Severity of Discipline May Be Based on the Employee’s Reaction to A Charge of Misconduct

The U.S. Court of Appeals for the Seventh Circuit rejected a race discrimination claim based on different levels of discipline received by two employees for the same misconduct, finding that more serious discipline was imposed not based on race but the employee’s conduct following the charge of misconduct.

In Reives v. Illinois State Police, a special agent and his partner both submitted falsified timecards in connection with a particular assignment. Based on concerns about one of their reports, their superiors directed them to prepare honest and accurate memoranda that detailed their activities on the assignment. The special agent falsified his activities on his memorandum (as proven by available security footage), while his partner submitted a truthful memorandum. The special agent received more serious discipline than his partner. He sued, claiming that the difference in discipline was based on race.

The Seventh Circuit disagreed. Although both agents had falsified their timecards, the special agent had also falsified the information in his memorandum as well as throughout the department’s investigation, while his partner had not. While the partner accepted responsibility for his wrongdoing, the special agent did not. Thus, the Seventh Circuit found that the special agent could not properly compare his situation to that of his partner for purposes of establishing a discrimination claim.

There will certainly be times when employees should be subject to the same level of discipline for the same type of misconduct. But this case reminds employers that an employee’s reaction to a charge of wrongdoing can be taken into account in determining the appropriate discipline. An employee who is genuinely contrite may be entitled to more consideration than one who digs themselves a deeper hole.