Employment Law Daily En banc CA-11 clarifies McDonnell-Douglas comparators must be ‘similarly situated in all material respects’
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Monday, March 25, 2019

En banc CA-11 clarifies McDonnell-Douglas comparators must be ‘similarly situated in all material respects’

By Ronald Miller, J.D.

The Eleventh Circuit vacated its prior ruling and took this case en banc to clarify the proper standard for comparator evidence in intentional discrimination cases: An employee must show that she and comparators were “similarly situated in all material respects.”

In an en banc ruling, the Eleventh Circuit ruled that a plaintiff asserting an intentional discrimination claim under McDonnell-Douglas must demonstrate that she and her proffered comparators were “similarly situated in all material respects.” The appeals court had no trouble concluding that a meaningful comparator analysis must remain part of the prima facie case. Moreover, finding that the plaintiff in this instance failed to demonstrate, as part of her prima facie case, that she was treated differently from other individuals with whom she was similarly situated in all material respects, the case was remanded to the district court. Judge Rosenbaum filed a separate opinion concurring in part and dissenting in part, joined by Judges Martin and Jill Pryor (Lewis v. City of Union City, Georgia, March 21, 2019, Newsom, K.).

Taser training. The employee, an African-American woman, worked as a detective with the Union City Police Department. She suffered a heart attack in 2009, but was cleared to return to work without restrictions. In 2010, the then-police chief announced a new policy requiring all officers to carry tasers. As part of the training associated with the new policy, officers had to receive a five-second taser shock. The employee, who was also being scheduled for pepper-spray training, became concerned that she might be at an increased risk of injury because of her previous heart attack. Her doctor agreed and informed the police chief that she “would not recommend” that either a Taser or pepper spray be used on or near” the employee.

Unpaid administrative leave. The police chief concluded that the restrictions described by the doctor prevented the employee from performing the essential functions of her job. Accordingly, the employee was placed on unpaid administrative leave “until such time [as her doctor] release[d] [her] to return to full and active duty.” The employee was instructed “to complete the necessary FMLA paperwork concerning [her] absence” and told that she could use her accrued paid leave until it was expended. After the employee exhausted her accrued leave, she was terminated.

Comparators. The employee brought suit against the city and police chief alleging race and gender discrimination in violation of Title VII, the Equal Protection Clause of the Fourteenth Amendment, or 42 U.S.C. § 1981. The employer moved for summary judgment. In a response, the employee identified as comparators two white male police officers whom she claimed had been treated more favorably.

The district court granted summary judgment to the city concluding, as to the race- and gender-discrimination claims, that the employee’s “proffered comparators d[id] not qualify under either [the ‘nearly identical’ or the ‘same or similar’] standard.” On appeal, the district court was reversed, and the white male officers were found to be valid comparators for purposes of assessing the employee’s prima facie case. That opinion was vacated and the Eleventh Circuit took this case en banc to clarify the proper standard for comparator evidence in intentional discrimination cases.

“Similarly situated” individual. The Supreme Court has held that in order to make out a prima facie case of discrimination under Title VII, the Equal Protection Clause of the Fourteenth Amendment, or 42 U.S.C. § 1981, a plaintiff must prove, among other things, that she was treated differently from another similarly situated individual. What burden does the phrase “similarly situated” impose on the plaintiff: (1) “same or similar,” (2) “nearly identical,” or (3) some other standard?

In order to survive summary judgment, a plaintiff alleging intentional discrimination must present sufficient facts to permit a jury to rule in her favor. One way to do so is by satisfying the burden-shifting framework set out in McDonnell Douglas. The question presented in this case was whether the employee adequately showed that the employer treated similarly situated employees outside her class more favorably than her. That question, in turn, raised two subsidiary questions. First, should the similarly situated analysis be conducted at the prima facie stage of the McDonnell Douglas framework, as the Supreme Court and Eleventh Circuit have traditionally held, or should it instead be reserved for the pretext stage? Second, in either event, what is the proper standard for determining whether a plaintiff and her comparators are similarly situated?

Assessment of comparators. As an initial matter, the parties agreed that the qualitative assessment of comparator evidence has historically occurred in the plaintiff’s prima facie case. As a consequence, the appeals court declined the employee’s request to “move” the similarly situated comparison out of the initial prima facie stage of the McDonnell Douglas analysis. For starters, the Supreme Court has repeatedly (and consistently) included a comparator-evidence assessment as an element of a plaintiff’s prima facie case. At the prima facie stage the plaintiff must show a potential “winner”—i.e., enough to give rise to a valid inference that her employer engaged in unlawful intentional discrimination.

Because a sufficient prima facie showing gives rise to an inference of unlawful discrimination, “mov[ing]” the comparator analysis out of the initial prima facie stage and into the tertiary pretext stage would make no sense. Therefore, the appeals court had no trouble concluding that a meaningful comparator analysis must remain part of the prima facie case.

Parameters of similarly situated standard. Next, the court turned to consider exactly what sort of showing the phrase “similarly situated” requires a plaintiff to make. The employee urged the court to adopt the Seventh Circuit’s “flexible common-sense” standard pursuant to which the similarly situated requirement is satisfied “[s]o long as the distinctions between the plaintiff and the comparators are not ‘so significant that they render the comparison effectively useless.’” The employer wanted to keep the nearly-identical standard.

Guideposts. The appeals court concluded that neither party’s proposal quite fits the bill. Instead, it held that a plaintiff must show that she and her comparators are “similarly situated in all material respects.” Precisely what sort of similarity the “in all material respects” standard entails will have to be worked out on a case-by-case basis in the context of individual circumstances.

But “we are not without guideposts,” the appeals court noted. Ordinarily a similarly situated comparator (1) will have engaged in the same basic conduct (or misconduct) as the plaintiff; (2) will have been subject to the same employment policy, guideline, or rule as the plaintiff; (3) will ordinarily have been under the jurisdiction of the same supervisor as the plaintiff; and (4) will share the plaintiff’s employment or disciplinary history. Quoting from the Supreme Court’s 2015 decision in Young v. United Parcel Service, Inc., the appeals court concluded that the plaintiff and her comparators must be sufficiently similar, in an objective sense, that they “cannot reasonably be distinguished.”

In this instance, the Eleventh Circuit held that the plaintiff had not made out a prima facie case because she and her proffered comparators were not similarly situated in all material respects.

Partial dissent. Dissenting in part in a lengthy opinion, Judge Rosenbaum noted that the majority correctly defined “similarly situated” within the McDonnell Douglas framework as “similarly situated in all material respects.” But she argued that it one-sidedly implements and interprets this standard to the employer’s redounding benefit. As a result, plaintiffs proceeding by circumstantial evidence in the Eleventh Circuit will have a difficult time surviving summary judgment. In ratcheting up the prima facie stage’s similarly situated standard, the majority defies the purpose of Title VII and the McDonnell Douglas framework. Rosenbaum argued that how the similarly situated inquiry is implemented matters. Further, considering the employer’s nondiscriminatory reasons at the prima facie stage flouts Supreme Court precedent, concluded the dissent.

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