Executive Summary: On March 21, 2019, in Lewis v. Union City, No. 15-11362, the U.S. Court of Appeals for the Eleventh Circuit (1) clarified the proper standard for the comparator analysis in intentional discrimination cases under the McDonnell Douglas burden-shifting framework and (2) held that a qualitative comparator analysis remains part of the initial prima facie stage of the McDonnell Douglas framework.
Jacqueline Lewis, an African-American female police officer, claimed the Union City, Georgia Police Department terminated her employment due to her race and gender in violation of Title VII and 42 U.S.C. § 1981, and discriminated against her on the basis of her disability in violation of the Americans with Disabilities Act (ADA). Lewis worked from 2001 until 2008 as a patrol officer and was promoted to detective in 2008. She suffered a heart attack in 2009, but was cleared to work without restrictions.
In 2010, the police chief implemented a new policy requiring all officers to carry Tasers. As part of Taser training, officers had to receive a five-second Taser shock. Further, Lewis was scheduled for pepper spray training. Lewis and her doctor agreed that due to "several chronic conditions including a heart condition," Lewis might have an increased risk of injury. The chief concluded that Lewis would be prevented from performing the essential duties of her job because, as a detective, she would, at the very least, be "near" pepper spray. She was then placed on unpaid administrative leave and instructed to complete Family and Medical Leave documentation to cover her absence. Lewis failed to complete the documentation and was discharged when her accrued leave was exhausted.
To support her sex and race discrimination claims, Lewis identified two white male City police officers she claimed were treated more favorably than her. Both officers failed fitness tests several years after Lewis's termination. One officer was given 90 days of unpaid administrative leave to pass the test; he subsequently passed the exam and returned to work. The other officer was placed on unpaid administrative leave for 449 days (which included an offer and declination of a dispatch position) before he was terminated because he could not demonstrate his fitness to be a patrol officer.
The district court granted summary judgment on the claims of race and gender discrimination, holding that Lewis's proffered comparators did not qualify under the "nearly identical" or "similarly situated" standards, and thus, she did not meet her prima facie case. On appeal, in 2017, a panel of the Eleventh Circuit reversed the district court's grant of summary judgment, holding that Lewis presented enough evidence to create a genuine issue of material fact as to such claims. Subsequently, the Eleventh Circuit, sitting en banc, vacated the 2017 panel opinion and issued this decision to clarify the proper standard for comparator evidence in intentional discrimination cases.
The Eleventh Circuit's Decision
The Eleventh Circuit first acknowledged the conflicting standards for comparator analysis within the Circuit—including "nearly identical," "same or similar," and a hybrid of the two—and opined that the jurisprudence was "a mess." The court also considered Lewis's proposed "so-long-as-the-comparison-isn't-useless" test, which has been embraced by the Seventh Circuit.
In a self-professed effort to "clean up, and clarify once and for all the proper standard for comparator evidence in intentional-discrimination cases," the court held that a plaintiff alleging intentional discrimination must show that "she and her proffered comparators were similarly situated in all material respects." The court provided examples of similarities between a plaintiff and a proffered comparator that would support a valid comparison, including:
- engaging in the same basic conduct;
- having been subject to the same employment policy or rule;
- being under jurisdiction of the same supervisor; and
- sharing the same employment or disciplinary history.
The court reasoned that, under this standard, a valid comparison would turn on substantive likenesses instead of formal labels. The court went on to hold that Lewis's proffered comparators were not similarly situated in all material respects and, therefore, she failed to establish a prima facie case of discrimination.
The court also examined Lewis's contention that a qualitative comparator analysis should be moved from the initial prima facie stage of the McDonnell Douglas analysis and into the third-tier pretext stage. The court dismissed this argument, stressing that the qualitative assessment of comparator evidence has "historically" been a part of the plaintiff's prima facie case and noted that Lewis herself had recited this black letter law as support for her prima facie case. The court also explained that the Supreme Court has located the comparator analysis in McDonnell Douglas' prima facie case for "good reason" because the plaintiff's burden "at step one" is to a show a prima facie case of "something in particular—namely, unlawful intentional discrimination." And since, "[b]y its very nature... discrimination is a comparative concept[,]" the comparison remains part of the prima facie case.
Employers' Bottom Line
The court's decision sheds light on what differences between employees are significant enough to warrant different treatment of employees. If employees are different in trivial ways, but similar in important ways, courts in the Eleventh Circuit may be inclined to deem them comparators for purposes of intentional employment discrimination cases. Employers in Florida, Georgia, and Alabama should ensure they are evaluating potential discrimination claims in light of the Eleventh Circuit's recent case law.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.