A plaintiff asserting a discrimination claim under Title VII must make a preliminary showing that her claims have merit. She can do so in a variety of ways, one of which is by navigating the familiar burden-shifting framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Under that framework, the plaintiff bears the initial burden of establishing a prima facie case of discrimination by proving, among other things, that she was treated differently from another “similarly situated” individual. The Eleventh Circuit has long grappled with the question of just how “similarly situated” a plaintiff and her comparators must be – waffling between a standard of “nearly identical” and “same or similar.”
This confusion came to an end last week in Lewis v. City of Union City, Ga., No. 15-11362 (11th Cir. Mar. 21, 2019), when the Eleventh Circuit sitting en banc held that a plaintiff must demonstrate she and the comparators are “similarly situated in all material respects.” Although the nomenclature is new, the court’s analysis of this standard is a win for employers. As the dissenting judges proclaimed,
[t]oday, the Majority Opinion drops an anvil on the employer’s side of the balance.”
Plaintiff Jacqueline Lewis, an African-American female with the Union City Police Department, was scheduled for taser training. The department required that all officers submit to a five-second taser shock as part of their certification. Lewis brought a doctor’s note stating that, due to a past mild heart attack, she could not participate in this activity. The City put Lewis on indefinite unpaid leave until she could get clearance to submit to a taser shock. While on leave, Lewis said she attempted to get an accommodation and also tried to get information from her doctor to the department. On the twenty-first day, however, the City terminated Lewis, claiming that she had exhausted her accrued leave and had failed to turn in any FMLA paperwork.
Lewis sued under a variety of theories: disability discrimination under the ADA, and race and gender discrimination under § 1981, § 1983, and Title VII. As comparators, Lewis proffered two white men who were put on administrative leave after failing physical fitness tests, but were then given 90-day and 449-day leave periods before being terminated.
The district court granted summary judgment to the City. Pertinent here, the court rejected Lewis’ race and gender discrimination claims because the white male comparators she identified were not “similarly situated.” The court found it dispositive that the white males had failed physical fitness tests, not weapons certification tests. The court also noted that the detective position would put her in proximity to tasers, and therefore she could not be accommodated. Lewis appealed.
First Appellate Decision
The Eleventh Circuit disagreed with the trial court’s conclusion that the two white male officers were not proper comparators because they failed physical tests while Lewis failed weapons training. Although believing the issue to be a close call, the court noted that both the weapons training and physical tests were essential functions of the job. At best, this created an issue of fact about whether the men were proper comparators and therefore summary judgment was improper.
Regardless, the court went on to state that there was enough circumstantial evidence of discrimination surrounding Lewis’s termination (placed on involuntary leave after notifying them of a medical condition, using exhaustion of that involuntary and indefinite leave as the reason for termination, etc.) that summary judgment should not have been granted.
En Banc Decision
The Eleventh Circuit granted the City’s request for rehearing en banc and asked the parties to brief two issues:
- at what stage of the analysis does the court address “similarly situated,” and
- which standard – “nearly identical,” “same or similar” or something else – should be used in gauging comparison evidence.
On the first issue, the court held that “similarly situated” must be resolved at the prima facie stage, before the employer proffers its explanation for the adverse decision. Moving the comparator requirement into a later stage, the court observed, would potentially allow a plaintiff to prevail without any evidence of dissimilar treatment. Because “establishing a prima facie case of discrimination entitles the plaintiff to judgment . . . if the employer either can’t, won’t, or doesn’t provide a nondiscriminatory explanation for its actions, “the plaintiff “must [first] show a potential winner.” “It is only by demonstrating that her employer has treated ‘like’ employees differently . . . that a plaintiff can supply the missing link and provide a valid basis for inferring unlawful discrimination.”
Turning to the standard question, the court rejected both parties’ arguments and instead opted to create its own test. First, as to Lewis’s preferred yardstick – which she labeled a “flexible, common-sense standard” – the court found it fatally “loos[e] [and] depart[ing] too dramatically from the essential sameness that is necessary to a preliminary determination that the plaintiff’s employer has engaged in unlawful ‘discrimination.'”
Moreover, “[b]y permitting cases to proceed on the most meager showing of similarity between a plaintiff and her comparators, Lewis’s . . . standard would thrust courts into staffing decisions that bear no meaningful indicia of unlawful discrimination.” The majority also noted this standard would “effectively eliminate summary judgment as a tool for winnowing out meritless claims.”
The court was just as unimpressed with the City’s argument to proceed with a “nearly identical” standard, explaining “there is a risk that litigants, commentators, and (worst of all) courts have come to believe that it requires something akin to doppelganger-like sameness.” Exact correlation, the court noted, “is neither likely nor necessary” to show discrimination.
Ultimately, the court concluded “that a plaintiff proceeding under McDonnell Douglas must show that she and her comparators are ‘similarly situated in all material respects.’” Focusing on “material” similarities, the court explained, will ensure that “a valid comparison [turns] not on formal labels, but rather on substantive likeness.”
Thankfully the court did not stop with this general language, but also provided a handy (non-exhaustive) checklist of possible material connections: “engaged in the same basic conduct (or misconduct)”; “subject to the same employment policy, guideline, or rule”; “under the jurisdiction of the same supervisor”; “share [an] employment or disciplinary history.” In sum:
An employer is well within its rights to accord different treatment to employees who are differently situated in ‘material respects’-e.g., who engaged in different conduct, who were subject to different policies, or who have different work histories. Finally, the all-material-respects standard serves the interest of sound judicial administration by allowing for summary judgment in appropriate cases-namely, where the comparators are simply too dissimilar to permit a valid inference that invidious discrimination is afoot.”
With the new standard in hand, the court turned to the facts before it and affirmed the district court’s conclusion that Lewis had not demonstrated valid comparators. “Lewis and her [white male] comparators were placed on leave years apart and pursuant to altogether different personnel policies and, perhaps even more importantly, for altogether different conditions.”
Lewis was terminated under a general personnel policy for overstaying leave, while the comparators were “placed on leave for 90 days to remedy the problems that caused their failures” to meet fitness standards. Furthermore, the white male officers’ conditions were deemed remediable, while Lewis’s heart condition was chronic (i.e., “Lewis’ doctor never cleared her for taser training”).
The dissent (twice the length of the majority) concurred in the “material respects” rubric but balked at the rigor of the majority’s application of the test: “Today, the Majority Opinion drops an anvil on the employer’s side of the balance.”
The dissenters would hold that, under the appropriately generalized standard, Lewis presented enough to advance to the next stage of the McDonnell Douglas test. “Lewis and her comparators had similar job responsibilities, had similar job titles, had similar seniority, and were supervised by the same person[.] And most important, the [City] put all three on involuntary administrative leave for being physically unfit for duty.”
The Eleventh Circuit’s decision is notable for two things. First, it clarified the standard to be used going forward for comparator evidence. The plaintiff and her proffered comparators must be “similar in all material respects” to create an actionable case of discrimination. This standard will need to be applied on a case-by-case basis, but thankfully the court’s opinion provides several guideposts to help litigants.
Second, the court has firmly placed the comparator burden at the first stage of the McDonnell Douglas framework. This is in contrast with other circuits, which could spurn Supreme Court review to settle the circuit split.