Judges Kevin Newsom (left) Robin Rosenbaum, U.S. Court of Appeals for the Eleventh Circuit (Photos: John Disney/ALM) Judges Kevin Newsom (left) and Robin Rosenbaum, U.S. Court of Appeals for the Eleventh Circuit (Photos: John Disney/ALM)

A split Eleventh Circuit on Thursday eased the standard it uses to determine whether workers are “similarly situated” when plaintiffs must make a prima facie case that they were subjected to discriminatory treatment.

But any gain realized by plaintiffs may be mitigated by the appeals court’s decision on timing of trial court’s approach to the issue.

And observers say the case, Lewis v. City of Union City, might be a vehicle for the U.S. Supreme Court to clear up litigation of workplace bias claims.

The U.S. Court of Appeals for the Eleventh Circuit, rehearing the case, retreated from its former standard, which said that employees, to be “similarly-situated,” had to present “nearly identical” facts. The majority stepped away from that high bar, ruling that employees who say they’ve faced discrimination can point to differing treatment accorded fellow workers under “same or similar” conditions.

But the panel on a 9-3 vote said courts had to do that analysis early in the litigation. In a 100-page opinion, the majority said similarity “in all material respects” must be determined early in the litigation to survive summary judgment.

The majority decision, written by Judge Kevin Newsom, concluded that under either standard, the trial judge was correct to dismiss claims by former Union City, Georgia, police officer Jacqueline Lewis, who is black, that she was a victim of racial, gender and disability discrimination when she was fired in 2010 shortly after refusing to undergo a Taser shock or be pepper-sprayed.

A factual key to Lewis’ case was evidence that two white, male detectives had been given substantial time off to deal with health issues.

Concurring in Newsom’s opinion were Chief Judge Ed Carnes and Judges Gerald Tjoflat, Stanley Marcus, Charles Wilson, William Pryor, Adalberto Jordan, Elizabeth Branch and Britt Grant.

While Circuit Judge Robin Rosenbaum welcomed  the court’s decision to walk away from the “nearly-identical” standard, she said in a forceful dissent that the majority’s position on timing outweighed its impact, tilting the playing field radically in favor of employers.

The majority opinion “drops an anvil on the employer’s side of the balance” in such cases, wrote Rosenbaum, who was joined in the dissent by Judges Beverly Martin and Jill Pryor.

In a footnote, Newsom disputed the dissenting judges’ “colorful characterization” of the majority opinion, “particularly given that we are rejecting as too strict the ‘nearly identical’ standard that has pervaded our case law for decades.”

The trial judge in the case, Judge Richard Story dismissed Lewis’ case, but in 2017 a three-judge panel of the Eleventh Circuit, divided 2-1, overruled him and revived the case. Rosenbaum and Senior Judge Lewis Kaplan of the U.S. District Court for the Southern District of New York, sitting by designation, said Lewis’ case should have been allowed to proceed, while Tjoflat dissented.

One key question in presenting a prima facie case of discrimination, Newsom wrote, is just how “similarly situated” a plaintiff and her comparators must be.

“To date, our attempts to answer that question have only sown confusion,” he said. “In some cases, we have required a proper comparator to be ‘nearly identical’ to the plaintiff.”

“In others, we have expressly rejected a nearly identical standard,” he said, while “[i]n still others, without even mentioning the nearly-identical benchmark, we have deemed it sufficient that the plaintiff and the comparator engaged in the ‘same or similar’ conduct.”

“And to make matters worse, in still others we have applied both the nearly-identical and same-or-similar standards simultaneously,” wrote Newsom, citing decision to illustrate each point.

“It’s a mess,” he said.

Some circuits have adopted a looser standard, he said, such as the one the U.S. Court of Appeals for the Seventh Circuit has adopted, which says that, as long as the distinctions between the plaintiff and comparators are not “so significant that they render the comparison effectively useless,” the similarly-situated requirement is met.

But that standard, he said, is so loose as to itself be almost useless in winnowing out improper  claims.

In an effort to find the “sweet spot” between the two, “we now hold that the proper test for evaluating comparator evidence is neither plain-old ‘same or similar’ nor ‘nearly identical,’ as our past cases have discordantly suggested,” the opinion said.

“Nor is it the Seventh Circuit’s so-long-as-the-comparison-isn’t-useless test. Rather, we conclude that a plaintiff asserting an intentional-discrimination claim under McDonnell Douglas must demonstrate that she and her proffered comparators were ‘similarly situated in all material respects.’”

Timing Is Everything?

The second issue before the court is when in the course of litigation that analysis should occur.

“[S]hould the ‘similarly situated’— i.e., comparator—analysis be conducted at the prima facie stage of the McDonnell Douglas framework, as we (and the Supreme Court) have traditionally held, or should it instead be reserved for the pretext stage?” Newsom wrote.  

“The Supreme Court has located the comparator analysis in McDonnell Douglas’ preliminary stage for good reason,” he said. “Lest we forget, the plaintiff’s burden at step one is to show a prima facie case of something in particular—namely, unlawful intentional ‘discrimination.’”

“It follows, therefore, that at the prima facie stage the plaintiff must show a potential ‘winner’— i.e., enough to give rise to a valid inference that her employer engaged in unlawful intentional “discrimination,” he wrote.

In the dissent, Rosenbaum said that, although the majority opinion “correctly defines ‘similarly situated’ within the McDonnell Douglas framework as ‘similarly situated in all material respects,’ it one-sidedly implements and interprets this standard to the employer’s redounding benefit. As a result, plaintiffs proceeding by circumstantial evidence in this circuit will have a difficult time budging the now-off-kilter balance and surviving summary judgment.”

“First, faced with how and where to implement the ‘similarly situated’ standard, the majority Opinion rigorously applies the standard entirely at the prima facie stage of the McDonnell Douglas analysis. Yet that construction of the prima facie case rebukes its parent: McDonnell Douglas and its progeny explicitly and implicitly require a generalized application of the ‘similarly situated’ standard at the initial, prima facie juncture and a more particularized one at the pretext phase of the framework—after the employer has satisfied its burden of coming forward with its nondiscriminatory reason for adverse action,” the dissent said.

“[B]y locating a rigorous ‘similarly situated’ requirement at the prima facie stage of the McDonnell Douglas framework, the majority opinion shrinks the number of potentially discriminated-against plaintiffs who will have an opportunity to see trial—or even to challenge their employers’ proffered reasons for taking action against them,” Rosenbaum wrote.

Lewis was represented by Cheryl Legare of Legare Attwood & Wolfe and Brian Sutherland of Buckley Beal.

Legare said they were “happy that the Court of Appeals has rejected the nearly identical standard and are hopeful that this will inure to the benefit of employees in the Eleventh Circuit.

“As to the rest of the opinion,” she said, “it raises interesting questions and we are still reviewing the opinion to determine what comes next.”

Elarbee Thompson partners Tracy Glanton and Sharon Morgan represented Union City. 

Glanton said they, too, were pleased with the ruling, “which leaves intact an employer’s discretion to make appropriate business judgments with respect to differently situated employees.

“The ‘similarly situated in all material respects’ standard permits consideration of those factors that a reasonable employer would rely upon to distinguish one employment decision from another,” said Glanton, and “permits only those cases where there is real evidence of unlawful, intentional discrimination to proceed—i.e., those cases where there is no evidence of differentiating or mitigating circumstances that would distinguish an employer’s treatment of one employee from another.”

Employment lawyer Amanda Farahany of Atlanta’s Barrett & Farahany had a different take on the ruling.

“The Eleventh Circuit has taken a confusing standard and made it convoluted, and increased the burden on plaintiffs,” said Farahany, who is not involved in the case. “The only thing that is clear is that the courts continue to deny plaintiffs the right to a jury trial by putting themselves in the role of a jury and having judges weighing the facts.”

The creation of a different standard from other circuits “makes this case ripe for the Supreme Court,” said Farahany. “As Justice [William] Brennan lamented in [a dissent to] Celotex Corp. v. Catrett [1986], a  procedure that was intended to create a summary procedure has now turned into a full-blown paper trial on the merits. It is time for Congress to amend the law and return these cases to juries.”

An opposing view comes from employment defense lawyer David Miller in Miami’s Bryant Miller Olive.

“The dissent asserts that the ‘material respects’ standard and how it interprets the majority’s application of it will eliminate more suits at summary judgment,” said Miller. “Even assuming that is true, the Eleventh Circuit’s decisions in the last three years have reduced the number of cases to which this analysis will be applied—which may well have the opposite effect.”

“Additionally,” said Miller, “the court’s opinion starts off by calling its precedents on this point a ‘mess.’ Some of those precedents applied a rather relaxed standard, but some required ‘nearly identical’ comparators. If applied literally, that is a very high bar, indeed, and the court rejected it. To the extent that summary judgments were being granted on a literal ‘nearly identical’ standard, now more, not fewer, cases will survive.”

Miller said the “material respects standard is grounded in common sense. What else are you going to consider when deciding whether two employees are similar—the ‘immaterial’ respects?”

“If common sense says that your claim isn’t going to survive summary judgment, then maybe that claim won’t be brought in the first place—and that would reduce the number of cases,” he said.