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Lee v. Kansas City Southern Ry., No. 08-30444 (5th Cir. June 30, 2009); McNamara v. Yellow Transportation, Inc., No. 08-2654 (8th Cir. July 1, 2009)

| Jun 30, 2009 | Daily Developments in EEO Law |

Happy Canada Day! The Fifth Circuit sends a race discrimination case back for trial, after the district court applies a too-narrow test of “similarly-situated” to measure the plaintiff’s prima facie test. The Eighth Circuit compels arbitration of Title VII and FMLA claims, finding that an employee at a call center who possibly facilitated shipping was not a “transportation” worker for purposes of the Federal Arbitration Act.

Lee v. Kansas City Southern Ry., No. 08-30444 (5th Cir. June 30, 2009):  Lee, a train engineer who is African-American, was fired for blowing a signal.  Specifically, he was charged in 2004 with “(1) failing to stop at the red block signal, and (2) failing to radio his dispatcher for permission to enter on to the second track. Although no damage or injury resulted from Lee’s errors, KCS considers them to be among the most serious type of moving violations for which termination may be appropriate.”  And because Lee had a record of other moving violations (and suspensions), the railroad this time fired him for keeps. 

The principal issue on appeal was why a white employee named Bickham — with a comparable track record of violations and who likewise failed to stop a signal in 2004 –received leniency and was allowed to keep his job.  (The plaintiff alleged retaliation and FMLA violations; summary judgment on these claims were affirmed.)

The panel holds that the district court required too close an identity between Lee and his white comparators.  The opinion clarifies the appropriate standard (footnotes and citations omitted):

“We have considered the requirement for one employee to be similarly situated to another on any number of occasions. Employees with different supervisors, who work for different divisions of a company or who were the subject of adverse employment actions too remote in time from that taken against the plaintiff generally will not be deemed similarly situated. Likewise, employees who have different work responsibilities or who are subjected to adverse employment action for dissimilar violations are not similarly situated. This is because we require that an employee who proffers a fellow employee as a comparator demonstrate that the employment actions at issue were taken ‘under nearly identical circumstances.’ The employment actions being compared will be deemed to have been taken under nearly identical circumstances when the employees being compared held the same job or responsibilities, shared the same supervisor or had their employment status determined by the same person, and have essentially comparable violation histories. And, critically, the plaintiff’s conduct that drew the adverse employment decision must have been ‘nearly identical’ to that of the proffered comparator who allegedly drew dissimilar employment decisions. If the ‘difference between the plaintiff’s conduct and that of those alleged to be similarly situated accounts for the difference in treatment received from the employer,’ the employees are not similarly situated for the purposes of an employment discrimination analysis.

“We do not, however, interpret ‘nearly identical’ as synonymous with ‘identical.’ Applied to the broader circumstances of a plaintiff’s employment and that of his proffered comparator, a requirement of complete or total identity rather than near identity would be essentially insurmountable, as it would only be in the rarest of circumstances that the situations of two employees would be totally identical. For example, it is sufficient that the ultimate decision-makers to employees’ continued employment is the same individual, even if the employees do not share an immediate supervisor. Each employee’s track record at the company need not comprise the identical number of identical infractions, albeit these records must be comparable. As the Supreme Court has instructed, the similitude of employee violations may turn on the ‘comparable seriousness’ of the offenses for which discipline was meted out and not necessarily on how a company codes an infraction under its rules and regulations. Otherwise, an employer could avoid liability for discriminatory practices simply by coding one employee’s violation differently from another’s.”

The panel finds that while the railroad pointed to distinctions between the circumstances of the plaintiff and Binkham, the proper stage for addressing these difference is the final, “pretext” step:

“They held identical positions at KCS, compiled a similar number of serious moving violations over a similar period of time, including an identical infraction for which Lee was fired and Bickham was granted leniency, and their ultimate employment status rested with the same person. We should not be understood to say that the distinctions noted by KCS are not relevant; indeed they might very well prove to be relevant in the event that KCS proffers a legitimate nondiscriminatory explanation for the disparate results in Lee’s and Bickham’s cases. But our sole task today is to determine whether Lee satisfied his burden of establishing a prima facie case; and we hold that, by validly identifying Bickham as a comparator, he has.”

McNamara v. Yellow Transportation, Inc., No. 08-2654 (8th Cir. July 1, 2009):  The FAA — the federal vehicle for enforcing arbitration agreements in interstate commerce — does not apply to “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” 9 U.S.C. § 1. The Supreme Court, in Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001), interpreted this exemption as “limited to transportation workers, defined . . . as those workers actually engaged in the movement of goods in interstate commerce.”  Occasionally we encounter gray-area cases, such as dispatchers or local delivery carriers who cross state lines.  Plaintiff here  sought to have his call-center job judicially decreed “transportation” work to avoid arbitration, but the Eighth Circuit doesn’t bite:  “His allegations vaguely allege some interaction with shipping customers but do not show that his duties differed materially from the Customer Service Representatives whom he supervised (except for the fact that he was a supervisor or manager over them).”  (Indeed, counsel for plaintiff, in framing the argument, painfully relied on a district court decision against the same defendant  that was subsequently reversed by the Eighth Circuit.)

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