The Eleventh Circuit heightens the probability of Supreme Court review of a long-festering circuit split: just how "similarly situated" must a Title VII plaintiff be to a comparator employee in the workplace to establish a prima facie case of discrimination? The en banc court holds 9-3 that a plaintiff must demonstrate, at the first stage of the analysis, that she and the comparators were "similarly situated in all material respects."
Lewis v. City of Union City, Ga., No. 15-11362 (11th Cir. Mar. 21, 2019) : The Eleventh Circuit itself had an intra-circuit split on the proper standard under the McDonnell Douglas burden-shifting method, with different panels citing "same or similar," "material respects," and "nearly identical" standards. The prior panel majority in this case used the "material respects" rubric. (The panel decision in this case was previously blogged here.)
Other circuits have used a range of phraseologies. The en banc majority opinion notes the Seventh Circuit's standard that tolerates difference between plaintiffs and comparators "[s]o long as the distinctions between the plaintiff and the proposed comparators are not 'so significant that they render the comparison effectively useless'" (quoting Coleman v. Donahoe, 667 F.3d 835, 846 (7th Cir. 2012)).
In this case, the comparison was between a Black woman detective and two other white male detectives, all of whom came up short on a physical fitness requirement. The plaintiff was terminated, while the comparators were supposedly afforded a greater opportunity to correct their failures or obtain alternative employment. The issue was whether beyond this general level, the circumstances were similar enough to suggest discrimination.
Lewis had a heart condition, though she was cleared to work in law enforcement. When the department acquired tasers and required all officers to carry them, the department required that all officers submit to a five-second Taser shock as part of their training. Lewis's doctor (Harris) refused to clear her for this exercise. Lewis was placed on unpaid administrative leave on June 17, 2010 until she could get clearance to submit to a Taser shock. After Lewis's accrued leave time was exhausted, the department fired her for supposedly being absent without leave.
The district court granted summary judgment on all of plaintiff's Title VII, § 1981 and § 1983 claims. (The plaintiff also filed Americans With Disabilities claims; the original panel reversed summary judgment in part on these, and the en banc court did not address them, remanding them to the district court.) The original panel majority held that the plaintiff presented a genuine dispute of material facts both on her prima facie case - in particular, identification of comparable employees - and on the ultimate question of whether the department's proffered reasons for her termination were a pretext for discrimination.
The en banc court affirms summary judgment. The majority opinion therein answers two questions of law: (1) at what stage of the analysis does the court address "similarly situated," and (2) how restrictive ought the standard be?
On the first issue, the majority holds that "similarly situated" must be resolved at the prima facie stage, before the employer proffers its explanation for the adverse decision. Because "establishing a prima facie case of discrimination entitles the plaintiff to judgment-to victory-if the employer either can't, won't, or doesn't provide a nondiscriminatory explanation for its actions," it is therefore fitting that the plaintiff at that stage "must show a potential 'winner'-i.e., enough to give rise to a valid inference that her employer engaged in unlawful intentional 'discrimination.'" Thus, "[a]bsent a qualitative comparison at the prima facie stage-i.e., without determining whether the employer treated like cases differently-there's no way of knowing (or even inferring) that discrimination is afoot."
On the second issue, the majority weighs the parties' proposed "similarly situated" standards and rejects them both. "In assessing the parties' positions-and adopting our own-we take as our lodestars (1) the ordinary meaning of the term 'discrimination' and (2) the twin policies that the Supreme Court has said animate the McDonnell Douglas framework's prima facie case," i.e., to eliminate "the most common nondiscriminatory reasons" for an employer's conduct, and to provide a sound basis for an "inference of unlawful discrimination."
The majority finds Lewis's preferred yardstick - the Seventh Circuit standard - fatally "loos[e] ... 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 not-useless standard would thrust courts into staffing decisions that bear no meaningful indicia of unlawful discrimination." Supposedly it would also "effectively eliminate summary judgment as a tool for winnowing out meritless claims (although, as a litigator in the Seventh Circuit, I can assure that is not the case there!). On the other hand, with the nearly-identical standard, "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."
Under the all-material-respects standard, the majority provides 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."
Applying this standard, the majority affirms summary judgment. "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, under a fitness policy adopted after Lewis's termination, 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's doctor never cleared her for Taser training").
The 73-page dissent (twice the length of the majority), signed by Judge Rosenbaum, concurs in the "material respects" rubric but challenges both the placement and the rigor of panel majority's test: "Today, the Majority Opinion drops an anvil on the employer's side of the balance."
The dissenters, in terms of placement, would require only "a generalized application of the 'similarly situated' standard at the initial, prima facie juncture and a more particularized one at the pretext phase of the framework-after the employer has satisfied its burden of coming forward with its nondiscriminatory reason for adverse action." As they summarized the law:
"At the prima facie stage, we match characteristics to determine only whether the plaintiff and her comparators are similar enough that we can confidently rule out discrimination as a basis for the employer's action-without hearing the employer's reason for its action and without allowing the plaintiff an opportunity to cast doubt upon that articulated reason. And at the pretext stage, we evaluate characteristics to ascertain only whether the plaintiff and her comparators are similar enough that we cannot confidently rule out discrimination as a basis for the employer's action-even considering the plaintiff's efforts to show pretext."
If the similarly-situated standard "is turned up too high at the prima facie stage, it sweeps in the employer's nondiscriminatory reasons," essentially importing the pretext analysis to the beginning of the case contrary to Supreme Court authority. The prima facie case was intended to demand only moderate proof because "[a]n employee often finds herself at a significant disadvantage to an employer when it comes to knowing the reasons for the employer's employment decision and to having access to information concerning both that decision and potential comparators." The panel notes that a rigorous prima facie test is in tension with the standards of other circuits, creating a split.
The dissenters would also hold that, under the appropriately generalized prima facie 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, Odom. And most important, the Department put all three on involuntary administrative leave for being physically unfit for duty. Yet Lewis presented evidence that the Department gave Lewis just 21 days of administrative leave while affording McClure and Heard 90 and 449 days of administrative leave, respectively."
Overall, the en banc court has set a course that - unless altered by the Supreme Court - markedly escalates the plaintiff's burden to plead and prove discrimination in that circuit, in contrast with sister circuits that place the burden mostly in the final phase of McDonnell Douglas. It presents as sharp a conflict as we will see on this question, and a spur to the Supreme Court to revisit that method of proof under federal discrimination law.