduct. 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.”
In dissent, Judge Ripple cautioned his colleagues against the urge to “sit as a ‘super-personnel department,’ second-guessing an employer’s ‘business decision as to whether someone should be fired or disciplined because of a work-rule violation.’”
“In this case, Mayor Langfelder, as the decision maker, made a permissible mayoral decision in distinguishing between the misconduct of (Dunlevy and his co-worker.)
“Mr. Dunlevy’s affirmative dishonesty went to the heart of the function for which he was hired and directly harmed CWLP customers.”
Further, Ripple said, while Dunlevy’s Black co-worker also violated workplace rules, those alleged violations did not impair the basic function of the utility company and could have been remedied by other means.
In short, Ripple said, under legal precedent, Dunlevy’s alleged “falsification of meter readings is a more serious transgression than (his co-worker’s) slacking off on the job.”
Dunlevy has been represented in the action by attorney John A. Baker, of the firm of Baker Baker & Krajewski, of Springfield.
The city of Springfield and Langfelder have been represented by attorney Steven C. Rahn and others from the city’s Office of the Corporation Counsel.
The decision in favor of Dunlevy marked another quick blow to the city over anti-white discrimination claims.
About two weeks earlier, in a different case, the Seventh Circuit Court of Appeals also handed a similar loss in court to Langfelder and the city of Springfield. In that case, judges agreed to allow a white former city of Springfield worker sue the city for passing her over for a promotion in favor of a Black woman.
The judges in that case noted details in the case left them with the impression Langfelder had promoted the Black woman because of her race, to satisfy diversity goals. The judges also chided the city for its conflicting stories of how the city evaluated the candidates for the promotion, and whether non-Black candidates were even considered.