Excerpted from Illinois Employment Law Letter, which is written by attorneys at the law firms of Ford & Harrison LLP

You have several employees you've caught red-handed violating acompany rule that your employee manual says may justify termination for a first offense. When questioned, one admits to the wrongdoing; the others deny it. Can you fire the employees who lied but retain the other employee with a lesser disciplinary measure? According to a recent Seventh U.S. Circuit Court of Appeals decision, the answer is yes.

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The breakfast club
Abbott Laboratories instrument technicians Scott Antonetti, Jerald Fuhrer, Cindy Nadinger, Marvin Gloria, and Juan Luna left Abbott's campus on Saturday morning, June 10, 2006, for a sit-down breakfast at a nearby restaurant. Abbott's policy allows one 30-minute unpaid meal break for each eight-hour shift. But on June 10, the employees were gone for an estimated 30 to 45 minutes. Later that day, a technical issue prevented them from completing their full eight-hour shift.

When questioned by their supervisor the following Monday, all of the employees except Luna denied having taken a meal break. The supervisor marked their timecards with an "NL," indicating that no lunch was taken that Saturday. Since Luna wasn't at work, the supervisor asked the group whether he had taken a meal break. One of the group members said that he hadn't, so the supervisor manually entered "NL" on Luna's timecard also. At the time, Luna wasn't asked about the meal break, nor did he assert that he had not taken a meal break on the Saturday in question.

Weeks later, Luna's former supervisor approached him and asked whether he knew of any incidents in which employees had gone to breakfast on a weekend shift without reporting their meal break. Luna replied by recounting his breakfast on June 10. Abbott then interviewed Antonetti, Fuhrer, Nadinger, and Gloria individually about whether they had gone off-site for breakfast on June 10. Each person denied any recollection of the off-site breakfast.

Later that day, Antonetti changed his story and told management about the incident. Abbott conducted an investigation and concluded that the employees had taken an extended off-site meal break that day and that all but Luna had lied about it. All of the breakfast bunch except Luna (who is Hispanic) were fired.

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Egg on their faces
Antonetti, Fuhrer, and Nadinger, who are white, sued Abbott, claiming they were discriminated against based on their race and national origin. The lower court entered judgment for Abbott before trial, concluding the workers were unable to show that similarly situated employees were treated more favorably than they were. The employees appealed to the Seventh Circuit.

On appeal, the employees argued that Luna was similarly situated. He had the same job, had the same supervisor, and had committed the same rule infraction (failing to report an extended meal break and receiving pay for the entire shift). But the Seventh Circuit agreed with Abbott that Luna was not similarly situated.

Unlike the others, Luna didn't falsely tell the supervisor that he didn't take a meal break. Instead, he was honest about the incident when questioned. The fact that he didn't lie but told the truth when confronted was a distinguishing factor to consider. At the very least, it was a mitigating factor that lessened the degree of his misconduct when compared to the misconduct of the others. Either way, Luna was not similarly situated.

The court didn't focus on the reverse discrimination aspect of the case. The Seventh Circuit previously held that in so-called "reverse discrimination" cases, rather than showing that an employee is a member of a protected minority, he must show that "background circumstances" warrant an inference of discrimination. That can include evidence indicating that the employer has some reason or inclination to discriminate against nonminorities or that something is "fishy" about the case.

In this case, the Seventh Circuit declined to address the "reverse discrimination" requirement despite the allegations of discrimination made by the white employees. Perhaps the court felt no need to do so given its finding that Luna wasn't similarly situated, which alone doomed the workers' claims. Antonetti v. Abbott Laboratories , No. 08-1647 (7th Cir., Apr. 21, 2009).

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What's the difference?
This case demonstrates once again that in garden-variety discrimination claims, the Seventh Circuit holds employees to a rigorous standard for proving that a similarly situated employee was treated more favorably than they were. Employers can defeat a discrimination claim by showing that the comparative employee isn't similarly situated because he reported to a different supervisor or engaged in different conduct or because mitigating circumstances distinguished his conduct. Put another way, employers should make sure they have legitimate and well-documented reasons for differential treatment of employees who may otherwise be alike.

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Copyright 2009 M. Lee Smith Publishers LLC. ILLINOIS EMPLOYMENT LAW LETTER. ILLINOIS EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual problems but rather to provide information about current developments in Illinois employment law. Questions about individual problems should be addressed to the employment law attorney of your choice.