In Lau v. Abbott Labs, 2019 IL App (2d) 180456 (Ill. App., Apr. 2, 2019), the Appellate Court of Illinois 2nd District, reversed in part the trial court’s grant of summary judgment and resurrected the discharged employee’s claims of discrimination on the basis of sex, race, national origin, or age.
A Plaintiff Need Not Identify Comparators of Exactly the Same Grade Level to Advance a Discrimination Claim
One of the primary ways that plaintiffs establish a prima facie case of discrimination is by identifying similarly-situated co-workers from outside their protected class who were treated less more favorably than them.
In Lau, the plaintiff alleged that Abbott “treated her less favorably than other employees by, among other things, assigning her additional work, holding her to a higher performance standard, and evaluating her more harshly, leading to her eventual termination.” The other employees – two younger white males – that plaintiff identified as having received more favorable treatment reported to the same manager as her, but were of a slightly lower “grade” within the company.
In finding that the plaintiff established her prima facie case of discrimination, the Court rejected Abbott’s “argue[ment] that, as a matter of law, employees of different grade levels cannot be similarly situated[,]” and found there was “sufficient conflicting evidence to raise a factual dispute over whether [plaintiff and the co-workers she identified] were similarly situated but treated differently.”
The Manager’s Inconsistent Behavior Raised an Inference he had Unfairly Singled Out the Plaintiff
After concluding that the trial court erred in finding that plaintiff had failed to establish a prima facie case of discrimination, the Court moved on to determine whether the plaintiff had set forth sufficient evidence “that her alleged performance deficiencies were a pretext for discriminatory animus on the part of [her manager.]”
The Court found several pieces of evidence supporting pretext, including that the plaintiff had a long history of strong performance reviews before falling under her new manager, the manager rated his two male subordinates better than his two female subordinates, and the other female under the manager testified in support of plaintiff’s claims that the males were treated more leniently.
But the strongest evidence of pretext that the Court found was the manager’s own inconsistent behavior towards plaintiff. For example, the manager gave her a review criticizing her leadership but had previously taken away her supervisory responsibilities so he had limited her ability to demonstrate leadership. Also, the manager dramatically increased plaintiff’s workload after he criticized her ability to handle her existing workload. This evidence, the Court reasoned, was sufficient for a jury to possibly conclude that the manager had been setting her up for failure.