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A federal appeals court has dismissed an age discrimination lawsuit filed by a railroad worker because he did not prove that any coworker under the age of 40 was treated better after engaging in similar conduct.
The ruling, by a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit, sets a high bar for age discrimination cases, especially for older workers employed by small employers.
The 7th Circuit includes Illinois, Indiana and Wisconsin.
The panel dismissed David McDaniel’s case against Progress Rail Locomotive, Inc., a subsidiary of Caterpillar, Inc., because he had not supplied evidence of “any similarly situated employee” under the age of 40 who was treated more favorably under similar circumstances.
McDaniel, a material handler, was fired in April 2017 after he crushed his finger while trying to move a 106-pound piece of machinery at the company’s McCook, Il, plant. He returned to work but was found in violation of a company policy that bars employees from lifting any load over 35 pounds without a mechanical lifting device. He had earlier been disciplined for leaving a cell phone “out in the open or visible within the aisle lines of a manufacturing area.”
McDaniel, then 55, had worked for Progress for 12 years.
McDaniel’s problems began when he complained in August 2016 that a newly appointed supervisor, Jonathan Howard, was not complying with the company’s overtime policy, Instead of offering overtime in order of seniority, McDaniel said, Howard was giving overtime to “the younger workers.” Howard’s boss told the two men to work out their differences informally.
Later that month, Howard issued McDaniel a disciplinary notice for using his cell phone at work. McDaniel provided phone records showing he did not talk on his phone that day but was issued a one-day suspension anyway. The appeals court said “whether McDaniel spoke on his phone is not dispositive… because he admitted during the investigatory process that his phone was ‘on top of the truck,’ which is still a violation of safety rules.”
Howard issued another complaint against McDaniel the following month alleging that he used his cell phone to take pictures. The company determined McDaniel had not taken any photographs at work and McDaniel was not disciplined.
Later that month, Howard assigned McDaniel to “sweeping and general maintenance duties for three weeks after arbitrarily revoking his fork life license.”
A casual observer might find the above facts support McDaniel’s claim that Howard was retaliating against him for having complained of age discrimination but the appeals court said McDaniel was missing a key ingredient of proof.
The court said it could not infer age discrimination or retaliation because McDaniel had failed to show Progress Rail treated a “similarly situated” employee “outside the protected class” more favorably for similar conduct.
A similarly situated employee need not be identical in every “conceivable” way, the panel states, but must be directly comparable “in all material respects.” The panel said the plaintiff generally must “at least” show the younger worker dealt with the same supervisor, was subject to the same standards and engaged in similar conduct.
“McDaniel did not present evidence of a comparator who similarly violated Progress Rail’s cell phone policy or lifting policy—or any safety rule, for that matter—and also complained about overtime, but received better treatment,” the panel stated.
The panel rejected McDaniel’s argument that his eight co-workers who worked for Howard were similarly situated because he failed to provide their names, work history, performance reviews and ages. Additionally, the panel noted that no one else had complained about overtime.
The panel concluded McDaniel’s claim that he was treated less favorably than his coworkers was “conclusory” and ‘insufficient to raise an issue of fact.”
While the panel had no problem with the proximity of McDaniel’s complaint and Howard’s disciplinary actions, it did have have a problem with McDaniel’s account of his injury. The panel found it significant that McDaniel at the time said he crushed his finger when he “lifted” the machinery but claimed in the lawsuit that the injury occurred when he attempted to “shift” the machinery. It concluded McDaniel had “lifted” the machinery in violation of the company safety rule.
No “reasonable jury” could conclude that McDaniel was fired because of his age or because he complained about age discrimination, said the panel.
The panel included Judges Ilana Rovner, 81; Michael Yale Scudder, Jr., 48; and, the author if the opinion, Amy J. St. Eve, 53. The lower court judge, whose decision was affirmed, was John Robert Blakey, 54. The case, David McDaniel v. Progress Rail Locomotive, Inc., was decided on Oct. 9, 2019.
