The essence of a discrimination claim is that the employee has been treated differently based on a protected status: race, gender, age, etc. But, differently than whom? It is not surprising that many discrimination cases hinge on whether the victim can point to one or more “comparators” who were treated more favorably. As a result, because both parties are aware of the importance of “comparator” evidence, disputes about whether the comparator is sufficiently similar to the employee claiming discrimination are often contentious. If the employee fails on this issue, the rest of the claim may well be lost.
The recent decision of the 11th Circuit Court of Appeals in Lewis v. Union City exemplifies the differing approaches judges have taken on this issue.
Our previous blog about the Lewis case explained how the Union City, Georgia, Police Department fired detective Jacqueline Lewis, an African-American woman who had suffered a heart attack, whose doctor said she should not be near a Taser during training.
Lewis sued, claiming discrimination. She noted that Sergeant Cliff McClure, a white man who failed the “balance” portion of a physical-fitness test in 2014 (nearly four years after Lewis’s termination) and was given 90 days of unpaid administrative leave to remedy the conditions.
Officer Walker Heard, another white man, was also placed on unpaid administrative leave for 90 days after he failed an “agility” test in 2013 (almost three years after Lewis’s firing). Heard was offered (and ultimately declined) a position as a dispatcher. The offer, however, remained open for over 10 months while Heard negotiated with the City, and he was not fired until 449 days after he was placed on unpaid administrative leave.
The trial judge dismissed the case saying that McClure and Heard were not proper comparators because they were not “similarly situated” to Lewis. The initial three-judge panel of the 11th Circuit disagreed. In a 2-1 decision, the panel said she should get a trial where a jury could decide if Union City had discriminated against her. The other judges of the court, however, decided to take up the case en banc and vacated the panel’s decision.
The Court noted that its earlier decisions on comparator evidence were inconsistent. In 1984, the Court required comparators to be “nearly identical.” In a 1997 case, it was sufficient if the comparators were the “same or similar” to the complainant. In another case, the judges used both standards. “It’s a mess,” the Court said.
The Court’s opinion in Lewis concluded that comparators need to be “similarly situated in all material respects.” The Court said this standard “balances the need to protect employees from invidious discrimination with the deference owed to employers’ rational business judgments, and sensibly serves considerations of sound judicial administration by making summary judgment available in appropriate (but by no means all) cases.” This is the key: when courts defer to “rational” business judgment, they are tipping the scales in favor of the employer and allowing judges to dismiss cases without a trial.
The Court’s majority recognized that comparators do not have to have the same title or even the exact same job activities. However, valid comparators will need to engage in the “same basic conduct,” be subject to the same employment policy, have the same disciplinary history and ordinarily need to be under the same supervisor. Why? “An all-material-respects standard … leaves employers the necessary breathing space to make appropriate business judgments.” Plus, “where the comparators are simply too dissimilar to permit a valid inference that invidious discrimination is afoot,” judges are free to dismiss the case without a trial.
Examining this new standard – and applying it to Lewis’ case — reveals how harmful it is to Civil Rights claimants. Union City argued that McClure and Heard were not similarly situated because the City adopted a new Physical Fitness policy in 2012 – two years after Lewis was fired. Lewis was fired under the Personnel Policy which provides for firing any employee who is absent without leave.The City’s new policy allowed employees 90 days to return to fitness, but the City allowed Heard administrative leave for well over a year before firing him.
The dissenting judges said the outcome “drops an anvil on the employer’s side of the balance.” “[P]laintiffs proceeding by circumstantial evidence in this Circuit will have a difficult time budging the now-off-kilter balance and surviving summary judgment.” Judge Rosenbaum, who wrote the dissent, was on the panel that ruled in Lewis’ favor in the original panel decision.
Both opinions, however, missed a line of U.S. Supreme Court decisions that underscore how comparator evidence can be used in a variety of circumstances. In Miller-El v. Dretke (2005), the Supreme Court used the standards of employment discrimination to denounce the way a prosecutor justified the dismissal of Black jurors. The Court recognized that it would be impossible to find a White juror who was identical to each dismissed Black jury, saying “potential jurors are not products of a set of cookie cutters.”
In Sprint/United Mgmt. Co. v. Mendelsohn (2008), the Court held that evidence from other supervisors was relevant to proving age discrimination. The relevance of evidence is “determined in the context of the facts and arguments in a particular case, and thus [is] generally not amenable to broad per serules.”
The 11th Circuit has failed to recognize that the Supreme Court has opened the door to a wide field of comparator evidence. Instead of respecting how the High Court wants juries to make the final decisions, the 11th Circuit is pointing the way for judges who want to close the courthouse doors to victims of discrimination.
By Richard R. Renner
The case is Lewis v. City of Union City, Georgia, No. 15-11362, 2019 WL 1285058 (11th Cir. Mar. 21, 2019).