                                 In the
     United States Court of Appeals
                   For the Seventh Circuit
No. 13-3324

MARGA BAKER,
                                                    Plaintiff-Appellant,

                                   v.


MACON RESOURCES, INC.,
                                                   Defendant-Appellee.

              Appeal from the United States District Court
                    for the Central District of Illinois.
              No. 12-2156 — Michael P. McCuskey, Judge.


    SUBMITTED MARCH 26, 2014* — DECIDED APRIL 25, 2014


   Before WOOD, Chief Judge, and SYKES and HAMILTON,
Circuit Judges.

   PER CURIAM. Marga Baker, who worked for 19 years as a
caregiver for people with disabilities, challenges the grant of
summary judgment for her former employer, Macon

*
   In light of Baker’s unopposed motion to waive oral argument, and after
examining the briefs and the record, we have concluded that oral argument
is unnecessary. Thus the appeal is submitted on the briefs and the record.
See FED. R. APP. P. 34(a)(2)(C).
2                                                    No. 13-3324

Resources, in this age-discrimination lawsuit. Because a jury
reasonably could find that Macon Resources discriminated
based on age by treating a younger employee more leniently
after she and Baker reportedly violated the same policy, we
reverse and remand.

    We recount the facts in the light most favorable to Baker.
See Hobgood v. Ill. Gaming Bd., 731 F.3d 635, 637 (7th Cir. 2013).
Macon Resources, which hired Baker in 1991, runs group
homes for people with disabilities. The organization has a
written policy requiring any employee who “witnesses, is told
of, or has reason to believe an incident of abuse or neglect …
has occurred” to report the allegation. Under this policy
employees must inform a supervisor of suspected abuse; a
more recent state law also requires them to report to a state
agency, the Office of the Inspector General. See 20 ILCS 1305/1-
17(k) (enacted Aug. 13, 2009). Baker twice witnessed abuse in
the late 1990s when she saw a coworker, David Carter, use his
finger to “flick” the back of a resident’s neck. She told her
supervisors about the flicking after she observed it, as com-
pany policy required.

   A decade later the Office of the Inspector General inter-
viewed three workers as it reviewed allegations that Carter
had both sexually and physically abused the same resident.
According to the Inspector General’s report, “direct” evidence
of sexual abuse came from Angelia Cross, a 39-year-old
caregiver. She told investigators that she had seen the resident
agitated, yelling, and gesturing at his genitals the day after
Carter had worked the overnight shift. At the time, Cross
asked the resident “who did that to him,” but she could not
understand his response because of his extremely limited
No. 13-3324                                                    3

communication skills. A week later, she overheard Carter
admit to another employee, “Yes, I pulled it,” which led her to
suspect Carter of sexual abuse. Then, a month later, she saw
the resident raise his fist, point to his genitals, and point
toward the room where Carter was standing. Though Cross
and Baker discussed Cross’s observations of Carter’s suspected
sexual abuse, Cross did not report her observations. The
Inspector General’s Office also interviewed Baker and a third
caregiver. Both described seeing Carter flick the resident in the
neck. The third caregiver also told investigators that she had
heard Carter “joking” about his abusive act of squeezing the
resident’s testicles.

    The report concluded that the resident had been abused.
Although the report found insufficient evidence to substantiate
the claim of sexual abuse, it concluded that the neck-flicking
was proven physical abuse. The Inspector General also
recommended that Macon Resources address the failure of
Baker, Cross, and the third employee to comply with the 2009
state law requiring that they report suspected abuse to the
Inspector General. See 20 ILCS 1305/1-17.

   Macon Resources held meetings on whether the three
caregivers had breached the company’s policy requiring that
they report abuse to a supervisor; it did not address the state
law. The disciplinary report for Cross observed that she had
“direct evidence” of and “suspected” that Carter had sexually
abused a resident. The report for Baker and the third caregiver
found that each had been “an eyewitness to physical abuse,”
namely, of the flicking. All three were found to have failed to
report the abuse. After reviewing these disciplinary reports
and the Inspector General’s report, the executive director fired
4                                                  No. 13-3324

the 56-year-old Baker and the 61-year-old caregiver who had
seen the flicking, but chose a 3-day suspension for the 39-year-
old Cross. Believing that her employer gave the youngest
worker a lighter punishment because of her age, Baker sued
under the Age Discrimination in Employment Act, 29 U.S.C. §
623(a)(1).

    During discovery the executive director defended the
different punishments for Baker and Cross. He admitted that
Baker and Cross had violated the same company obligation to
report abuse any time they have “reason to believe” it oc-
curred. He also acknowledged that he relied on the Inspector
General’s report and the internal disciplinary reports, both of
which described Cross as having “direct evidence” of sexual
abuse. But, he added, Baker had “witnessed” flicking, whereas
he described Cross as having only “hearsay or kind of rumor
knowledge” of sexual abuse. Yet he later testified that failure
to report “even rumors” is a “serious offense.” The director
also testified that he was unaware of Baker’s assertion, ad-
vanced at her disciplinary meeting, that she timely reported
the flicking to her supervisors. Macon Resources has not
investigated whether Baker’s supervisors, who still work at the
company, violated the policy by themselves failing to act on
Baker’s report of physical abuse.

    Baker proceeded in the district court under the indirect,
burden-shifting approach to a prima facie case first established
in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
The parties clashed over two points. First, they disputed
whether Baker supplied evidence of two elements of her prima
facie case: meeting her employer’s legitimate job expectations
and identifying a similarly situated, younger employee who
No. 13-3324                                                         5

received favorable treatment. See Hester v. Ind. State Dep’t of
Health, 726 F.3d 942, 946–47 (7th Cir. 2013); Everroad v. Scott
Truck Sys., Inc., 604 F.3d 471, 477 (7th Cir. 2010). These elements
merge in cases of discriminatory discipline; the inquiry is
whether a younger employee engaged in similar misconduct
yet received lighter punishment. See Rodgers v. White, 657 F.3d
511, 517 (7th Cir. 2011); Luster v. Ill. Dep’t of Corr., 652 F.3d 726,
730 (7th Cir. 2011). Second, the parties also disputed whether,
if Baker satisfied these elements, she could rebut as pretextual
the director’s reason that he distinguished Baker from Cross
because only Baker had “witnessed” abuse. See Perez v.
Thorntons, Inc., 731 F.3d 699, 708 (7th Cir. 2013). The district
court granted summary judgment to Macon Resources,
concluding that Baker and Cross were not similarly situated
because Cross neglected to report only “suspicions” of abuse,
whereas Baker was fired for failing to report abuse that she had
witnessed.

    On appeal Baker argues that the district court erroneously
construed the record in Macon Resources’s favor and should
have denied summary judgment. Baker maintains that Cross
is a similarly situated worker who engaged in comparable
misconduct and that the reasons for treating Cross more
leniently are pretextual.

   Baker has supplied adequate evidence that Cross is a
comparable worker who engaged in similar misconduct yet
received lighter treatment. Whether employees engaged in
misconduct of comparable seriousness is an objective question.
Coleman v. Donahoe, 667 F.3d 835, 851–52 & n.4 (7th Cir. 2012);
Eaton v. Ind. Dep’t of Corr., 657 F.3d 551, 556–58 (7th Cir. 2011).
6                                                    No. 13-3324

The company’s reporting policy draws no distinction in
imposing a duty to report among those who “witness” abuse,
those who are “told of” it, and those who have “reason to
believe” it occurred. Baker witnessed Carter commit physical
abuse when he flicked the resident; similarly Cross had
“reason to believe” that Carter sexually abused the resident
when she witnessed the resident’s gestures and overheard
Carter, who “told of” it when he said, “Yes, I pulled it.” Based
on this evidence, a jury could reasonably find that Baker and
Cross are sufficiently similar to establish a prima facie case of
age discrimination. See Coleman, 667 F.3d at 851 (plaintiff who
had “thoughts” about killing her boss was comparable to
employees who threatened other employee with knife);
Humphries v. CBOCS West, Inc., 474 F.3d 387, 406 (7th Cir. 2007)
(two employees who left safe unlocked against policy were
comparable even though one did so at night and other during
business hours); Ezell v. Potter, 400 F.3d 1041, 1049–50 (7th Cir.
2005) (mail carrier who took extended lunch break similarly
situated to carrier who lost certified mail); Appelbaum v.
Milwaukee Metro. Sewerage Dist., 340 F.3d 573, 580–81 (7th Cir.
2003) (plaintiff who broke confidentiality policy and employee
who was insubordinate in refusing to answer questions about
confidentiality violations were materially similar).

    Macon Resources responds that, even if Baker and Cross
are objectively similar, it permissibly treated Baker more
harshly because the director believed it significant that only
Baker “witnessed” abuse. But Baker replies that the professed
reliance on witnessing is pretextual. Although this issue is a
close call, for two reasons we agree with Baker that the
No. 13-3324                                                     7

evidence construed in her favor can allow a jury to find
pretext.

    First, a jury may reasonably infer pretext from flagrant
inaccuracies or inconsistencies in an employer’s proffered
reason for an employment decision. See Mullin v. Temco
Machinery, Inc., 732 F.3d 772, 778–80 (7th Cir. 2013); Hobgood,
731 F.3d at 647–48. Here, the director’s asserted reliance on
Cross not “witnessing” abuse to justify his lenient treatment of
her is inconsistent with the policy that he invokes, the Inspec-
tor General’s Report on which he relies, and his other testi-
mony. The director testified that when he decided on discipline
he relied on the company’s reporting policy and the Inspector
General’s report. The company’s policy requires that staff must
report abuse, not only when they “witness” it, but equally
when they have “reason to believe” or have been “told of” it.
And from the Inspector General’s report, the director knew
that Cross had both reason to believe and was told that Carter
sexually abused a resident: It recounts that Cross suspected
Carter of abuse, that she saw the resident point to his genitals
and then gesture toward Carter, and that Carter said that he
“pulled it.” Even if the director believed that Cross’s suspicions
were as weak as a mere rumor, he also testified that a failure to
report “even rumors” is a “serious offense.” Construing this
evidence in Baker’s favor, we conclude that the record allows
an inference that the director viewed Cross’s silence about her
suspicions of Carter’s sexual abuse as an offense just as serious
as Baker’s. See Coleman, 667 F.3d at 851 (finding evidence of
pretext in employer’s attempt to distinguish between two co-
workers, both of whom displayed tendency toward violence).
8                                                    No. 13-3324

    Second, selective enforcement or investigation of a disci-
plinary policy can also show pretext, Coleman, 667 F.3d at
857–58; Chaney v. Plainfield Healthcare Ctr., 612 F.3d 908, 915–16
(7th Cir. 2010), and the record contains evidence of that, too.
The manager who oversaw Baker’s disciplinary meeting
learned that she told her supervisors about the flicking. But the
company has never investigated those supervisors for their
inaction. Nor has it offered a reason why, at the same time it
fired Baker for failing to report the flicking, it chose not to
investigate whether her own supervisors violated the same
reporting rule. Instead, the director merely notes that because
he is four years older than Baker, an inference of discrimination
is implausible. But the Supreme Court has held that “it would
be unwise to presume as a matter of law that human beings of
one definable group will not discriminate against other
members of their group.” Oncale v. Sundowner Offshore Servs.,
Inc., 523 U.S. 75, 78 (1998), quoting Castraneda v. Partida, 430
U.S. 482, 499 (1977). Any inferences about the director’s
motivations here are for the trier of fact.

    We conclude that the selective enforcement of Macon
Resources’s reporting policy, combined with the inconsisten-
cies in distinguishing Baker from Cross, can support pretext.
This pretext evidence could lead a jury reasonably to believe
that age is the true reason that it fired Baker but retained the
younger Cross after both violated the same company rule.
See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147
(2000) (“Proof that the defendant’s explanation is unworthy of
credence is … probative of intentional discrimination, and it
may be quite persuasive.”); Filar v. Bd. of Educ. of City of Chi.,
526 F.3d 1054, 1064–65 (7th Cir. 2008) (“Because the only salient
No. 13-3324                                                  9

difference between [the plaintiff] and the younger teachers was
age, a jury could conclude that age motivated [the employer’s]
decisions.”). Accordingly, the case must be tried.

                                   REVERSED and REMANDED.
