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Coworker retained after violating harassment policy once not proper comparator for auto worker who violated it twice

By Joy P. Waltemath, J.D.

Indeed, the worker was not fired after his first violation either.

Terminated after a second violation of Fiat Chrysler Automobiles’ anti-harassment policy, a male assembly plant worker was unable to convince the Seventh Circuit to revive his Title VII claim that FCA fired him due to race discrimination. Excerpts from deposition testimony by FCA’s HR director in an unrelated case did not establish either that witness statements in an investigation always had to be signed (they were not signed in the worker’s investigation) or in any way show that he was treated differently because of his race. Further, his one comparator—a white man who was not terminated after his first violation of the anti-harassment policy—had not committed misconduct of “comparable seriousness.” Indeed, the worker was not fired after his first violation either, the court pointed out, agreeing he had failed to establish a prima facie case of race discrimination (Gamble v. FCA US LLC, April 8, 2021, Kirsch, T.).

On appeal, the worker argued he had enough evidence of discrimination to defeat summary judgment on his Title VII claim. The parties disputed whether he had provided evidence that he was treated less favorably than others not of his protected class. He contended that the district court’s ruling that he had not was based on its exclusion of the deposition testimony of FCA’s HR director in an unrelated employment discrimination case.

Excluded deposition testimony. According to the worker, the HR director testified that FCA’s anti-harassment policy requires witness statements to be signed and, because the witness statements in his investigation clearly were not signed, he was treated less favorably than non-minority employees. The appeals court found the description of the deposition testimony “not quite accurate:” Rather, the HR director was describing “in abstract terms what “may” occur during an internal investigation and includes one line stating that witnesses would sign their statements.” In the court’s view, the worker entirely failed to show how the deposition testimony (or the purported signature requirement) “had anything to do with race.”

Although the appeals court parted ways with the district court over the deposition testimony’s admissibility, reasoning that a deposition is at least as good as an affidavit and should be acceptable whenever an affidavit would be permissible, the worker’s argument still failed even if the district court had considered the deposition. What the Seventh Circuit characterized as “bareboned, non-specific testimony regarding a possible signature requirement” was no basis for inferring racial bias.

No proper comparator. Further, the worker failed to identify a comparator who was subject to the same performance standards and engaged in misconduct of “comparable seriousness.” The white employee who had violated the same anti-harassment policy as the worker had violated policy once, not twice as the worker had. Plus, the worker was not discharged after his first violation, so the distinction mattered. The Seventh Circuit also noted the lack of evidence that the proposed comparator had harassed multiple victims in front of eyewitnesses, as FCA contended the worker had. It also noted the worker had not disputed the distinctions the court focused on or argued they were unimportant.

Weighing of evidence. Finally the worker argued that the district court “admitted” that it was weighing evidence related to how unsigned witness statements should be viewed in the record. He was referencing the district judge’s statement that the worker’s objection to the witness and victim statements taken during FCA’s investigations did not undermine their admissibility; rather, that they were unsigned was relevant “to the weight of the evidence.” This is not an “admission” by the district court that it was weighing the evidence itself, the appeals court stressed, but that it was determining what evidence could properly be considered on summary judgment. And as to that evidence, the worker failed to present enough evidence to make a prima facie claim of race discrimination.