Does your boss have it out for you?  The opening sentences of a recent Eleventh Circuit opinion summarize a dilemma confronting many employers:

George Dagnesses believed his boss had it out for him.  She belittled him and accosted him, and regularly made negative remarks about men.  When his boss eventually fired him, Dagnesses sued his former employer … for sex discrimination and retaliation under Title VII of the Civil Rights Act of 1964 ….

Dagnesses v. Target Media Partners, No. 16-17802, 2017 WL 4329719 (11th Cir. Sep. 29, 2017).

Mr. Dagnesses lost his law suit, even though he produced substantial evidence that his supervisor, Linda Coffman, was hostile towards him.  She repeatedly belittled and second-guessed him, and on one occasion poked him the chest.  Another female supervisor testified that Coffman’s treatment of Dagnesses made her uncomforatable, but did not believe Coffman disliked Dagnesses because he was a man.

Coffman terminated Dagnesses employment and provided evidence that her decision was based upon insubordination, inappropriate communication, failure to follow instructions and poor attitude.  Dagnesses’ discrimination claim failed because he could not identify any similarly situated female employees, who engaged in similar misconduct, and were treated better than him.

The Eleventh Circuit’s analysis included one interesting bit of dicta that employees might attempt to use in the future.  Dagnesses attempted to compare himself to a female employee who was “discharged due to dissatisfaction with the quality of her work.”  The Court distinguished that female employee by saying that “quality of work” is a “lesser degree of misconduct” than “insubordination, inappropriate communication, failure to follow instructions and poor attitude.”  If a future employer fires an employee for “quality of work,” but retains employees with “bad attitudes,” I would expect the employee to argue that they were terminated even though they engaged in a “lesser degree of misconduct” than employees who were retained.

George Dagnesses’ boss may have had it out for him.  But, Dagnesses failed to prove that the reason she had it out for him was his gender.  In short, a boss can treat employees poorly, but won’t violate Title VII unless the reason for his/her treatment is a bias against race, gender or another protected class.