• Plaintiff and Employee-Comparator Must Be Nearly Identical to Establish Pretext
  • May 12, 2017 | Author: Craig S. Hudson
  • Law Firm: Marshall Dennehey Warner Coleman & Goggin, P.C. - Fort Lauderdale Office
  • In four separate opinions over the past year, the Eleventh Circuit has been called upon to address the issue of how similar an alleged employee-comparator must be to the employee claiming discrimination for the purpose of arguing that the employer’s alleged reason for its adverse employment action was a pretext. In each case, the Eleventh Circuit made it clear that the plaintiff employee and the employee-comparator “must be nearly identical.”

    The first case in this line is Trask v. Secretary, Department of Veterans Affairs, 822 F.3d 1179, 2016 U.S. App. Lexis 6168 (11th Cir., April 5, 2016). The plaintiffs are two female pharmacists who claimed they were not given the same opportunities as a younger male pharmacist for advanced employer-provided training due to their age and sex. The male pharmacist worked at a different location than the plaintiffs, and he was specifically selected for the advanced training program because the facility where he worked had senior pharmacists who could provide it. The facility where the plaintiffs worked did not have senior pharmacists who could provide the advanced training. The younger male pharmacist also worked in a facility that required him to have the advanced training while the plaintiffs did not. The Eleventh Circuit concluded that the male pharmacist was not a valid comparator to the plaintiffs and, therefore, a pretext could not be established. The Circuit affirmed the District Court’s entry of summary judgment in favor of the employer.

    In an unpublished opinion a few days later in Thaxton-Brooks, M.D. v. Baker, et al., 647 Fed. Appx. 996; 2016 U.S. App. Lexis 6620 (11th Cir., April 12, 2016), the Eleventh Circuit found that the plaintiff employee physician, who was terminated because she failed to pass a board certification test, was not a comparator to a younger physician, who remained on staff because she had not yet completed her residency and was, therefore, ineligible to become board certified. For this reason, the two physicians were not comparable.

    Next, in Banks v. IGOV Technologies, Inc., 2016 U.S. App. Lexis 17615 (11th Cir., September 28, 2016), the court concluded that the plaintiff, a full-time, salaried technical writer with performance and discipline issues, could not validly compare himself to part-time, hourly employees who also had similar performance issues but who had less expectations (because they were part-time) and had fewer performance issues than the plaintiff.

    Most recently in Sapp v. U.S. Attorney General, 2017 U.S. App. Lexis 931 (11th Cir., Jan. 19, 2017), the Circuit Court was asked to test the plaintiff’s alleged comparator. In Sapp, both the plaintiff and the alleged comparators were subject to disciplinary investigations by their employer, the Bureau of Federal Prisons. While the plaintiff’s disciplinary actions were being investigated and charges were pending, he was temporarily reassigned and denied requests for overtime. He claimed that he was being retaliated against because of his gender and due to an intimate relationship he once had with his female supervisor. The plaintiff pointed to other female officers who were also being investigated and whose disciplinary actions were pending, but who were not reassigned and remained eligible for overtime. In affirming the District Court’s entry of summary judgment, the Eleventh Circuit determined that the female officers were not sufficient valid comparators to the plaintiff because they worked in different departments and had different duties.

    These cases emphasize that, while plaintiffs may establish pretext by offering evidence that a similarly-situated employee outside of the protected class was treated more favorably than the plaintiff employee, the comparator must be similarly-situated in all relevant respects. Practitioners defending claims or claims professionals evaluating discrimination cases should look closely at all plaintiffs and alleged comparators to identify differences between the two. This includes not only training experience, but also different duties, locations, and each employee’s performance and discipline history.