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A plaintiff alleging intentional discrimination must present sufficient facts to permit a jury to rule in his or her favor. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) established a burden-shifting framework to test the sufficiency of the facts in plaintiff’s discrimination claim. Under McDonnell Douglas, the plaintiff bears the initial burden of establishing a prima facie case of discrimination by showing (1) that he or she belongs to a protected class, (2) that he or she was subjected to an adverse employment action, (3) that he or she was qualified to perform the job in question, and (4) that his or her employer treated “similarly situated” employees outside her class more favorably. If the plaintiff succeeds in making out a prima facie case, the burden of proof then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its actions. If the defendant carries its burden, then the plaintiff must demonstrate that the defendant’s proffered reason was merely pretext for unlawful discrimination. Peter Mavrick is an employment lawyer who has extensive experience with defending Florida employers sued for employment discrimination.

In a previous article, the Mavrick Law Firm discussed the new federal law standard for “similarly situated” comparators decided by the federal Eleventh Circuit Court of Appeals case of Lewis v. City of Union City, Georgia, 918 F.3d 1213 (11th Cir. 2019).  As further detailed herein, Lewis v. City of Union City, Georgia helps Florida employers in their defense against baseless employment discrimination claims by imposing a heightened burden on employee plaintiffs: the federal appellate court required employee-plaintiffs to clearly articulate the “comparator” basis for the claim that allows employers to obtain dismissal early in the lawsuit instead of having to expend money in discovery to prove the claim was meritless from the very beginning.  In the words of the federal court decision, the appellate court required that the comparator analysis must take place in the plaintiff’s initial prima facie claim before the burden shifts to the employer-defendant.

The facts of the case are simple.  Jacqueline Lewis (“Lewis”) a former police officer, filed a lawsuit alleging that she was terminated based on her race, gender, and disability in violation of § 1981, Equal Protection Clause, Title VII, and Americans with Disabilities Act. The federal district court judge granted summary judgment to the defendant, concluding that Lewis’ proffered comparators did not qualify under the similarly situated standard. Lewis appealed. The Eleventh Circuit affirmed the judgment in part, reversed it in part, and remanded it to the district court. Defendant petitioned for rehearing en banc. On rehearing en banc, Lewis argued that the “similarly situated” comparison should be removed from the initial prima facie stage of the McDonnell Douglas analysis and instead moved into the latter “pretext” stage. In other words, Lewis contended she should not have to prove that her former employer treated comparators more favorably until after the former employer articulated a legitimate, nondiscriminatory reason for its termination of her employment. The Eleventh Circuit disagreed and ruled against the employee-plaintiff.

The Eleventh Circuit reasoned that discrimination, by its very nature, is a comparative concept and requires an assessment of whether like people or things are being treated differently. A sufficient prima facie showing gives rise to an inference of unlawful discrimination. Lewis v. City of Union City, Georgia, supra. The Eleventh Circuit held that if Lewis’ request were granted, an absurd result would follow: a plaintiff could demonstrate a potential winning discrimination case at step one by satisfying only the first three prongs of the traditional prima facie case. “Absent 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.” Lewis v. City of Union City, Georgia, supra.

Under Lewis’ proposal, a qualified minority employee who was fired could easily establish a prima facie case of discrimination due to the absence of possible nondiscriminatory reasons for his or her termination. Lewis v. City of Union City, Georgia stated that in order to defeat summary judgment, a Title VII plaintiff must initially demonstrate that he or she was treated less favorably than other employees who are “similarly situated in all material respects” outside his or her class. The Eleventh Circuit concluded that Lewis was required to demonstrate in her prima facie case that her employer discriminated by treating other “similarly situated” employees differently as a prerequisite to inferring unlawful discrimination. It was held that Lewis failed to meet this burden.

The Lewis decision is very helpful to employers who have been sued in employment discrimination lawsuits because the appellate court imposed a high burden on the employee-plaintiff to specify at the very beginning of the lawsuit the factual basis for the basis of the discrimination claim, including specifics about the comparators.  Before this case, employees often tactically failed to specify the comparator analysis at the beginning of the lawsuit and instead required the employer to effectively “prove its innocence” against vague accusations of employment discrimination.  With this federal appellate decision, employers can successfully attack a meritless employment discrimination claim at the beginning of the lawsuit.

The Mavrick Law Firm defends businesses that have been sued for employment discrimination, retaliation, and wage claims in Broward, Miami-Dade, and Palm Beach Counties, Florida. This article does not serve as a substitute for legal advice tailored to a particular situation.  Peter T. Mavrick can be reached at: Website:; Telephone: 954-564-2246; Address: 1620 West Oakland Park Boulevard, Suite 300, Fort Lauderdale, Florida 33311.

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