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Rare is the employment discrimination case where there is direct evidence of discrimination (i.e., a statement or action by the decision-maker which bears directly on his or her intent to discriminate). This is perhaps truer now than ever before. In fact, since the enactment of Title VII of the Civil Rights Act of 1964, employers have become much more sensitized to the issue of discrimination in the workplace. One explanation for this change may be grounded in the simple reality that in today’s business environment, employees are more willing than ever to challenge management’s actions. Indeed, challenging authority was an important cultural distinction of the “baby boom” generation, which now holds a prominent place in today’s business world, as do the younger entrants into the work force, many of whom are also no longer willing to blindly accept management directives. Our society has also been bombarded in recent years with news stories about the most egregious employment practices being challenged in court. Given these sociological changes over the past 35 years, most employers now realize the importance of treating their employees fairly not only because it is the right thing to do, but also because it makes good business sense from an economic and competitive viewpoint. Equitable treatment of employees not only reduces employers’ exposure to potential claims, but it provides businesses a better chance of hiring and retaining qualified employees in perhaps the most fluid job market in history. Apart from these cultural and societal changes, some would argue that many employers have found more subtle ways to discriminate against certain classes of individuals. While there may be some truth to each of these explanations, the bottom line is employers now will rarely openly discriminate against employees. Therefore, the indirect McDonnell Douglas [FOOTNOTE 1]method of proving discrimination has taken on added importance. Under this framework, the most critical component requires the plaintiff to establish, as part of his/her prima facie case, that “similarly situated” individuals were treated better. Although this concept may appear to be fairly straightforward, the courts have struggled to determine which employees are truly comparable. THE MITCHELL V. TOLEDO HOSPITALDECISION Perhaps the most influential pronouncement regarding the “similarly situated” standard came from the Sixth Circuit in 1992 in the decision of Mitchell v. Toledo Hospital. [FOOTNOTE 2]In Mitchell, the Sixth Circuit stated, “It is fundamental that to make a comparison of a discriminated plaintiff’s treatment to that of non-minority employees, the plaintiff must show that the ‘comparables’ are similarly-situated in all respects.” [FOOTNOTE 3]The court then held, “to be deemed ‘similarly-situated,’ the individuals with whom the plaintiff seeks to compare his/her treatment must have dealt with the same supervisor, have been subject to the same standards and have engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer’s treatment of them for it.” [FOOTNOTE 4] While the comparability standard espoused in Mitchellwas not new, [FOOTNOTE 5] Mitchellperhaps was the case that best defined the standard in the most explicit terms. The Mitchelldecision has accounted for over 500 citations by other courts as well as a number of secondary sources including a number of Law Reviews. While the bulk of the case citations has come from the Sixth Circuit, a number of other circuits have likewise cited to Mitchelland adopted its standards. Many defense attorneys throughout the country have relied on Mitchell, particularly in the absence of unequivocal adoption of Mitchell‘s standards by their own circuits. For whatever reason, Mitchellhas attracted renewed attention in recent years, as many circuits have now only recently adopted its standards. [FOOTNOTE 6]For instance, the Seventh Circuit, perhaps one of the more conservative circuits in the country, surprisingly waited until this past year to specifically adopt the strict comparability standard of Mitchell. [FOOTNOTE 7] THE “SAME SUPERVISOR” REQUIREMENT OF MITCHELL Extracting one element of the Mitchell analysis, courts generally require, as a threshold matter, that the alleged “comparator” and the plaintiff dealt with the same supervisor. [FOOTNOTE 8]The reason for this is quite simple and must be viewed in the context of what must be proved under the McDonnell-Douglasconstruct. In any individual disparate treatment case, absent “pattern and practice” allegations and the statistical proofs required in those cases, [FOOTNOTE 9]establishing discriminatory animus by the specific decision-maker in question is the key. Therefore, a reasonable inference of discrimination can be drawn only where a supervisor treated the plaintiff less favorably than the same supervisor treated another employee who was not within plaintiff’s protected class. In Radue v. Kimberly-Clark Corp., [FOOTNOTE 10]the Seventh Circuit perhaps best explained the rationale for this threshold requirement as follows: “Different employment decisions, concerning different employees, made by different supervisors, are seldom sufficiently comparable to establish a prima facie case of discrimination for the simple reason that different supervisors may exercise their discretion differently.” [FOOTNOTE 11]The court reasoned further, “these distinctions sufficiently account for any disparity in treatment, thereby preventing an inference of discrimination.” [FOOTNOTE 12] Under the comparability analysis, the “same supervisor” requirement would appear to be a very simple and straightforward concept. However, even this component may not be so easily defined in such instances where: 1) a disciplinary decision is approved by higher levels of management, 2) a personnel representative provides an oversight function for decisions by different managers, and 3) the affected employee files an internal grievance regarding the discipline thereby drawing other managers into the process of reviewing the decision. In short, when additional company officials become involved in the decision-making process, or in reviewing the appropriateness of the decision after-the-fact, the potential pool of alleged comparables may be subject to expansion, at least theoretically. COMPARABILITY OF OFFENSES Suffice it to say that the courts have struggled most in determining the comparability of the offenses involved, for that is where the most “gray area” exists. While nearly every circuit in the country has adopted Mitchell‘s general standard of comparability, namely, that the comparators must be similarly situated in “all relevant respects,” courts have applied this standard somewhat differently on a case-by-case basis. Some courts appear to require that the alleged offenses of the comparators be nearly identical to that of the plaintiff, [FOOTNOTE 13]while other courts have stressed that identicalness of offenses is not required and that all relevant facts and circumstances must be analyzed. [FOOTNOTE 14]Even the Sixth Circuit appears to have softened its position in Mitchell. In Ercegovich v. Goodyear Tire & Rubber Co., [FOOTNOTE 15]the Sixth Circuit rejected the district court’s narrow view of Mitchell, holding that Mitchelldoes not require comparables to be similarly situated in every aspect of their employment, just in “relevant aspects.” [FOOTNOTE 16] The Eighth Circuit, in Lynn v. Deaconess Medical Center-West Campus, [FOOTNOTE 17]took a much more expansive approach to the comparability issue. The plaintiff in Lynn had an extensive history of performance deficiencies, and was eventually discharged as a result of two alleged incidents: 1) failing to assist a family member in attaching certain therapeutic equipment to her mother, and 2) failing to correctly prepare essential documents for a Patient Conference Team Meeting. The comparator in Lynn, on the other hand, had been found sleeping on the job on several occasions and was written up for doing so but not terminated. The Eighth Circuit held that sleeping on the job was at least as serious or more serious than the misconduct perpetrated by the plaintiff, and thus the alleged comparator provided a proper basis for comparison. [FOOTNOTE 18]The Eighth Circuit’s analysis in Lynnmay have been faulty, however, because the court appeared to have injected its own subjective view about the relative seriousness of sleeping on the job, as compared to the offenses for which the plaintiff was terminated when viewed in the context of the plaintiff’s extensive history of performance deficiencies. This analysis appears to fly directly in the face of the long-standing principle that a court may not substitute its own business judgment for that of the employer in determining whether the employer took the appropriate action in any given circumstance. [FOOTNOTE 19] CONCLUSIONS Although the federal circuits have developed somewhat different approaches to determining comparability, particularly in the context of comparing the offenses, the courts have all generally adopted Mitchell v. Toledo Hospital, which means, as a starting point, that the plaintiff and alleged comparators must have dealt with the same supervisor. Employers, however, must still strive for consistency across management ranks in applying disciplinary guidelines, otherwise they run the risk of: 1) being accused of condoning discriminatory conduct, and 2) exposure to “pattern and practice” or class action lawsuits. It is ironic though that the same safeguards which an employer may implement to ensure consistency (i.e. adoption of company-wide work rules, personnel and/or higher management oversight of disciplinary decisions), may be seized upon by a plaintiff as an opportunity to circumvent the “same supervisor” requirement of Mitchell. Striving for company-wide consistency, however, must remain the paramount goal of any organization. This article is excerpted with permission from CCH’s Journal of Employment Discrimination Law, Winter 2001 Edition. Martin K. LaPointe, a shareholder in the Chicago law firm of Burke, Warren, MacKay & Serritella, PC, heads Burke’s Labor and Employment Practice Group. He has represented employers nationwide in employment litigation at the trial court level, as well as on appeal in the various U.S. Courts of Appeals. LaPointe is a former law clerk for the Honorable Charles R. Norgle, Sr. of the U.S. District Court for the Northern District of Illinois. He received his law degree from IIT Chicago-Kent College of Law. ::::FOOTNOTES:::: FN1 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). FN2964 F.2d 577 (6th Cir. 1992). FN3 Id. at 583 (emphasis in original). FN4 Id. FN5 See Stotts v. Memphis Fire Dept., 858 F.2d 289 (6th Cir. 1988); Mazzella v. RCA Global Communications, Inc., 642 F. Supp. 1531 (S.D.N.Y. 1986), aff’d, 814 F.2d 653 (2d Cir. 1987); Lanear v. Safeway Grocery, 843 F.2d 298 (8th Cir. 1988) (plaintiff must prove that he and the white employee were similarly situated in all respects and that the other employee’s acts were of comparable seriousness to his own); Cox v. Electronic Data Systems Corp., 751 F. Supp. 680 (E.D.Mich. 1990). FN6 See e.g., Radue v. Kimberly-Clark Corp., 219 F.3d 612 (7th Cir. 2000); Shumway v. United Parcel Service, Inc., 118 F.3d 60 (2d Cir. 1997). FN7 Radue v. Kimberly-Clark Corp., 219 F.3d 612 (7th Cir. 2000). FN8 See e.g., Aramburu v. The Boeing Co., 112 F.3d 1398, 1404 (10th Cir. 1997) (“similarly situated employees are those who deal with the same supervisor ….”); Hollins v. Atlantic Co., Inc., 188 F.3d 652, 659-60 (6th Cir. 1999) (court applied the holding in Mitchelland found that there was evidence of employees who had dealt with the same supervisor who were treated better); Shumway v. United Parcel Service, Inc., 118 F.3d 60, 64 (2d Cir. 1997) (court in applying the Mitchellstandard, found that none of the alleged comparables were supervised by the same managers). FN9 See e.g., Bush v. Commonwealth Co., 990 F.2d 928, 931-32 (7th Cir. 1993). FN10219 F.3d 612 (7th Cir. 2000). FN11 Id. at 618. FN12 Id. FN13 See e.g. Hollins v. Atlantic Co., Inc., 188 F.3d 652, 659-60 (6th Cir. 1999) (court found that evidence of comparability existed since the same supervisor and same conduct were present); Neuren v. Adduci, Mastriani, Meeks & Schill, 43 F.3d 1507, 1514 (D.C. Cir. 1995) (plaintiff must show that all of the relevant aspects of her employment are “nearly identical” to those of the alleged comparable); Byrd v. Ronayne, 61 F.3d 1026, 1032 (1st Cir. 1995) (court found that there was no evidence that the alleged comparable had the same performance deficiencies as the plaintiff); Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 802 (6th Cir. 1994) (plaintiff must show that all relevant aspects of his employment are “nearly identical” to those of the alleged comparable employee). FN14 Graham v. Long Island Railroad, 230 F.3d 34, 39-40 (2d Cir. 2000) (alleged comparable employee’s conduct need not be identical to that of another for the two individuals to be similarly situated); Conward v. Cambridge School Committee, 171 F.3d 12, 19-20 (1st Cir. 1999) (“reasonableness is the touchstone: while the plaintiff’s case and the comparison cases that he advances need not be perfect replicas, they must closely resemble one another in respect to relevant facts and circumstances.”) FN15154 F.3d 344 (6th Cir. 1998). FN16 Id. at 352-53. FN17160 F.3d 484 (8th Cir. 1998). FN18 Id. at 488; see also Aramburu v. The Boeing Co., 112 F.3d 1398, 1404 (10th Cir. 1997) (plaintiff must show that he was treated differently than other similarly situated employees who violated work rules of comparable seriousness). FN19 See e.g., Mechnig v. Sears, Roebuck & Co., 864 F.2d 1359, 1365 (7th Cir. 1988); Meiri v. Dacon, 759 F.2d 989, 995 (2d Cir. 1985). � 2001, CCH INCORPORATED. All Rights Reserved.

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