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Bobo v. United Parcel Service, Inc., No. 09-6348 (6th Cir. Jan. 9, 2011); Coleman v. Donahoe, No. 10-3694 (7th Cir. Jan. 6, 2011)

Two circuits, the Sixth and Seventh, issue back-to-back decisions criticizing district courts for applying an excessively-stringent standard for proving comparable employees under the McDonnell Douglas test. The Seventh Circuit - in a special concurring opinion by Judge Diane Wood, co-signed by her two co-panelists - goes a step further, and urges the end of this entire line of cases: "Perhaps McDonnell Douglas was necessary nearly 40 years ago, when Title VII litigation was still relatively new in the federal courts. By now, however, as this case well illustrates, the various tests that we insist lawyers use have lost their utility."

Both cases below, coincidently, involve situations where employees were fired for alleged misconduct. In the respective decisions reversing summary judgment, the courts of appeals hold that the district courts erred by preventing plaintiffs from pointing to wider circle of co-workers whose misconduct was arguably comparable but who were not fired.

Bobo v. United Parcel Service, Inc., No. 09-6348 (6th Cir. Jan. 9, 2011): The Sixth Circuit decision reviews claims under the Uniformed Services Employment and Reemployment Rights Act (USERRA), §1981, Title VII, and the Tennessee Human Rights Act (THRA). The employee alleged that he suffered both discrimination - because of his race and because he served in the Army Reserve - and retaliation.

Plaintiff Bobo served as a feeder supervisor, an on-road supervisor certified to train and supervise UPS drivers. He was placed under investigation, and then fired, for supposedly falsifying driver safety ride forms. UPS asserted that Bobo instructed at least two drivers to prepare incomplete ride forms, which he then filled out to make it appear that he rode from Memphis to Albuquerque when he actually rode with them only a few miles.

The plaintiff argued that this falsification rationale was a pretext for the actual reason - that Bobo was scheduled to attend military training, and because he is African-American. He presented evidence that such falsification was widely known to occur at UPS, but that whites (and those not in the Reserve) were routinely excused and not fired.

The Sixth Circuit holds that the district court erred in restricting the inquiry - and Bobo's discovery - to a single employee (named Ronnie Wallace) who UPS claimed was the only employee suitably comparable to plaintiff under the McDonnell Douglas test. The panel concludes that the district court impermissibly narrowed inquiry to an essentially identical employee:

"Contrary to the holding below, Bobo was not required to demonstrate an exact correlation between himself and others similarly situated; rather, he had to show only that he and his proposed comparators were similar in all relevant respects . . . and that he and his proposed comparators engaged in acts of comparable seriousness."

Bobo sought discovery concerning seven employees at There facilities who were not fired in spite of violations of the company's integrity policy. The magistrate judge and district court in turn refused to permit the discovery to proceed. The district court also denied the plaintiff's motion under then Fed. R. Civ. P. 56(f) [now Rule 56(d)] to defer ruling on summary judgment to allow discovery.

The Sixth Circuit describes what it means for employees to be "comparable" under McDonnell Douglas:

"Discrimination cases frequently turn on whether the plaintiff can identify one or more comparators who are similarly situated in all relevant respects. The cases we have cited grapple with the difficulty of applying the 'similarly situated' comparator standard and the danger of treating that standard as requiring exact correlation, in violation of our precedents. [Circuit precedent] and this case also point to the problems inherent in allowing a defendant to control the designation of comparators by simply refusing to provide requested comparator evidence except as to those persons it selects. . . .The refusal of a defendant to disclose requested comparator information denies plaintiff the opportunity to determine whether the evidence actually reveals comparator status and different treatment, critical elements of the claim that the trier of fact must determine."

Because the discovery order crooked the path of the rest of the case, the Sixth Circuit reverses the discovery order, the denial of Rule 56(f) relief and the summary judgment on the discrimination claim.

Along with wrongly disallowing discovery, the panel also holds that even on the truncated record before it, the district court erred on the merits, at least with respect to the discrimination claim. A possible decision maker in the case (on a "cat's-paw" theory, having manipulated the process of identifying and firing plaintiff) was quoted as stating that he did not want Bobo "volunteering for addition al military duty when he was needed at UPS." The panel deems this potentially direct evidence of discrimination in violation of USERRA.

Moreover, regarding the race discrimination claim:

"Reviewing all of the evidence favorably to Bobo, a reasonable jury could logically infer that Bobo's race was a motivating factor in the discharge decision. None of the Caucasian supervisors who violated or were accused of violating the integrity policy suffered employment termination, except Ronnie Wallace. UPS insists that only Wallace and Bobo are similarly situated because they admitted misconduct. But whether the other identified supervisors who did not admit misconduct are similarly situated to Bobo is a jury question."

The court affirms summary judgment, though, on the retaliation claims, finding a lack of causation between Bob's protected activity and the discharge.

Coleman v. Donahoe, No. 10-3694 (7th Cir. Jan. 6, 2011): The Seventh Circuit evaluates the claims of a Postal Service employee that she was terminated for race, gender and retaliatory reasons.

Plaintiff Coleman in 2005 complained internally to management that her new supervisor, named Berry, passed her over for a promotion after she put in more than 30 years of good service, alleging discrimination. The complaint allegedly commenced a downward spiral, including the agency's assignment of physically hazardous work, the issuance of a "Letter of Warning," denial of extended sick leave for surgery, and failure to accommodate her physical limitations when she returned to work.

In July 2005, she checked herself into a psychiatric hospital complaining of depression, anxiety and insomnia, and stating in therapy that she had homicidal thoughts (ideations) about Berry. Although discharged from the hospital as a "model patient," plaintiff's therapist took the extra step of phoning Berry about Coleman's Threatening thoughts confessed in therapy. Coleman was placed on emergency leave and eventually terminated based on "unacceptable conduct, as evidenced by your expressed homicidal ideations toward a postal manager." Coleman eventually successfully grieved the termination and was reinstated without back pay. She also filed EEOC charges against the agency.

The panel notes that the issues in this case are common to many Title VII actions:

"This appeal raises two recurring questions concerning comparator evidence in employment discrimination cases using the indirect method of proof: First, just how alike must comparators be to the plaintiff to be considered similarly situated? Second, can evidence that a similarly situated employee received better treatment serve not only as an element of the plaintiff's prima facie case, but also satisfy the plaintiff's burden to show that the employer's legitimate nondiscriminatory reason for its action was pretextual?"

The panel summarizes its conclusions:

"[T]he proposed comparator must be similar enough to permit a reasonable juror to infer, in light of all the circumstances, that an impermissible animus motivated the employer's decision. Here, Coleman's two white, male co-workers were disciplined by the same decision maker, subject to the same code of conduct, and disciplined more leniently for violating the same rule as she. . . .

"[A]n employment discrimination plaintiff may demonstrate pretext by providing evidence that a similarly situated employee outside her protected class received more favorable treatment. Coleman has done so. The evidence of selective application of the rule against violence and Thereats to Coleman - whose confidential expressions of anger during inpatient psychotherapy were not direct Thereats at all, and who was discharged as stable before the Postal Service even heard about those thoughts - undercuts the Postal Service's assertion that it was just neutrally enforcing its 'no tolerance' policy."

The panel holds that the district court erred in unreasonably narrowing the inquiry of who was similarly situated to Coleman for purposes of McDonnell Douglas. Plaintiff identified white male employees (Arient and Pelletier) who committed actual assaults (one with a knife), but the district court waved these comparator seaside because they had a different supervisor and occupied different titles. Regarding the former, the court finds more important whether the same decision-maker (not the same supervisor) was involved, and in this case the employees shared an operations manager who was involved in both decisions. As to the latter, the record showed that a single set of work rules and disciplinary standards applied across the workplace regardless of job title.

The violations were also, at least arguably, of comparable seriousness under UPS's own rules:

"Arient and Pelletier violated the Postal Service rule that prohibits 'Violent and/or Threatening Behavior' - the same rule Coleman was accused of breaking. That they did not break the rule in precisely the same manner does not mean that summary judgment was appropriate. By directly Threatening another employee with a knife in the workplace, Arient and Pelletier engaged in conduct that appears, at least for purposes of summary judgment, at least as serious as Coleman's indirect 'Thereat' against Berry - and arguably even more so."

The court also notes that district courts have too often demanded addition al proof of bias in the third, "pretext" stage of the case, and this too is error: "a discrimination plaintiff may employ . . . comparator evidence to discharge her burden at the pretext stage as well as to satisfy the fourth element of her prima facie case." In any event, in support of the employee's "pretext" argument, the court takes notice of the special context of any alleged Thereat, in a private psychotherapy session: "It would . . . be troubling to think that anyone who confides to her psychiatrist that she has fantasized about killing her boss could automatically be subject to termination for cause. . . . the Postal Service had good reason to believe that whatever danger Coleman ever posed had subsided by the time she sought to return to work, well after she expressed this thought to her therapist." The panel notes that if the employer honestly believed that the employee sought a Thereat to her boss, in the ordinary course it would have sought a fitness-for-duty evaluation, not simply cut the employee loose.

For comparable reasons, and in light of the suspicious timing of events, the panel also reverses summary judgment on the plaintiff's retaliation claims.

In a concurring opinion by Judge Wood signed by all There panelists, she suggests that the time is ripe for re-evaluation of McDonnell Douglas:

"I write separately to call attention to the snarls and knots that the current methodologies used in discrimination cases of all kinds have inflicted on courts and litigants alike. The original McDonnell Douglas decision was designed to clarify and to simplify the plaintiff's task in presenting such a case. Over the years, unfortunately, both of those goals have gone by the wayside. . . .

* * * *

"Perhaps McDonnell Douglas was necessary nearly 40 years ago, when Title VII litigation was still relatively new in the federal courts. By now, however, as this case well illustrates, the various tests that we insist lawyers use have lost their utility. Courts manage tort litigation every day without the ins and outs of these method of proof, and I see no reason why employment discrimination litigation (including cases alleging retaliation) could not be handled in the same straightforward way. In order to defeat summary judgment, the plaintiff one way or the other must present evidence showing that she is in a class protected by the statute, that she suffered the requisite adverse action (depending on her theory), and that a rational jury could conclude that the employer took that adverse action on account of her protected class, not for any non-invidious reason. Put differently, it seems to me that the time has come to collapse all these tests into one. We have already done so, when it comes to the trial stage of a case. See, e.g., EEOC v. Bd. of Regents of Univ. of Wisc. Sys., 288 F.3d 296, 301 (7th Cir. 2002). It is time to finish the job and restore needed flexibility to the pre-trial stage."

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