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Employees who are terminated because of their poor performance or conduct sometimes accuse their former employers of employment discrimination.  Employment discrimination claims can be based on a variety of “protected categories,” such as race, national origin, sex, or age discrimination. Such claims are most commonly asserted under federal law (such as Title VII of the Civil Rights Act of 1964 or the Age Discrimination in Employment Act) or under Florida law (under the Florida Civil Rights Act of 1992).  Courts, however, have placed important safeguards to prevent former employees from bringing claims of discrimination when they do not have evidence to support their claims.  Without evidence directly showing that there was a discriminatory motive behind the employee’s termination, the employee must usually show that he or she was treated differently than other similarly situated employees who are not members of the protected class.  Courts often will enter summary judgment against employees who neither present direct evidence of discrimination nor can identify relevant “comparator” employees who were allegedly treated better.  The employee-comparator who was allegedly treated better than the plaintiff must be “similarly situated” to the disgruntled employee “in all material respects.”  Peter Mavrick is Fort Lauderdale employment attorney with extensive experience in defending businesses and their owners against claims alleging employment discrimination, retaliation, and unpaid wages.  The Mavrick Law Firm also defends the interests of employers in Miami, Boca Raton, and Palm Beach.

Employers need not endure the time and expense of a full trial when a former employee makes a baseless claim of employment discrimination.  When a disgruntled employee does not have direct or statistical evidence of discrimination, the employer will likely prevail in summary judgment by showing that the disgruntled employee’s claimed employee-comparators are not sufficiently similar to the employee in all material respects.

“A plaintiff may prove a claim of intentional discrimination through direct evidence, circumstantial evidence, or statistical proof.”  Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253 (11th Cir. 2010).  Direct evidence of discrimination is evidence which unambiguously shows an employer had a discriminatory motive.  Wilson v. B/E Aerospace, Inc., 376 F.3d 1079 (11th Cir.2004) (“[O]nly the most blatant remarks, whose intent could mean nothing other than to discriminate on the basis of some impermissible factor constitute direct evidence of discrimination”).  When an employee does not have direct evidence or statistical evidence to prove discrimination, the employee must usually prove discrimination through the McDonnell Douglas test.  This test generally requires that the employee show that “(1) he was a member of a protected class; (2) he was qualified to do the job; (3) he was subjected to an adverse employment action; and (4) similarly-situated employees outside of the protected class were treated differently.”  Hester v. Univ. of Alabama Birmingham Hosp., 798 Fed. Appx. 453 (11th Cir. 2020).

Employers often prevail in summary judgment by showing that the employee’s alleged comparators are not sufficiently similarly-situated to the disgruntled employee.  The comparators do not need to be identical.  McCann v. Tillman, 526 F.3d 1370 (11th Cir. 2008) (explaining that the requirement that the comparators be“‘[n]early identical’ … does not mean ‘exactly identical’”).  However, the comparators must be “similarly situated in all material respects.”  Lewis v. City of Union City, Georgia, 918 F.3d 1213 (11th Cir. 2019).

In Knox v. Roper Pump Co., 2020 WL 2078291 (11th Cir. Apr. 30, 2020), the Eleventh Circuit Court of Appeals, i.e., the federal appellate court in charge of all federal courts in the State of Florida, re-affirmed the principle that comparators must be sufficiently similarly situated.  The plaintiff in Knox was an African American man who was suspended and later terminated after his adult daughter claimed that the plaintiff had gotten into a physical altercation with her.  The Knox plaintiff claimed that there were three Caucasian employees who had received better treatment after their own violent altercations.  Knox found that each claimed comparator was not sufficiently similar to the Knox plaintiff and entered judgment against the employee for his discrimination claims.  Particularly, Knox found that the first comparator was not similarly situated because the physical altercation he had been involved in was between an employee and a non-employee, whereas, the alleged victim in Knox was also an employee.  The other two alleged employee-comparators were co-workers who were involved in a fistfight while working.  Knox found that they were not proper comparators because those employees had in fact been terminated following the fight, but were only permitted to return to work out of business necessity.  Additionally, the manager who determined the discipline for the two employees in a fistfight was different than the one who disciplined the Knox plaintiff.  Knox explained that “[d]ifferent supervisors may have different management styles that — while not determinative — could account for the disparate disciplinary treatment that employees experience.”

Peter Mavrick is a Fort Lauderdale employment lawyer who defends businesses against claims of alleged discrimination, retaliation, and unpaid wages in Florida state and federal courts and claims before the EEOC and Florida Commission on Human Relations.  The Mavrick Law Firm also defends businesses in Miami, Boca Raton, and Palm Beach.  This article does not serve as a substitute for legal advice tailored to a particular situation.

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