In an important new case from the Seventh Circuit, the court in Diaz v. Kraft Foods Global, Inc. ruled that an employee’s prima facie case cannot be rebutted by the employer showing fair treatment of another employee in the same class. The court stated:
The source of the district court’s error may have been a mistaken decision to import an inverted version of the “similarly situated employee” factor from the indirect method of proof established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under that framework, a plaintiff can raise the inference of discrimination by identifying a similarly situated employee outside the protected class who was treated more favorably by the employer. See, e.g.,Radue v. Kimberly-Clark Corp., 219 F.3d 612 (7th Cir. 2000). There is no “similarly situated employee” analysis available to the employer to defeat a plaintiff’s claim. Instead, in an indirect-proof case, to shift the burden back to the plaintiff the employer must articulate a non-discriminatory reason to explain the challenged conduct. One thing is clear under this framework: the employer cannot satisfy its burden by identifying a person within the protected class who was not similarly discriminated against.