Employment – Sex discrimination

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U.S. Court of Appeals
For the Seventh Circuit

Civil

Employment – Sex discrimination

Where an employee was terminated for having sex at work, but the other employee was given a full pension and retained as an independent contractor, summary judgment was improperly granted to the employee on her sex discrimination claim.

“[T]hey were certainly treated differently— Orton-Bell was terminated and was banned from working in any capacity for the DOC. Ditmer, however, was able to enter into a settlement agreement that permitted him to resign, enabled him to keep all his benefits including his pension, and allowed him to work at the prison with an outside contractor (which he did).8 The DOC seems to have acquiesced to those outcomes as the results of the SEAC appeal process. But the disparity of consequences was the effect of the DOC’s willingness to settle with Ditmer but not with Orton-Bell. The DOC hints that this was caused by different litigation strategies, but it fails to provide any reason it did not offer Orton-Bell the same settlement terms it gave Ditmer. In fact, Orton-Bell testified that she asked Ditmer about his settlement but Ditmer responded that he could not talk to her because of the settlement.

Orton-Bell Dep. at 162. The DOC, focusing on its argument that Ditmer and Orton-Bell were neither similarly situated nor treated differently, has not seriously offered a reason for their disparate treatment. Even if we were to infer the reason that the DOC hints at—that it was merciful to Ditmer because of his long career—Orton-Bell has offered sufficient evidence of pretext. Firing the Major in Charge of Custody for an affair which compromised his ability to lead (especially given his repeated past violations of the conduct code) makes sense. But letting him resign and retain the ability to keep working (with
all attendant benefits) while firing the female counselor with whom he had an affair is suspect. This conclusion results in large part from the failure of the parties to develop the record more about the SEAC process and the DOC’s decision to settle with Ditmer. Indeed, there was so little development below that the district court missed the fact that Orton-Bell had even appealed. Based on the evidence currently available, we conclude that the discrimination aspect of this suit must go forward, but more discovery is needed on these issues.”

Affirmed in part, and Reversed in part.

13-1235 Orton-Bell v. State of Indiana

Appeal from the United States District Court for the Southern District of Indiana, Lawrence, J., Manion, J.

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