A recent decision from the federal appellate court that decides the legal standards for employment discrimination claims in Florida federal courts made it much easier for employers to defend against employment discrimination lawsuits. Under federal law, a plaintiff’s burden in an intentional-discrimination claim includes the burden to present evidence of other individuals who are “similarly situated”, i.e. “comparators”. The Eleventh Circuit Court of Appeals has historically interpreted the term “similarly situated” in divergent ways, causing uncertainty as to the application of that standard. In its recent decision in Lewis v. City of Union City, Georgia, 918 F.3d 1213 (11th Cir. 2019), the Eleventh Circuit clarified the standard for comparator evidence in intentional-discrimination cases as “similarly situated in all material respects.” Peter Mavrick is a Florida employment lawyer who defends businesses and management against employment discrimination lawsuits as well as claims alleging discrimination that are filed with the Equal Employment Opportunity Commission (EEOC) and the Florida Commission on Human Relations.
In Lewis v. City of Union City, Georgia, Jacqueline Lewis (“Lewis”), an African-American female police detective, returned to work after a heart attack in 2009. Lewis was cleared to work without restrictions. In 2010, the Police Chief announced a new policy requiring all officers to carry Tasers. The new policy required training in which officers had to receive a five-second Taser shock. Lewis feared being injured because of her earlier heart attack. Lewis’s doctor described her condition as “several chronic conditions including a heart condition,” and recommended that Lewis should have a Taser or pepper spray be used either “on or near” her. Lewis informed the Police Chief of her doctor’s recommendation.
Under the new policy, Lewis would inevitably be “near” pepper spray and tasers. The Police Chief concluded that the restrictions described by Lewis’s doctor prevented her from performing the essential duties of her job. Lewis was placed on unpaid administrative leave until her doctor released her to return to full and active duty. Lewis was instructed to complete the necessary FMLA paperwork concerning her absence and told that she could use her accrued paid leave until it was expended. Lewis exhausted all of her accrued leave but did not complete the FMLA paperwork. As a result, her absence was deemed unapproved and she was terminated pursuant to police policy on unapproved absences.
Lewis 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 (ADA) (hereinafter “Civil Rights Act”). The trial court granted defendants’ motion for summary judgment. Lewis appealed. The Eleventh Circuit panel affirmed in part, reversed in part, and remanded. Defendants immediately filed petition for rehearing en banc. The Eleventh Circuit granted the motion for rehearing en banc.
The question before the en banc court is whether Lewis adequately showed that the City treated “similarly situated” employees outside her class more favorably than her. In order to oppose a motion for summary judgment, a plaintiff must present sufficient facts to permit a reasonable jury to rule in her favor. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) set forth a test which provides a way for a plaintiff to establish a prima facie case of discrimination. The McDonnell Douglas test places the initial burden on plaintiff to show, among other things, that Lewis was treated differently from her comparator(s). Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 258–59, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).
Before Lewis v. City of Union City, Georgia, the Eleventh Circuit’s interpretation of the term “similarly situated” varied from case to case. In some cases, the Eleventh Circuit interpreted the phrase to mean that the comparator must be “nearly identical” to the plaintiff, i.e. an apples-to-apples comparison. In other cases, the Eleventh Circuit interpreted the phrase to mean that the plaintiff and the comparator must have engaged in the “same or similar conduct.”
Lewis v. City of Union City, Georgia rejected the “nearly identical” standard, because it only has application in workplace-misconduct cases. The same-or-similar standard was not applied because none of the parties asserted it and the en banc court assessed the standard as simultaneously too strict and too lenient, and thus incoherent. Instead, Lewis v. City of Union City, Georgia held that a plaintiff must show that she and her comparators are “similarly situated in all material respects.” Under this standard, a valid comparison will turn on substantive likenesses, rather than on formal labels. Therefore, the relevant inquiry under this standard is whether the employer subjected the plaintiff and the comparator(s) to different employment policies. Id.
Lewis v. City of Union City, Georgia held that Lewis’ comparators were not similar to Lewis “in all material respects” because the two comparator officers were placed on leave due to deficient physical-fitness benchmarks that were remediable. Lewis, however, failed a training requirement because of a chronic heart condition that she characterized as “permanent”. Consequently, the en banc court found that the comparators were not subjected to the same employment policy. In addition, Lewis was never cleared by her doctor to participate in the required training, unlike one of her two comparators. The Eleventh, en banc, therefore found in favor of the defendants and remanded the case back to the Eleventh Circuit panel.
Peter Mavrick defends Florida businesses in discrimination litigation 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: www.mavricklaw.com; Telephone: 954-564-2246; Address: 1620 West Oakland Park Boulevard, Suite 300, Fort Lauderdale, Florida 33311.