Jacqueline Lewis v. City of Union City, Georgia , 918 F.3d 1213 ( 2019 )

Case: 15-11362 Date Filed: 03/21/2019 Page: 1 of 100
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-11362
________________________
D.C. Docket No. 1:12-cv-04038-RWS
JACQUELINE LEWIS,
Plaintiff-Appellant,
versus
CITY OF UNION CITY, GEORGIA,
CHIEF OF POLICE CHARLES ODOM,
in his official and individual capacities,
Defendant -Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(March 21, 2019)
ON PETITION FOR REHEARING
Before ED CARNES, Chief Judge, TJOFLAT, MARCUS, WILSON, WILLIAM
PRYOR, MARTIN, JORDAN, ROSENBAUM, JILL PRYOR, NEWSOM,
BRANCH, and GRANT, Circuit Judges.
NEWSOM, Circuit Judge, delivered the opinion of the Court, in which ED
CARNES, Chief Judge, TJOFLAT, MARCUS, WILSON, WILLIAM PRYOR,
JORDAN, BRANCH, and GRANT, Circuit Judges, joined.
Case: 15-11362 Date Filed: 03/21/2019 Page: 2 of 100
ROSENBAUM, Circuit Judge, filed an opinion concurring in part and dissenting in
part, in which MARTIN and JILL PRYOR, Circuit Judges, joined.
NEWSOM, Circuit Judge:
Faced with a defendant’s motion for summary judgment, a plaintiff asserting
an intentional-discrimination claim under Title VII of the Civil Rights Act of 1964,
the Equal Protection Clause, or 42 U.S.C. § 1981 must make a sufficient factual
showing to permit a reasonable jury to rule in her favor. She can do so in a variety
of ways, one of which is by navigating the now-familiar three-part burden-shifting
framework established by the Supreme Court in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). Under that framework, the plaintiff bears the initial
burden of establishing a prima facie case of discrimination by proving, among
other things, that she was treated differently from another “similarly situated”
individual―in court-speak, a “comparator.” Texas Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 258–59 (1981) (citing McDonnell Douglas, 411 U.S. at
804). The obvious question: Just how “similarly situated” must a plaintiff and her
comparator(s) be?
To date, our attempts to answer that question have only sown confusion. In
some cases, we have required a proper comparator to be “nearly identical” to the
plaintiff. See, e.g., Nix v. WLCY Radio/Rahall Commc’ns, 738 F.2d 1181, 1185
(11th Cir. 1984) (citations omitted). In others, we have expressly rejected a
nearly-identical standard. See, e.g., Alexander v. Fulton Cty., 207 F.3d 1303,
2
Case: 15-11362 Date Filed: 03/21/2019 Page: 3 of 100
1333–34 (11th Cir. 2000). In 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. See, e.g., Holifield v. Reno,
115 F.3d 1555, 1562 (11th Cir. 1997) (per curiam). And to make matters worse, in
still others we have applied both the nearly-identical and same-or-similar standards
simultaneously. See, e.g., Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir.
1999). It’s a mess.
In an effort to clean up, and to clarify once and for all the proper standard for
comparator evidence in intentional-discrimination cases, we took this case en banc
and instructed the parties to address the following issue:
The Supreme Court has held that in order to make out a prima facie
case of discrimination under Title VII of the Civil Rights Act of 1964,
the Equal Protection Clause of the Fourteenth Amendment, or 42
U.S.C. § 1981, a plaintiff must prove, among other things, that she
was treated differently from another “similarly situated” individual.
What standard does the phrase “similarly situated” impose on the
plaintiff: (1) “same or similar,” (2) “nearly identical,” or (3) some
other standard?
Our plaintiff-appellant’s position is twofold. First, as a procedural matter,
she urges us to “move” any qualitative analysis of comparator evidence out of the
initial prima facie stage of the McDonnell Douglas analysis, where it historically
has resided, and into the third-tier pretext stage. Second, as a substantive matter,
she contends that we should jettison both the same-or-similar and nearly-identical
tests in favor of what she calls a “flexible, common-sense” standard, which the
3
Case: 15-11362 Date Filed: 03/21/2019 Page: 4 of 100
Seventh Circuit seems to have embraced: “So long as the distinctions between the
plaintiff and the proposed comparators are not ‘so significant that they render the
comparison effectively useless,’ the similarly-situated requirement is satisfied.”
Appellant’s En Banc Br. at 34 (quoting Coleman v. Donahoe, 667 F.3d 835, 846
(7th Cir. 2012)).
Not surprisingly, the defendants-appellees see things differently. First, they
insist that the comparator evaluation should remain part of the prima facie stage of
the McDonnell Douglas analysis. Second, they urge us to keep the nearly-identical
standard, which, they say, reflects the dominant rule in our case law and most
accurately captures what the Supreme Court’s understanding of the phrase
“similarly situated.”
For the reasons that follow, we hold, as an initial matter, that a meaningful
comparator analysis must be conducted at the prima facie stage of McDonnell
Douglas’s burden-shifting framework, and should not be “move[d]” to the pretext
stage. With respect to the standard itself, we 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. 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
4
Case: 15-11362 Date Filed: 03/21/2019 Page: 5 of 100
must demonstrate that she and her proffered comparators were “similarly situated
in all material respects.”
I
A
Jacqueline Lewis, an African-American woman, started working for the
Union City Police Department as a patrol officer in 2001 and was promoted to
detective in 2008. She suffered a heart attack the following year but was cleared
to return to work without any restrictions.
In 2010, then-Police Chief Charles Odom announced a new policy requiring
all officers to carry Tasers. As part of the training associated with the new policy,
officers had to receive a five-second Taser shock. 1 After hearing about the Taser
policy and being scheduled for separate pepper-spray training, Lewis became
concerned that she might be at an increased risk of injury because of her earlier
heart attack. Lewis’s doctor agreed and, due to what she described as “several
chronic conditions including a heart condition,” she informed Chief Odom that she
“would not recommend” that either a Taser or pepper spray be used either “on or
near” Lewis.
1
Chief Odom required the Taser shock so that officers could, e.g., evaluate the appropriate
circumstances under which to use the Taser, testify in court about the effects of the shock, and
develop confidence that the shock is survivable.
5
Case: 15-11362 Date Filed: 03/21/2019 Page: 6 of 100
Because as a detective Lewis would inevitably be (at the very least) “near”
pepper spray—and under the new policy, Tasers, as well—Chief Odom concluded
that the restrictions described by Lewis’s doctor prevented her from performing the
essential duties of her job. Accordingly, Lewis was placed on unpaid
administrative leave “until such time [as her doctor] release[d] [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. After a few weeks, Lewis had exhausted all of her
accrued leave but still hadn’t completed the necessary FMLA paperwork. As a
result, her absence was deemed “unapproved” and she was terminated pursuant to
the Union City Personnel Policy, which stated that “[a]ny unapproved leave of
absence [is] cause for dismissal.”
B
Lewis brought this action against Union City and Chief Odom (together,
“the City”), alleging, as relevant here, race and gender discrimination in violation
of Title VII, the Equal Protection Clause, and 42 U.S.C. § 1981. 2 The City moved
for summary judgment, and Lewis filed a response in which she identified as
comparators two other Union City police officers whom she claimed had been
2
Lewis also brought claims under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.
Those claims are not before the en banc court.
6
Case: 15-11362 Date Filed: 03/21/2019 Page: 7 of 100
treated more favorably. The first was Sergeant Cliff McClure, a white man who
failed the “balance” portion of a physical-fitness test in 2014 (nearly four years
after the events culminating in Lewis’s termination) and was given 90 days of
unpaid administrative leave to remedy the conditions that caused him to fail.
McClure retook (and passed) the test within the 90-day period and returned to
work. The second was Officer Walker Heard, a white man who failed an “agility”
test in 2013 (almost three years after Lewis’s firing) and was also placed on unpaid
administrative leave for 90 days. Heard was offered (and ultimately declined) a
position as a dispatcher. The offer, however, remained open for approximately 11
months while Heard’s attorney negotiated with the City regarding allegations that
he suffered from a disability. In the end, Heard was terminated after 449 days on
unpaid administrative leave because he was unable to demonstrate his fitness to be
a patrol officer. 3
The district court granted summary judgment to the City, concluding as to
the race- and gender-discrimination claims that Lewis’s “proffered comparators
d[id] not qualify under either [the ‘nearly identical’ or the ‘same or similar’]
standard.”
3
Lewis also proffered a third comparator in her response―Officer Francisco Cedeno, a Latino
man who initially communicated his doctor’s concerns that he not be exposed to a Taser shock
while he was recovering from heart surgery but eventually agreed to be shocked in the leg.
Lewis has since abandoned any contention that Cedeno is a valid comparator. See Br. of
Appellant at 22 n.8.
7
Case: 15-11362 Date Filed: 03/21/2019 Page: 8 of 100
Over Judge Tjoflat’s dissent, a panel of this Court reversed, holding in
relevant part that Lewis had presented enough evidence to create a genuine issue of
material fact as to her race- and gender-discrimination claims. Lewis v. City of
Union City, 877 F.3d 1000, 1004 (11th Cir. 2017), reh’g en banc granted, opinion
vacated, Lewis v. City of Union City, 893 F.3d 1352 (11th Cir. 2018). In
particular, the panel determined that McClure and Heard were valid comparators
for purposes of assessing Lewis’s prima facie case. 877 F.3d at 1015–18. In the
course of so holding, the panel acknowledged that “[t]his Circuit often has applied
or referred to a ‘nearly identical’ standard to determine whether proposed
comparators are similarly situated,” but it rejected that test, which, it reasoned,
applies only in workplace-misconduct cases. Id. at 1017 n.11.
We vacated the panel’s opinion and took this case en banc to clarify the
proper standard for comparator evidence in intentional-discrimination cases.4
II
This case arises principally under Title VII of the Civil Rights Act of 1964,
which makes it unlawful for an employer “to fail or refuse to hire or to discharge
any individual, or otherwise to discriminate against any individual with respect to
4
We review a district court’s grant of summary judgment de novo. Jones v. Dillard’s, Inc., 331
F.3d 1259, 1262 (11th Cir. 2003). Summary judgment is appropriate only when no genuine
issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).
8
Case: 15-11362 Date Filed: 03/21/2019 Page: 9 of 100
his compensation, terms, conditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e–
2(a)(1). “The language of Title VII makes plain the purpose of Congress to assure
equality of employment opportunities and to eliminate those discriminatory
practices and devices” that have been used to disadvantage racial, gender, and
religious minorities in the workplace. McDonnell Douglas Corp. v. Green, 411
U.S. 792, 800 (1973). 5
In order to survive summary judgment, a plaintiff alleging intentional
discrimination must present sufficient facts to permit a jury to rule in her favor.
One way that she can do so is by satisfying the burden-shifting framework set out
in McDonnell Douglas.6 When proceeding under McDonnell Douglas, the
plaintiff bears the initial burden of establishing a prima facie case of discrimination
by showing (1) that she belongs to a protected class, (2) that she was subjected to
5
As already noted, Lewis also presented race- and gender-related claims under the Equal
Protection Clause and 42 U.S.C. § 1981. The same analysis—and in particular, the McDonnell
Douglas burden-shifting framework—applies to those claims, as well. See Standard v. A.B.E.L.
Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998) (“Standard alleges that he was terminated on
the basis of his race and national origin (Caucasian–American), in violation of Title VII and 42
U.S.C. § 1981. Both of these statutes have the same requirements of proof and use the same
analytical framework, therefore we shall explicitly address the Title VII claim with the
understanding that the analysis applies to the § 1981 claim as well.”).
6
A plaintiff can also present direct evidence of discriminatory intent, see, e.g., Jefferson v.
Sewon America, Inc., 891 F.3d 911, 921–22 (11th Cir. 2018), or demonstrate a “convincing
mosaic” of circumstantial evidence that warrants an inference of intentional discrimination, see,
e.g., Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011) (citation and
quotation marks omitted).
9
Case: 15-11362 Date Filed: 03/21/2019 Page: 10 of 100
an adverse employment action, (3) that she was qualified to perform the job in
question, and (4) that her employer treated “similarly situated” employees outside
her class more favorably. See, e.g., Holifield v. Reno, 115 F.3d 1555, 1561–62
(11th Cir. 1997) (citing McDonnell Douglas, 411 U.S. at 802). If the plaintiff
succeeds in making out a prima facie case, the burden shifts to the defendant to
articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of
Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Finally, should the defendant
carry its burden, the plaintiff must then demonstrate that the defendant’s proffered
reason was merely a pretext for unlawful discrimination, an obligation that
“merges with the [plaintiff’s] ultimate burden of persuading the [factfinder] that
she has been the victim of intentional discrimination.” Id. at 256.
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. That question, in turn—and in the light of the parties’
contentions—comprises two subsidiary questions. First, should 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? Second, and in either
event, what is the proper standard for determining whether a plaintiff and her
10
Case: 15-11362 Date Filed: 03/21/2019 Page: 11 of 100
comparators are “similarly situated”? We turn to a consideration of those
questions.7
A
All here seem to agree that the qualitative assessment of comparator
evidence has historically occurred in—and been an integral part of—the plaintiff’s
prima facie case. In her brief, for instance, Lewis recites the black-letter principle
that in order to make out a prima facie case in a wrongful-termination action like
this, “a plaintiff must show that she: (1) is a member of a protected class; (2) was
qualified for the position from which she was terminated; (3) was terminated; and
(4) was treated less favorably than similarly situated employees outside her
protected class.” Appellant’s En Banc Br. at 21 (citing, e.g., St. Mary’s Honor
Ctr. v Hicks, 509 U.S. 502, 506 (1993)) (emphasis added). Even so, Lewis now
asks us to “move” the similarly-situated comparison out of the initial prima facie
stage of the McDonnell Douglas analysis and into the tertiary pretext stage. Id. at
15, 30. For the reasons that follow, we decline to do so.
For starters, the Supreme Court has repeatedly (and consistently) included a
comparator-evidence assessment—using one formulation or another—as an
element of a plaintiff’s prima facie case. Beginning in McDonnell Douglas itself,
7
McDonnell Douglas’s burden-shifting framework applies to claims arising under a host of
federal antidiscrimination laws. Our analysis and conclusions regarding the “similarly situated”
issue here apply to cases brought under those statutes, as well.
11
Case: 15-11362 Date Filed: 03/21/2019 Page: 12 of 100
the Court emphasized that a Title VII plaintiff—there bringing a failure-to-hire
claim—carries his prima facie burden “by showing (i) that he belongs to a racial
minority; (ii) that he applied and was qualified for a job for which the employer
was seeking applicants; (iii) that, despite his qualifications, he was rejected;
and”—importantly here—“(iv) that, after his rejection, the position remained open
and the employer continued to seek applicants from persons of complainant’s
qualifications.” 411 U.S. at 802. The Court reiterated a similar four-part prima
facie test in Furnco Construction Corp. v. Waters, 438 U.S. 567, 575 (1978), and
again in St. Mary’s Honor Center v. Hicks, 509 U.S. at 506. Most recently, in
Young v. United Parcel Service, Inc., the Court applied the McDonnell Douglas
framework to a failure-to-accommodate claim arising under the Pregnancy
Discrimination Act, and in so doing restated yet again the required four-step test:
“[A] plaintiff . . . may make out a prima facie case by showing, as in McDonnell
Douglas, [1] that she belongs to the protected class, [2] that she sought
accommodation, [3] that the employer did not accommodate her, and [4] that the
employer did accommodate others ‘similar in their ability or inability to work.’”
135 S. Ct. 1338, 1354 (2015) (enumeration added).
The Supreme Court has located the comparator analysis in McDonnell
Douglas’s preliminary stage for good reason. Lest we forget, the plaintiff’s burden
at step one is to show a prima facie case of something in particular—namely,
12
Case: 15-11362 Date Filed: 03/21/2019 Page: 13 of 100
unlawful intentional “discrimination.” See, e.g., McDonnell Douglas, 411 U.S. at
802 (“The complainant in a Title VII trial must carry the initial burden under the
statute of establishing a prima facie case of racial discrimination.” (emphasis
added)); Burdine, 450 U.S. at 252–53 (“discrimination”); St. Mary’s, 509 U.S. at
506 (“discrimination”). “The prima facie case serves an important function,” the
Supreme Court has said, in that “it eliminates the most common nondiscriminatory
reasons” for the employer’s treatment of the plaintiff—and in so doing “give[s]
rise to an inference of unlawful discrimination.” Burdine, 450 U.S. at 253–54; see
also Furnco, 438 U.S. at 577 (same); Int’l Bhd. of Teamsters v. United States, 431
U.S. 324, 358 (1977) (same). A successful prima facie showing thus establishes a
“legally mandatory, rebuttable presumption” of intentional discrimination,
Burdine, 450 U.S. at 254 n.7, that “produces a required conclusion in the absence
of explanation” by the employer, St. Mary’s, 509 U.S. at 506 (quotation marks
omitted). In other words, establishing a prima facie case of discrimination entitles
the plaintiff to judgment—to victory—if the employer either can’t, won’t, or
doesn’t provide a nondiscriminatory explanation for its actions. See Burdine, 450
U.S. at 254 (“[I]f the employer is silent in the face of the presumption, the court
must enter judgment for the plaintiff because no issue of fact remains in the
case.”). It follows, therefore, that at the prima facie stage the plaintiff must show a
13
Case: 15-11362 Date Filed: 03/21/2019 Page: 14 of 100
potential “winner”—i.e., enough to give rise to a valid inference that her employer
engaged in unlawful intentional “discrimination.” 8
So what exactly is this “discrimination,” an inference of which is the object
of the plaintiff’s prima facie case? As we have said many times—and as all of us
know intuitively—“[d]iscrimination consists of treating like cases differently.”
N.L.R.B. v. Collier, 553 F.2d 425, 428 (5th Cir. 1977) (emphasis added); see also,
e.g., Frosty Morn Meats, Inc. v. N.L.R.B., 296 F.2d 617, 621 (5th Cir. 1961). The
converse, of course, is also true: Treating different cases differently is not
discriminatory, let alone intentionally so. See Nix v. WLCY Radio/Rahall
Commc’ns, 738 F.2d 1181, 1186 (11th Cir. 1984) (“[I]f an employer applies a rule
differently to people it believes are differently situated, no discriminatory intent has
been shown.”) (quoting Chescheir v. Liberty Mut. Ins. Co., 713 F.2d 1142, 1148
(5th Cir. 1983)) (emphasis added).
By its very nature, therefore, discrimination is a comparative concept—it
requires an assessment of whether “like” (or instead different) people or things are
being treated “differently.” In light of that reality—and because a sufficient prima
facie showing gives rise to an inference of unlawful discrimination—“mov[ing]”
8
To be clear, none of this is to say that a plaintiff’s prima facie and ultimate burdens are
equivalent—the Supreme Court has repeatedly emphasized that they aren’t. See, e.g., St. Mary’s,
509 U.S. at 515; Burdine, 450 U.S. at 255 n.8; see also infra at 27 n.15. The point is simply that,
in order to move forward, a plaintiff must at least offer evidence that creates a valid inference
that her employer’s conduct was in fact illegally discriminatory.
14
Case: 15-11362 Date Filed: 03/21/2019 Page: 15 of 100
the comparator analysis out of the initial prima facie stage and into the tertiary
pretext stage, as Lewis requests, would make no sense. Were we to do so, a
plaintiff could demonstrate a potential winner at step one by showing only (1) that
she belongs to a protected class, (2) that she suffered some adverse employment
action, and (3) that she was qualified to perform the job in question. But even
conclusive proof of those three elements can’t entitle a plaintiff to judgment on a
claim for unlawful discrimination. 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. Think about it: Every qualified minority employee who gets fired, for
instance, necessarily satisfies the first three prongs of the traditional prima facie
case. But that employee could have been terminated because she was chronically
late, because she had a foul mouth, or for any of a number of other
nondiscriminatory reasons. It is only by demonstrating that her employer has
treated “like” employees “differently”—i.e., through an assessment of
comparators—that a plaintiff can supply the missing link and provide a valid basis
for inferring unlawful discrimination.
You see the problem: Lewis’s proposal that the qualitative assessment of
comparator evidence be “move[d]” out of the prima facie stage and into the pretext
stage would allow the plaintiff to proceed—and potentially to win—without any
15
Case: 15-11362 Date Filed: 03/21/2019 Page: 16 of 100
good ground for presuming that discrimination has occurred. Doing so would
effectively shift to the defendant the burden of disproving discrimination—which
is precisely what the Supreme Court has forbidden. See, e.g., Burdine, 450 U.S. at
253, 254–58 (rejecting rules that placed too stringent a burden on a gender-
discrimination defendant and emphasizing that the “ultimate burden of persuading
the trier of fact that the defendant intentionally discriminated against the plaintiff
remains at all times with the plaintiff”).9
* * *
We have no trouble concluding, therefore, that a meaningful comparator
analysis must remain part of the prima facie case. In order to defeat summary
judgment, a Title VII plaintiff proceeding under McDonnell Douglas must prove,
as a preliminary matter, not only that she is a member of a protected class, that she
suffered an adverse employment action, and that she was qualified for the job in
9
We reject Lewis’s (and the dissent’s) suggestion that McDonnell Douglas itself somehow
indicates that the analysis of comparators should be relegated to the tertiary pretext stage. While
it’s true that the Court there considered at the pretext phase whether white employees had
engaged in conduct of “comparable seriousness” to the African-American plaintiff’s, that fact
alone says nothing about the propriety—or in light of subsequent Supreme Court precedent,
necessity—of conducting a comparative analysis as part of the prima facie stage. Evidence
necessary and proper to support a plaintiff’s prima facie case may of course be used, later as it
were, to demonstrate that the defendant’s explanation for its conduct was pretextual. See, e.g.,
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000) (observing that “although
the presumption of discrimination ‘drops out of the picture’ once the defendant meets its burden
of production, . . . the trier of fact may still consider the evidence establishing the plaintiff’s
prima facie case and ‘inferences properly drawn therefrom . . . on the issue of whether the
defendant’s explanation is pretextual’”) (quoting Burdine, 450 U.S. at 255 ).
16
Case: 15-11362 Date Filed: 03/21/2019 Page: 17 of 100
question, but also that she was treated less favorably than “similarly situated”
individuals outside her class.
B
Having resolved that a comparator analysis must be conducted at the prima
facie stage of the McDonnell Douglas framework—and not relegated to the pretext
phase—we must now decide exactly what sort of showing the phrase “similarly
situated” requires a plaintiff to make and, in so doing, begin to flesh out the
standard’s parameters.
As we’ve already confessed, we’ve made something of a hash of the
“similarly situated” issue, bouncing back and forth (and back and forth) between
two standards―“nearly identical” and “same or similar.” Compare, e.g., Nix, 738
F.2d at 1185 (“nearly identical”), with, e.g., Holifield, 115 F.3d at 1562 (“same or
similar”), and, e.g., Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999)
(both). We took this case en banc principally to determine whether we should
continue to apply one of those standards, or instead adopt some other test.
1
As an initial matter, no one seems to be advocating the same-or-similar
standard—presumably because it is simultaneously too strict and too lenient, and
thus incoherent. The terms “same” and “similar” denote different things. In
ordinary usage, “same” means precise, jot-for-jot correspondence—clearly too
17
Case: 15-11362 Date Filed: 03/21/2019 Page: 18 of 100
exacting. See Webster’s Second New International Dictionary 2209 (1944).
“Similar,” a much flabbier concept that includes among its definitions “somewhat
like,” id. at 2340, has its own problems—chief among them that it adds absolutely
nothing to the general “similarly situated” standard.
Lewis’s principal concern is that we reject the nearly-identical test, which
she finds too “rigid.” She urges us instead to adopt the Seventh Circuit’s “flexible,
common-sense” standard pursuant to which the “similarly situated” requirement is
satisfied “[s]o long as the distinctions between the plaintiff and the proposed
comparators are not ‘so significant that they render the comparison effectively
useless.’” Appellant’s En Banc Br. at 34 (quoting Coleman v. Donahoe, 667 F.3d
835, 846 (7th Cir. 2012)). The City, by contrast, wants us to keep the nearly-
identical standard, which, it says, reflects the dominant theme in our case law and
most accurately captures the Supreme Court’s understanding of the phrase
“similarly situated.”
We conclude that neither party’s proposal quite fits the bill. For reasons we
will explain, Lewis’s not-useless standard is too lax, and the City’s (and
occasionally our own) nearly-identical test is too strict. We hold, instead—without
trying to force an artificial gloss—that a plaintiff must show that she and her
comparators are “similarly situated in all material respects.” That standard, we
think, best and most fairly implements federal statutory prohibitions on
18
Case: 15-11362 Date Filed: 03/21/2019 Page: 19 of 100
“discrimination,” properly balances the need to protect employees from invidious
discrimination with the deference owed to employers’ rational business judgments,
and sensibly serves considerations of sound judicial administration by making
summary judgment available in appropriate (but by no means all) cases.
2
In assessing the parties’ positions—and adopting our own—we take as our
lodestars (1) the ordinary meaning of the term “discrimination” and (2) the twin
policies that the Supreme Court has said animate the McDonnell Douglas
framework’s prima facie case. First, “discrimination”: Discrimination, as we have
explained, is the act of “treating like cases differently.” E.g., Collier, 553 F.2d at
428 (emphasis added). Quintessential discrimination—the Platonic form, if you
will—therefore requires true “like[ness],” perfect apples-to-apples identity. As
Lewis and her amici correctly explain, however, in the real world (and real
workplaces) “doppelgangers are like unicorns”—they don’t exist. So practically
speaking, at least, perfect identity is a non-starter. But in adopting a comparator
standard, we must not stray too far from paradigmatic notions of discrimination,
lest we sanction a regime in which treating different things differently violates
Title VII, which clearly it does not. Second, and relatedly, we must be mindful of
the two functions that the Supreme Court has said the prima facie case is designed
to serve—(1) to eliminate “the most common nondiscriminatory reasons” for an
19
Case: 15-11362 Date Filed: 03/21/2019 Page: 20 of 100
employer’s conduct, and (2) to provide a sound basis for an “inference of unlawful
discrimination.” Burdine, 450 U.S. at 253–54; see also Furnco, 438 U.S. at 577;
Young, 135 S. Ct. at 1354.
It’s clear, we think, that Lewis’s proposed standard—which, again, deems
the similarly-situated standard satisfied “[s]o long as the distinctions between the
plaintiff and the proposed comparators are not ‘so significant that they render the
comparison effectively useless’”—fails these tests. In its looseness, Lewis’s
standard departs too dramatically from the essential sameness that is necessary to a
preliminary determination that the plaintiff’s employer has engaged in unlawful
“discrimination.” A plaintiff and a comparator might be alike in some (even
random) sense, such that a comparison wouldn’t necessarily be irrelevant or crazy.
But without closer correspondence, the comparison wouldn’t provide any sound
basis for eliminating legitimate reasons for an employer’s conduct or validly
inferring discriminatory animus.
Separately, Lewis’s not-useless standard risks giving courts too much
leeway to upset employers’ valid business judgments. In applying McDonnell
Douglas, the Supreme Court has stressed the importance of striking an appropriate
balance between employee protection and employer discretion. In McKennon v.
Nashville Banner Publishing Co., for instance, the Court observed that federal
antidiscrimination statutes do “not constrain employers from exercising significant
20
Case: 15-11362 Date Filed: 03/21/2019 Page: 21 of 100
other prerogatives and discretions in the course of the hiring, promoting, and
discharging of their employees,” and emphasized that courts deciding cases arising
under those laws “must recognize” not only “the important claims of the
employee[s]” but also “the legitimate interests of the employer.” 513 U.S. 352,
361 (1995). The reason for deference, the Court has explained, is that “[c]ourts are
generally less competent than employers to restructure business practices, and
unless mandated to do so by Congress they should not attempt it.” Furnco, 438
U.S. at 578. By permitting cases to proceed on the most meager showing of
similarity between a plaintiff and her comparators, Lewis’s not-useless standard
would thrust courts into staffing decisions that bear no meaningful indicia of
unlawful discrimination.
Finally, it seems to us inevitable that Lewis’s proposal would effectively
eliminate summary judgment as a tool for winnowing out meritless claims.
Indeed, forestalling summary judgment appears to be a feature of the not-useless
standard, not a bug. Lewis repeatedly touts her standard as not only “flexible” but
also inherently “factual.” E.g., Appellant’s En Banc Br. at 16, 34; Appellant’s En
Banc Reply Br. at 9. So long, she says, as there are “enough common features to
allow meaningful comparison, the question of equivalence should be left to a jury
to decide.” Appellant’s En Banc Br. at 16. Lewis’s amici likewise stress that
“[a]ny comparison will necessarily entail fact-finding and weighing of evidence,
21
Case: 15-11362 Date Filed: 03/21/2019 Page: 22 of 100
which, of course, is the job of the jury”—and therefore contend that it is “only in
cases of the most dissimilar proposed comparators, without any other indicia of
discriminatory intent, that summary judgment may be supported.” Br. of Amici for
Appellant at 16. That’s just too low a bar. Without prejudging, it seems to us
inconceivable, for instance, that nearly every one of the hundreds of Title VII cases
filed in this Circuit last year warranted a full trial.
While Lewis’s standard is clearly too lenient, the City’s is too strict—or at
least has the appearance of being too strict. Although we have employed it for
some time now―albeit inconsistently―the nearly-identical standard gives off the
wrong “vibe.” Despite the adverb “nearly”―and our repeated reassurances that
“comparators need not be the plaintiff’s doppelgangers,” Flowers v. Troup County,
Georgia, School District, 803 F.3d 1327, 1340 (11th Cir. 2015), and, even more
explicitly, that “‘[n]early identical’ . . . does not mean ‘exactly identical,’” McCann
v. Tillman, 526 F.3d 1370, 1374 n.4 (11th Cir. 2008)―there is a risk that litigants,
commentators, and (worst of all) courts have come to believe that it requires
something akin to doppelganger-like sameness. Although we must take care not to
venture too far from the form—“apples should be compared to apples”—we must
also remember that “[e]xact correlation is neither likely nor necessary.”
Dartmouth Review v. Dartmouth Coll., 889 F.2d 13, 19 (1st Cir. 1989), overruled
on other grounds by Educadores Puertorriqueños en Acción v. Hernandez, 367
22
Case: 15-11362 Date Filed: 03/21/2019 Page: 23 of 100
F.3d 61 (1st Cir. 2004). And we are not willing to take the risk that the nearly-
identical test is causing courts reflexively to dismiss potentially valid
antidiscrimination cases.10
3
So, we are left to try to find the sweet spot between Lewis’s squishy not-
useless standard and the City’s preferred nearly-identical standard. For reasons
explained below, we hold that a plaintiff proceeding under McDonnell Douglas
must show that she and her comparators are “similarly situated in all material
respects.”11
a
As an initial matter, what does it mean for a plaintiff and her comparators to
be “similarly situated in all material respects”? Fair question. Of course, precisely
what sort of similarity the in “all material respects” standard entails will have to be
10
Naturally, we must resist the dissent’s colorful characterization of our opinion as “drop[ping]
an anvil on the employer’s side of the balance,” and thereby “shrink[ing] the number of
potentially discriminated-against plaintiffs who will have an opportunity to see trial,” Dissenting
Op. at 33–35—particularly given that we are rejecting as too strict the “nearly identical”
standard that has pervaded our case law for decades.
11
To be clear, the “similarly situated in all material respects” standard that we embrace today
applies to all discrimination claims pursued under McDonnell Douglas. We reject the panel’s
suggestion that a different standard should apply in workplace-misconduct cases than in, say,
failure-to-hire cases. See Lewis, 877 F.3d at 1017 n.11.
23
Case: 15-11362 Date Filed: 03/21/2019 Page: 24 of 100
worked out on a case-by-case basis, in the context of individual circumstances.
But we are not without guideposts.12
We know, for instance, that the plaintiff and her comparators need not be
“similar in all but the protected ways.” Young, 135 S. Ct. at 1354. A plaintiff
needn’t prove, therefore, that she and her comparators are identical save for their
race or gender, as the case may be. Not even the nearly-identical standard requires
that level of exactitude. Nor is it necessary for a plaintiff to prove purely formal
similarities—e.g., that she and her comparators had precisely the same title. See
Lathem v. Dep’t of Children & Youth Servs., 172 F.3d 786, 793 (11th Cir. 1999)
(“The relevant inquiry is not whether the employees hold the same job titles, but
whether the employer subjected them to different employment policies.”) (citation
omitted). Nor will minor differences in job function disqualify a would-be
comparator. See, e.g., Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344,
353 (6th Cir. 1998) (concluding that minor “differences in . . . job activities” did
12
Happily—and helpfully—we aren’t really breaking new ground in adopting an “all material
respects” standard. We ourselves have used comparable phrasing in the past, although we’ve
often cluttered it up with a nearly-identical or same-or-similar gloss. See, e.g., Smith v.
Lockheed-Martin Corp., 644 F.3d 1321, 1326 n.17 (11th Cir. 2011); Holifield, 115 F.3d at 1562.
Several of our sister circuits have likewise adopted some version of this standard. See, e.g.,
Young v. Builders Steel Co., 754 F.3d 573, 578 (8th Cir. 2014); Moran v. Selig, 447 F.3d 748,
755 (9th Cir. 2006); Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir.
1998); Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 64 (2d Cir. 1997) (citation omitted);
Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992) .
24
Case: 15-11362 Date Filed: 03/21/2019 Page: 25 of 100
not “automatically” disqualify plaintiff’s proffered comparators, at least where
they held “related human resources positions”).
Having said that, we can also envision the sorts of similarities that will, in
the main, underlie a valid comparison. Ordinarily, for instance, a similarly situated
comparator—
• will have engaged in the same basic conduct (or misconduct) as the plaintiff,
see, e.g., Mitchell v. Toledo Hosp., 964 F.2d 577, 580, 583 (6th Cir. 1992)
(holding that a plaintiff terminated for “misuse of [an employer’s] property”
could not rely on comparators allegedly guilty of “absenteeism” and
“insubordination”)13;
• will have been subject to the same employment policy, guideline, or rule as
the plaintiff, see, e.g., Lathem, 172 F.3d at 793 (holding that a plaintiff’s
proffered comparators were valid where all were subject to the same
“workplace rules or policies”);
• will ordinarily (although not invariably) have been under the jurisdiction of
the same supervisor as the plaintiff, see, e.g., Jones v. Gerwens, 874 F.2d
1534, 1541 (11th Cir. 1989) (observing that “disciplinary measures
undertaken by different supervisors may not be comparable for purposes of
Title VII analysis”); and
• will share the plaintiff’s employment or disciplinary history, see, e.g.,
Tennial v. United Parcel Serv., Inc., 840 F.3d 292, 304 (6th Cir. 2016)
(explaining that “[d]ifferences in experience and disciplinary history” can
disqualify a plaintiff’s proffered comparators).
13
This principle has its limits, of course. As the City acknowledged in response to questioning
at oral argument, for instance, an African-American female who gets fired because she routinely
arrives to work an hour late could surely point, as a valid comparator, to a white male who
routinely shoves off an hour early—at least absent some good reason (say, a regularly scheduled
a.m. staff meeting) for concluding that morning absences are more detrimental to workplace
efficiency or morale than those in the afternoon. See Oral Arg. Tr. at 46:12 et seq.
25
Case: 15-11362 Date Filed: 03/21/2019 Page: 26 of 100
In short, as its label indicates―“all material respects”―a valid comparison will
turn not on formal labels, but rather on substantive likenesses. To borrow phrasing
from a recent Supreme Court decision, a plaintiff and her comparators must be
sufficiently similar, in an objective sense, that they “cannot reasonably be
distinguished.” Young, 135 S. Ct. at 1355. 14
b
Now, why “similarly situated in all material respects”? Most importantly,
we think that it (unlike the parties’ dueling proposals) hews closely, but also
realistically, to the ordinary meaning of “discrimination” and, when met, satisfies
14
The dissent argues at length that Young somehow supports—indeed compels—a different
result here. See Dissenting Op. at 66–76. With respect, we think the dissent over- and misreads
the Supreme Court’s decision there. We’ll highlight just two key distinctions. First, the plain
text of the Pregnancy Discrimination Act, at issue in Young, requires employers to treat “women
affected by pregnancy . . . the same for all employment-related purposes . . . as other persons not
so affected but similar in their ability or inability to work.” 42 U.S.C. § 2000e(k) (emphasis
added). As the italicized language makes clear, the comparator analysis under the PDA focuses
on a single criterion—one’s ability to do the job. Although similar, it’s not exactly the same as
the more holistic, comprehensive “all material respects” standard that we all agree applies in this
case. Second, and in any event, the fundamental question in Young, as here, was whether the
employer’s actions gave rise to valid inference of unlawful discrimination. See Young, 135 S.
Ct. at 1354. The plaintiff in Young, who had sought a waiver of a lifting requirement during her
pregnancy, met her prima facie burden by pointing to seven separate classes of non-pregnant
employees whom her employer had accommodated—three of those classes enjoyed group-wide
accommodations pursuant to a collective bargaining agreement, and four other classes of
“[s]everal employees” had been accommodated on an ad hoc, but seemingly regular, basis. See
id. at 1346–47. The sheer numbers were overwhelming. The plaintiff’s allegations in Young
showed that the employer had “accommodate[d] most nonpregnant employees with lifting
limitations while categorically failing to accommodate pregnant employees with lifting
limitations.” Id. at 1354. As the Court put the matter, rhetorically, “why, when the employer
accommodated so many, could it not accommodate pregnant women as well?” Id. at 1355. As
explained below, Lewis’s prima facie evidence—which consists entirely of comparisons to two
other officers, neither of whose situations had even arisen at the time Lewis was fired—pales in
comparison to the evidence in Young.
26
Case: 15-11362 Date Filed: 03/21/2019 Page: 27 of 100
the twin aims of the prima facie case—“eliminat[ing] the most common
nondiscriminatory reasons” for an employer’s action and thereby “giv[ing] rise to
an inference of unlawful discrimination,” Burdine, 450 U.S. at 253–54. An all-
material-respects standard also leaves employers the necessary breathing space to
make appropriate business judgments. See McKennon, 513 U.S. at 361; Furnco,
438 U.S. at 578. An employer is well within its rights to accord different treatment
to employees who are differently situated in “material respects”—e.g., who
engaged in different conduct, who were subject to different policies, or who have
different work histories. Finally, the all-material-respects standard serves the
interest of sound judicial administration by allowing for summary judgment in
appropriate cases―namely, where the comparators are simply too dissimilar to
permit a valid inference that invidious discrimination is afoot.15
* * *
We conclude, therefore, that it is not enough for a plaintiff proceeding under
McDonnell Douglas to show only that a comparison with identifiable employees
outside her class wouldn’t be “useless.” We also hold, though, that a plaintiff
15
One final point: We recognize, of course, that the Supreme Court has said that a plaintiff’s
prima facie burden is “not onerous,” Burdine, 450 U.S. at 253, and we are not concerned that our
standard violates that directive. To be clear, the “not onerous” descriptor doesn’t pertain to the
substantive standard that governs the prima facie analysis―whether Lewis’s not-useless
standard, the City’s nearly-identical standard, or our all-material-respects standard. Rather, it is
simply an acknowledgement that, by its nature, a prima facie case is preliminary, and thus is “not
as burdensome as succeeding on ‘an ultimate finding of fact as to’ a discriminatory employment
action.” Young, 135 S. Ct. at 1354 (quoting Furnco, 438 U.S. at 576).
27
Case: 15-11362 Date Filed: 03/21/2019 Page: 28 of 100
needn’t show that she and her comparators were “nearly identical.” Instead, she
must demonstrate—as part of her prima facie case—that she and her comparators
are “similarly situated in all material respects.”16
III
Having settled on—and begun to flesh out—a standard to govern the
“similarly situated” issue, we must now apply it to Lewis’s case. We conclude that
Lewis has not made out a prima facie case because she and her proffered
comparators—Sergeant McClure and Officer Heard—were not “similarly situated
in all material respects.” To be clear, in so concluding, we consider only Lewis’s
own presentation and facts not reasonably subject to dispute.17
16
One final word about the “similarly situated in all material respects” standard. It’s clear that
the dissent doesn’t much like our elaboration of that standard—calling it too “rigorous” some 25
times. See Dissenting Op. at 34, 35, 38, 43, 44, 45, 47, 48, 49, 53, 56, 57, 62, 64, 74, 97, 98.
What remains unclear, though, is how the dissent would operationalize the same standard. Its
opinion offers no real guidance, saying only that it would do so in a more “generalized” fashion.
See id. at 34, 37, 41, 42, 43, 45, 48, 50, 51, 61, 68, 74, 89. The dissent doesn’t seem to
embrace—at least explicitly—Lewis’s freewheeling not-useless test, which, as we have
explained, would effectively foreclose summary judgment in discrimination cases. It’s hard to
know, though, how the dissent would flesh out the all-material-respects standard, or when (if
ever) summary judgment would be appropriate under its rendition of that standard.
17
The dissent is thus quite mistaken in its persistent suggestions that we are indulging the City’s
“stated reasons” and thereby “collapsing the first two stages of the McDonnell Douglas inquiry.”
Dissenting Op. at 53. And, indeed, the dissent acknowledges that the key bases for
distinguishing McClure and Heard are means of “show[ing] that Lewis was not similarly
situated to her proposed comparators”; it simply says that they are not “only” that but “also”
reflect the City’s “stated reasons for why it took the action of putting Lewis on administrative
leave.” Dissenting Op. at 51. That strikes us as totally unremarkable. The point—on which all
seem to agree—is that there are material differences between Lewis’s situation, on the one hand,
from McClure’s and Heard’s, on the other.
28
Case: 15-11362 Date Filed: 03/21/2019 Page: 29 of 100
Lewis contends that she and her comparators were “similarly situated”—
even, she says, under a strict nearly-identical test—because they “were all placed
on administrative leave by the City when they could not meet a physical
qualification of the job of police officer.” Appellant’s En Banc Br. at 13. But
Lewis’s broad-brush summary glosses over critical differences. Lewis and her
comparators were placed on leave years apart and pursuant to altogether different
personnel policies and, perhaps even more importantly, for altogether different
conditions.
McClure and Heard were placed on leave pursuant to the Police
Department’s Physical Fitness/Medical Examinations policy—which, as the
dissent acknowledges, “had not yet been issued when Lewis was fired” and,
indeed, wouldn’t be promulgated for another two years. Dissenting Op. at 91.
That policy states that an officer who is “not deemed fit for duty will be placed on
unpaid administrative leave for a period of ninety (90) days”—the purpose being to
allow the officer time to improve his or her health and fitness through training,
diet, and exercise. Lewis, on the other hand, was placed on leave pursuant to the
Union City Personnel Policy, which provides in relevant part that “[a]ny
unapproved leave of absence [is] cause for dismissal.” As already explained, after
Lewis’s doctor determined that a Taser—which Lewis would be required to
carry—couldn’t be used “on” or even “near” her, Lewis was instructed to apply for
29
Case: 15-11362 Date Filed: 03/21/2019 Page: 30 of 100
FMLA leave and told that she could use any other accumulated leave “until . . .
expired.” When Lewis failed to apply for FMLA leave and exhausted her other
leave, she was terminated on the ground that, under the Personnel Policy, she was
absent without permission.18
The fact that the City applied different personnel policies to Lewis and her
comparators is unsurprising, because they were contending with very different
underlying conditions. McClure and Heard flunked physical-fitness requirements
related, respectively, to “balance” and “agility.” Both were placed on leave for 90
days to remedy the problems that caused their failures. McClure was cleared by
his doctor to re-take the balance test, took and passed it, and returned to work;
Heard was unable to demonstrate his fitness and (following an extended
negotiation with the City) was eventually terminated. For present purposes, the
important point is that the deficient physical-fitness benchmarks that sidelined
McClure and Heard were at least theoretically (and in McClure’s case, actually)
18
Presumably in an effort to shrink the distinctions between Lewis and her comparators, the
dissent strains to link the physical-fitness and personnel policies. The dissent’s theory seems to
go something like this: (1) True, as a formal matter, Lewis and her comparators were subject to
different policies; and (2) true, the physical-fitness policy pursuant to which Heard and McClure
were placed on leave didn’t even exist at the time Lewis was fired; but (3) because the record
doesn’t reveal any other source of “power” by which the City could promulgate an involuntary-
leave policy, the physical-fitness policy must be understood as deriving from “Chapter 6, § 1.A.,
in the Union City Personnel Policy Handbook”; and (4) Chapter 6 was also the source of
authority for the City’s decision to place Lewis on leave; therefore, (5) the polices are (our
paraphrase) basically the same. See Dissenting Op. 84–92. Even beyond our general doubt that
the post-Lewis physical-fitness policy must necessarily emanate from the employee handbook,
we simply can’t indulge the dissent’s attenuated chain of connectedness.
30
Case: 15-11362 Date Filed: 03/21/2019 Page: 31 of 100
remediable. Lewis, by contrast, failed a training requirement—pertaining
specifically to the carriage and use of a deadly weapon—on the ground that she
suffered from what her doctor described as a “chronic” heart condition, see Doc.
58-3 at 6, and what she herself has called a “permanent” heart injury, see Doc. 72
at 8. And unlike McClure, for instance, Lewis was never cleared by her doctor to
participate in the required training. 19
For these reasons—because they were subject to different personnel policies
and placed on leave for different underlying conditions—we conclude that
McClure and Heard were not similar to Lewis “in all material respects,” and thus
were not valid comparators for purposes of Lewis’s prima facie case.
IV
In sum, we hold that when a plaintiff relies on the McDonnell Douglas
burden-shifting framework to prove an intentional-discrimination claim using
19
The dissent tellingly does not deny that unlike McClure and Heard, who were diagnosed with
what appeared to be temporary conditions, Lewis’s ailment was “chronic” and “permanent.”
Instead, the dissent strains to suggest that because the City twice told Lewis that she was being
placed on leave “until” her doctor released her for active duty, it must have anticipated an
eventual clearance and return. Dissenting Op. at 78–79. The dissent is asking the word “until”
carry more weight than it can bear. The City’s “until” communications were agnostic as to the
likelihood of Lewis’s return; they manifested no expectation one way or the other. Their point
was simply to inform Lewis that without a doctor’s note—hard proof—she could not return to
service. And of course, as we know—and as the dissent does not deny—Lewis’s doctor never
cleared her for Taser training. (Nor was there any likelihood that she would do so, given that in
her last communication with the City—even after Lewis’s termination—she continued to
“recommend that [Lewis] not be Tasered secondary to [her] medical condition,” Doc. 69-1 at 50,
because she still “did not know how the ‘Taser’ would affect Lewis,” id. at 54.)
31
Case: 15-11362 Date Filed: 03/21/2019 Page: 32 of 100
circumstantial evidence, she must demonstrate—as part of her prima facie case—
that she was treated differently from other individuals with whom she was
similarly situated in all material respects. We further hold that Lewis has failed to
do so.
The case is REMANDED to the panel for proceedings consistent with this
opinion.20
20
Neither Lewis’s ADA claims, see supra at 6 n.2, nor her “convincing mosaic” theory of Title
VII liability, see supra at 9 n.6, are before the en banc court. Those issues, and any other
pending matters, are remanded to the panel for resolution in the first instance.
32
Case: 15-11362 Date Filed: 03/21/2019 Page: 33 of 100
ROSENBAUM, Circuit Judge, joined by MARTIN and JILL PRYOR, Circuit
Judges, concurring in part and dissenting in part:
The Supreme Court created the McDonnell Douglas 1 framework as a delicate
balance between an employee’s right to work free from discrimination and an
employer’s right to take action against an employee for any nondiscriminatory
reason. Today, the Majority Opinion drops an anvil on the employer’s side of the
balance. Though the Majority Opinion correctly defines “similarly situated” within
the McDonnell Douglas framework as “similarly situated in all material respects,”
Maj. Op. at 5, 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.
1
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801–04 (1973).
33
Case: 15-11362 Date Filed: 03/21/2019 Page: 34 of 100
First, faced with how and where to implement the “similarly situated”
standard, the Majority Opinion rigorously2 applies the standard entirely3 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. In ratcheting up the prima facie stage’s
2
I regret that the Majority Opinion seems to take offense at my use of this word. See Maj.
Op. at 28 n.16. It prefers to use the word “meaningful” to describe its application of the “similarly
situated” standard. See id. at 4, 16. But this preference sows confusion in the discussion since the
Majority Opinion construes what a “meaningful” application of the comparator standard is far
more strictly than others who have used that same word to describe the proper application of the
“similarly situated” standard. For example, the Majority Opinion criticizes the Seventh Circuit’s
articulation of the “similarly situated” standard as “too lax.” See Maj. Op. at 18 (quoting Lewis’s
En Banc Br. at 34 (quoting Coleman v. Donahoe, 667 F.3d 835, 846 (7th Cir. 2012)). But as it
turns out, the Seventh Circuit has used the very same word—“meaningful”—as the Majority
Opinion to describe its understanding of the degree of similarity the “similarly situated” standard
requires. See Coleman, 667 F.3d at 841 (quoting Humphries v. CBOCS W., Inc., 474 F.3d 387,
405 (7th Cir. 2007)) (“[T]he similarly-situated inquiry is flexible, common-sense, and factual. It
asks ‘essentially, are there enough common features between the individuals to allow a
meaningful comparison?’”) (emphasis added). So to avoid confusion and to be precise about the
level of likeness the Majority Opinion’s application of the “similarly situated” standard actually
requires—and not with any intent to offend the Majority Opinion—I refer to the Majority
Opinion’s application of the “similarly situated” standard as “rigorous.”
3
See, e.g., Maj. Op. at 10 (characterizing where in the McDonnell Douglas framework the
“similarly situated” analysis should occur as an either-or proposition: “[S]hould the ‘similarly
situated’—i.e., comparator—analysis be conducted at the prima facie stage of the McDonnell
Douglas framework, . . . or should it instead be reserved for the pretext stage?”) (emphasis added).
The Majority Opinion’s analysis itself also neither identifies nor leaves any aspect of the “similarly
situated” analysis to be conducted at the pretext stage. Nor does the Majority Opinion ever
disclaim that it conducts the entire comparator inquiry at the prima facie stage.
34
Case: 15-11362 Date Filed: 03/21/2019 Page: 35 of 100
“similarly situated” standard, the Majority Opinion defies the purpose of Title VII
and the McDonnell Douglas framework.
How the “similarly situated” inquiry is implemented matters: if it is turned up
too high at the prima facie stage, it sweeps in the employer’s nondiscriminatory
reasons. And considering the employer’s nondiscriminatory reasons at the prima
facie stage flouts Supreme Court precedent. It also affects whether the employee
ever has a chance to demonstrate that the employer’s reasons were pretextual or
whether the court must instead blindly accept the employer’s untested assertions as
a non-discriminatory basis for the employer’s decision. So by 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.
And the errors do not end there. In applying the “similarly situated” standard
to Lewis’s facts, the Majority Opinion overly broadly construes the term “material”
in that standard. As a result, it requires comparators to be similarly situated in
immaterial ways. The Majority Opinion also omits key facts showing that Lewis
and her two chosen comparators were “similarly situated” in all material ways, while
violating an elementary principle of summary-judgment review by assuming facts
in favor of the Department that are not supported by the record.
35
Case: 15-11362 Date Filed: 03/21/2019 Page: 36 of 100
We will almost always be able to find a difference between a plaintiff and her
proposed comparators if we strain our eyes looking hard enough. But as the Majority
Opinion stresses, the “similarly situated” test is meant to ensure only that “apples
[are] compared to apples.” Maj. Op. at 22. By focusing on trivial differences,
though, the Majority Opinion uses the word “material” to bar meaningful
comparisons between Honeycrisp and SnapDragon apples. 4 So the Majority
Opinion finds that Lewis’s claim fails because her doctor’s note recommending
against Tasing and pepper-spraying her rendered her too dissimilar from her
comparators who had balance and agility issues—even though the upshot of all three
officers’ conditions was that the City deemed them all physically unfit to patrol the
streets of Union City and, in turn, relied on that fact to put them all on administrative
leave. Meanwhile, Lewis, an African-American woman, received only 21 days of
administrative leave before being fired, but one white male comparator enjoyed 449
days before his dismissal and the other got up to 90 days to demonstrate he had
become physically fit enough to resume his duties.
In applying the “similarly situated” standard to Lewis’s facts to eliminate
comparators who actually were similarly situated to her in all material respects, the
4
Honeycrisp and Snapdragon apples are two of the roughly 7,500 varieties of apples in the
world. https://extension.illinois.edu/apples/facts.cfm (last visited Mar. 19, 2019). Created by
Cornell University and the New York Apple Growers, the SnapDragon apple boasts the
Honeycrisp apple as a parent. http://news.cornell.edu/stories/2013/08/snapdragon-and-rubyfrost-
are-new-apple-varieties (last visited Mar. 19, 2019).
36
Case: 15-11362 Date Filed: 03/21/2019 Page: 37 of 100
Majority Opinion contradicts 46 years of Supreme Court precedent, elevates the
“similarly situated” requirement to one of form over substance, and incorrectly
concludes that the district court did not err in entering summary judgment against
Lewis.
I respectfully dissent from these errors.
I.
I begin with the Majority Opinion’s error in how and where it has
implemented the “similarly situated” standard within the McDonnell Douglas
framework.
In Section A, I explain that the Supreme Court established the McDonnell
Douglas burden-shifting framework to allow plaintiffs who lack direct evidence of
discrimination to nonetheless obtain fair scrutiny of their claims that they have been
discriminated against in the workplace—that is, as a delicate balance between
employers’ rights to make legitimate personnel decisions and employees’ rights to
be free from “those discriminatory practices . . . which have fostered racially
stratified job environments . . . .” McDonnell Douglas Corp. v. Green, 411 U.S.
792, 800 (1973). Section B demonstrates that the Supreme Court’s remarks about
how the McDonnell Douglas analysis works demand the conclusion that the
comparator requirement is minimal and generalized at the plaintiff’s initial burden—
the prima facie stage—and progresses to more specificity only at the last stage—the
37
Case: 15-11362 Date Filed: 03/21/2019 Page: 38 of 100
pretext inquiry—of the framework. Next, Section C shows that the Supreme Court’s
actual analyses in McDonnell Douglas itself and in its progeny followed this funnel-
like application of the “similarly situated” requirement in the specificity they
required of comparator evidence. In Section D, I explain how the Majority
Opinion’s decision to move the entire “similarly situated” inquiry into the prima
facie case inflicts a significant blow on a plaintiff’s ability to establish discrimination
in circumstantial cases and upsets the delicate balance struck by the McDonnell
Douglas framework. And finally, Section E explores how the Majority Opinion errs
and concludes that conducting the complete and rigorous comparator analysis at the
prima-facie-case stage is fatally flawed.
A.
“[I]t is abundantly clear that Title VII tolerates no racial discrimination, subtle
or otherwise.” McDonnell Douglas, 411 U.S. at 801. Title VII’s prohibitions against
discrimination undoubtedly “reflect an important national policy,” U.S. Postal Serv.
Bd. of Governors v. Aikens, 460 U.S. 711, 716 (1983), because of “society’s
consensus that discrimination . . . is a profound wrong of tragic dimension,”
Patterson v. McLean Credit Union, 491 U.S. 164, 188 (1989). To effectuate Title
VII’s broad, nationally important remedial purposes, the Supreme Court has
cautioned against issuing opinions that “signal[] one inch of retreat from Congress’
policy to forbid discrimination in the private, as well as the public, sphere.” Id.
38
Case: 15-11362 Date Filed: 03/21/2019 Page: 39 of 100
Yet despite this unyielding mandate, plaintiffs often face a paradox: “Unless
the employer is a latter-day George Washington, employment discrimination is as
difficult to prove as who chopped down the cherry tree,” Thornbrough v. Columbus
& Greenville R. Co., 760 F.2d 633, 638 (5th Cir. 1985), because employers of “even
minimal sophistication will neither admit discriminatory animus nor leave a paper
trail demonstrating it . . . .” Riordan v. Kempiners, 831 F.2d 690, 697 (7th Cir.
1987); see also Grigsby v. Reynolds Metals Co., 821 F.2d 590, 595 (11th Cir. 1987)
(“[P]laintiffs . . . rarely are fortunate enough to have access to direct evidence of
intentional discrimination.”). To chip away at that paradox, “[c]ourts today must be
increasingly vigilant” because “[t]he sophisticated would-be violator has made our
job a little more difficult.” Aman v. Cort Furniture Rental Corp., 85 F.3d 1074,
1082 (3d Cir. 1996).
That’s where McDonnell Douglas comes in. The “entire purpose” of
McDonnell Douglas “is to compensate for the fact that direct evidence of intentional
discrimination is hard to come by.” Price Waterhouse v. Hopkins, 490 U.S. 228,
271 (1989) (O’Connor, J., concurring), superseded in part by The Civil Rights Act
of 1991, Tit. I, § 107(a), 105 Stat. 1075 (codified at 42 U.S.C. § 2000e–2(m)); see
also Grigsby, 821 F.2d at 595 (“The McDonnell Douglas-Burdine patterns of proof
were designed to ease the evidentiary burdens on employment discrimination
plaintiffs . . . .”). So the McDonnell Douglas framework is “designed to assure that
39
Case: 15-11362 Date Filed: 03/21/2019 Page: 40 of 100
the ‘plaintiff [has] his day in court despite the unavailability of direct evidence.’”
Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985) (alteration in
original) (quoting Loeb v. Textron, Inc., 600 F.2d 1003, 1014 (1st Cir. 1979)).
B.
To accomplish this aim, McDonnell Douglas established a delicately balanced
three-step framework, allocating the burden of production and the order for the
presentation of proof in a funnel-like way that narrows from the first step of the
framework to the third. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506
(1993). The Supreme Court has described the McDonnell Douglas framework as
“progressively . . . sharpen[ing] the inquiry into the elusive factual question of
intentional discrimination.” Burdine, 450 U.S. at 255 n.8.
At the first step of the McDonnell Douglas framework, the plaintiff must set
forth a prima facie case of discrimination. Tex. Dep’t of Cmty. Affairs v. Burdine,
450 U.S. 248, 252-53 (1981). We have construed that requirement to mean that a
plaintiff must show that (1) she belongs to a protected group, (2) she was subjected
to an adverse employment action, (3) she was qualified to perform the job in
question, and (4) her employer more favorably treated “similarly situated”
employees outside her protected group. See, e.g., Holifield v. Reno, 115 F.3d 1555,
1561–62 (11th Cir. 1997) (citation omitted). The Supreme Court has noted that at
40
Case: 15-11362 Date Filed: 03/21/2019 Page: 41 of 100
the first phase of the framework, “[t]he burden . . . is not onerous,”5 Burdine, 450
U.S. at 253, and, in fact, is “minimal,” St. Mary’s, 509 U.S. at 506.
Following the Court’s lead, we in the past have ourselves described the
plaintiff’s prima facie burden as “light,” Turlington v. Atlanta Gas Light Co., 135
F.3d 1428, 1432 (11th Cir. 1998), and as “a low bar to hurdle,” Flowers v. Troup
Cty., Sch. Dist., 803 F.3d 1327, 1336 (11th Cir. 2015). Other Circuits have also
observed that the prima facie case requires only a “small showing” that can be
“easily made,” Caraballo-Caraballo v. Corr. Admin., 892 F.3d 53, 57 (1st Cir.
2018), because it was “not meant to stymie plaintiffs,” Cline v. Catholic Diocese of
Toledo, 206 F.3d 651, 660 (6th Cir. 2000). As the Supreme Court has explained, the
prima facie phase anticipates that the plaintiff need make only a “generalized”
showing of the elements of its case. St. Mary’s, 509 U.S. at 516.
5
The Majority Opinion attempts to dismiss the Supreme Court’s bedrock principle that
McDonnell Douglas’s prima facie burden is “not onerous” by simultaneously calling it a mere
“descriptor [that] doesn’t pertain to the substantive standard that governs the prima facie analysis”
and “simply an acknowledgement that, by its nature, a prima facie case is preliminary, and thus is
not as burdensome as succeeding on an ultimate finding of fact as to a discriminatory employment
action.” Maj. Op. at 27 n.15 (citing Young v. United Parcel Serv., Inc., 135 S. Ct. 1338, 1354
(2015) (quoting Furnco Const. Corp. v. Waters, 438 U.S. 567, 576 (1978)). This is a lot like the
Black Knight in Monty Python and the Holy Grail dismissing his dismembering as “just a flesh
wound.” https://www.imdb.com/title/tt0071853/quotes?ref_=tt_ql_trv_4 (last visited Mar. 19,
2019). Both grievously understate the significance of what they minimize. On top of that, most
respectfully, the Majority Opinion’s effort to split hairs is nonsensical, and neither McDonnell
Douglas nor any of its progeny—Young and Furnco included—in fact, supports the notion that
McDonnell Douglas’s “not onerous” burden does not apply to the substantive standards that
govern the prima facie case. See infra at Sections I.E, II.A (pp. 33-44).
41
Case: 15-11362 Date Filed: 03/21/2019 Page: 42 of 100
This “minimal” burden to make a “generalized” showing at the prima facie
stage ensures the prima facie case acts as a hill and not a mountain in these
notoriously difficult-to-prove cases. An employee often finds herself at a significant
disadvantage to an employer when it comes to knowing the reasons for the
employer’s employment decision and to having access to information concerning
both that decision and potential comparators. So we have recognized “that the prima
facie case is designed to include only evidence that is objectively verifiable and
either easily obtainable or within the plaintiff’s possession.” Vessels v. Atlanta
Indep. Sch. Sys., 408 F.3d 763, 769 (11th Cir. 2005) (citing Walker v. Mortham, 158
F.3d 1177, 1192–93 (11th Cir. 1998)); see also Price Waterhouse, 490 U.S. at 271
(O’Connor, J., concurring).6
This, of course, makes even more sense in light of the prima facie case’s
design to eliminate only “the most common nondiscriminatory reasons” for the
employment action. Burdine, 450 U.S. at 253–54; see also Maj. Op. at 13 (citations
omitted).
Once a plaintiff clears that “low bar” by establishing a prima facie case, the
employer—who is in the best position to know why it took action—must come
forward with a nondiscriminatory reason for its employment action. See Burdine,
6
As I have noted, Justice O’Connor has remarked that “the entire purpose of the McDonnell
Douglas prima facie case is to compensate for the fact that direct evidence of intentional
discrimination is hard to come by.”
42
Case: 15-11362 Date Filed: 03/21/2019 Page: 43 of 100
450 U.S. at 255. Only after the defendant offers its nondiscriminatory reason at the
second stage of the McDonnell Douglas framework does “the factual inquiry
[‘sharpen’ and] proceed[] to a new level of specificity” at the third McDonnell
Douglas juncture—the pretext phase. Id. at 255 & n.8.
Significantly, the Supreme Court has explained that at this third stage, “the
inquiry now turns from the few generalized factors that establish a prima facie case
to the specific proofs and rebuttals of discriminatory motivation the parties have
introduced.” St. Mary’s, 509 U.S. at 516. Only here does the “plaintiff’s burden of
showing pretext ‘merge[]’ with the ultimate burden of demonstrating unlawful
discrimination.” Clark v. Huntsville City Bd. of Educ., 717 F.2d 525, 529 (11th Cir.
1983) (quoting Burdine, 450 U.S. at 256).
Seizing on Supreme Court jurisprudence, several of our sister Circuits have
expressly observed that the funnel-like nature of the McDonnell Douglas framework
demands a funnel-like inquiry into comparators, narrowing from the “minimal,”
“generalized,” and “not onerous” burden at the prima facie stage to a burden of more
heightened specificity at the pretext stage. For example, the Sixth Circuit has
explained that “a general weighing of the qualifications of [the plaintiff] and [her
comparator] is necessary at the prima facie stage; however, this light review must
be distinguished from the more rigorous comparison conducted at the later stages of
43
Case: 15-11362 Date Filed: 03/21/2019 Page: 44 of 100
the McDonnell Douglas analysis.” Provenzano v. LCI Holdings, Inc., 663 F.3d 806,
813–14 (6th Cir. 2011).
Other Circuits have also arrived at this same conclusion. For instance, the
Eighth Circuit has opined that “the low-threshold standard [for determining at the
prima facie stage whether employees are similarly situated] more accurately reflects
Supreme Court precedent.” Wimbley v. Cashion, 588 F.3d 959, 962 (8th Cir. 2009)
(citation and internal quotation marks omitted). Similarly, the Tenth Circuit has
remarked that “while evidence that a defendant treated a plaintiff differently than
similarly-situated employees is certainly sufficient to establish a prima facie case, it
is ‘[e]specially relevant’ to show pretext if the defendant proffers a legitimate,
nondiscriminatory reason for the adverse employment action.” EEOC v.
Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1195 n.6 (10th Cir. 2000).7
In fact, before today, we ourselves had caselaw that implicitly recognized that
McDonnell Douglas required the “similarly situated” standard to be applied more
generally at the prima facie stage before applying that standard more rigorously at
7
See also Lee v. Kansas City S. Ry. Co., 574 F.3d 253, 262 (5th Cir. 2009) (“We should
not be understood to say that the distinctions noted by KCS are not relevant; indeed they might
very well prove to be relevant [at the pretext stage] in the event that KCS proffers a legitimate
nondiscriminatory explanation . . . . But our sole task today is to determine whether Lee satisfied
his burden of establishing a prima facie case . . . .”); Coleman, 667 F.3d at 859 n.7 (describing
Circuits that “channel comparator evidence into the pretext phase of the sequence” as “hewing
more closely to McDonnell Douglas); Simpson v. Kay Jewelers, Div. of Sterling, Inc., 142 F.3d
639, 646 (3d Cir. 1998).
44
Case: 15-11362 Date Filed: 03/21/2019 Page: 45 of 100
the pretext juncture. For example, in Walker v. Mortham, 158 F.3d 1177, 1192
(11th Cir. 1998), a failure-to-promote case, we warned that courts are “prohibit[ed]
from requiring a plaintiff to prove” at the prima facie stage that she had the same
qualifications as the applicant that the employer promoted. As Judge Tjoflat
cogently explained, forcing the plaintiff to make such a rigorous showing at the
prima facie stage “runs contrary to the policies underlying the McDonnell Douglas
prima facie case.” Id. Based on the language and purpose of McDonnell Douglas
and its progeny, as I have explained, we were right to reach this conclusion.
This dichotomous approach to the rigor applied to proposed comparators
accords with the difference in what the prima facie and pretext stages are meant to
do. In contrast to the pretext stage, plaintiffs do not have the “ultimate burden of
demonstrating unlawful discrimination” at the prima face phase. Burdine, 450 U.S.
at 256. Instead, the plaintiff’s prima facie burden is “quite different,” Furnco Const.
Corp. v. Waters, 438 U.S. 567, 575 (1978), and “not as burdensome as succeeding
on ‘an ultimate finding of fact as to’ a discriminatory employment action, Young v.
United Parcel Serv., Inc., 135 S. Ct. 1338, 1354 (2015) (quoting Furnco, 438 U.S.
at 576). So it is critical for a court to require a plaintiff to satisfy only her “not
onerous,” “generalized” burden at the prima facie juncture, instead of applying the
“more rigorous standard at the prima facie stage,” which “‘conflate[s] the prima
facie case with the ultimate issue of discrimination . . . .’” Rodgers v. U.S. Bank,
45
Case: 15-11362 Date Filed: 03/21/2019 Page: 46 of 100
N.A., 417 F.3d 845, 852 (8th Cir. 2005), abrogated on other grounds by Torgerson
v. City of Rochester, 643 F.3d 1031 (8th Cir. 2011) (quoting Williams v. Ford Motor
Co., 14 F.3d 1305, 1308 (8th Cir. 1994)). Yet the Majority Opinion, after
introducing its hyper-specific prima facie comparator analysis, provides no
indication as to how it expects the inquiry to “proceed[] to a new level of specificity”
at the pretext stage. Burdine, 450 U.S. at 255. By maxing out the specificity at the
prima facie stage, it simply ignores Supreme Court precedent.
C.
Courts’ practices of reserving the specificity of the comparator inquiry for the
pretext stage comport not only with the Supreme Court’s language in McDonnell
Douglas and its progeny but also with those cases’ actual analyses. In McDonnell
Douglas, the plaintiff, a mechanic who had previously been laid off by McDonnell
Douglas, applied for reemployment and was turned down. 411 U.S. at 794–96. The
plaintiff filed suit, alleging, as relevant here, race discrimination. Id. at 796–97. The
Supreme Court concluded that the plaintiff had successfully met his prima facie
burden by showing that McDonnell Douglas “sought mechanics, [the plaintiff’s]
trade, and continued to do so after [the plaintiff’s] rejection”; that McDonnell
Douglas did not dispute the plaintiff’s qualifications; and that McDonnell Douglas
acknowledged that the plaintiff’s prior work performance was satisfactory. Id. at
802.
46
Case: 15-11362 Date Filed: 03/21/2019 Page: 47 of 100
At the second stage, McDonnell Douglas stated that it had declined to rehire
the plaintiff because he had previously participated in civil disobedience against
McDonnell Douglas. Id. at 803.
Turning to the pretext phase of the inquiry, the Supreme Court remanded the
case to allow the plaintiff “a fair opportunity to show that [McDonnell Douglas’s]
stated reason for [the plaintiff’s] rejection was in fact pretext.” Id. at 804. And for
the first time in the three-step analysis, the Supreme Court became more specific
about comparator evidence. Whereas at the prima facie stage the Supreme Court
accepted as comparators any white mechanic who had been rehired, at the pretext
juncture, the Supreme Court explained, “Especially relevant to [a pretext showing]
would be evidence that white employees involved in acts against petitioner of
comparable seriousness to the [plaintiff’s civil disobedience] were nevertheless
retained or rehired.” Id. (emphasis added). So only at the pretext stage did the
Supreme Court determine that considering McDonnell Douglas’s treatment of white
mechanics who engaged in acts of “comparable seriousness,” as opposed to simply
white mechanics, was appropriate.
Indeed, the Supreme Court has never rigorously scrutinized comparators at
the prima facie stage. 8 For instance, in Furnco, the Court determined that the
8
The Majority Opinion characterizes this factually and legally accurate discussion of
McDonnell Douglas’s treatment of the comparator inquiry as “suggest[ing] that McDonnell
Douglas itself somehow indicates that the analysis of comparators should be relegated to the
47
Case: 15-11362 Date Filed: 03/21/2019 Page: 48 of 100
plaintiffs satisfied their prima facie burden by showing only that they were qualified,
“and the employer continued to seek persons of similar qualifications.” 438 U.S. at
576. And in St. Mary’s, the Court found the prima facie burden satisfied when the
plaintiff demonstrated only that he “was qualified for the position . . . , that he was
demoted from that position . . . , and . . . that the position remained open and was
ultimately filled by a white man.” 509 U.S. at 506.
In short, the purpose of the McDonnell Douglas framework, the language of
McDonnell Douglas and its progeny, and the analysis set forth in McDonnell
Douglas itself all unmistakably demonstrate that the “similarly situated”
requirement must be applied in a “generalized,” “minimal” way at the prima facie
stage and in a more “particulari[zed]” way at the pretext phase.
tertiary pretext stage.” Maj. Op. at 16 n.9. To be clear, that is not the point I make. The point is
that beginning with McDonnell Douglas, the Supreme Court has always conducted the comparator
analysis in a “generalized” and “not onerous” way at the prima facie stage and a more rigorous
way at the pretext stage. That is irrefutable. And tellingly, the Majority Opinion makes no effort
to refute it—even though it does not follow it. Nor, despite its general invocation of “subsequent
Supreme Court precedent,” id., does the Majority Opinion identify a single case where, at the
prima facie stage, the Supreme Court conducted the rigorous type of comparator inquiry at the
prima facie stage the Majority Opinion insists upon today. Instead of responding substantively by
pointing to Supreme Court precedent supporting its position that the rigorous and complete
comparator inquiry occurs at the prima facie stage, the Majority Opinion redirects, incorrectly
suggesting that I disagree that it is “prop[er]” and “necess[ary]” to “conduct[] a comparative
analysis as part of the prima facie stage.” Id. I don’t. I am certain that McDonnell Douglas and
its progeny require a comparator inquiry at the prima facie stage—a “not onerous” and
“generalized” comparator inquiry.
48
Case: 15-11362 Date Filed: 03/21/2019 Page: 49 of 100
D.
The Majority Opinion’s insistence on creating a rigorous one-stop shop for
analyzing comparators at the prima facie stage throws the McDonnell Douglas
framework’s delicate balance out of whack. It effectively considers the employer’s
nondiscriminatory reasons (the second-stage inquiry) at the first stage—the prima
facie case—without providing the protection of allowing the employee to present
evidence and argument challenging those reasons as pretext for discrimination. As
a result, the Majority Opinion’s heightened application of the “similarly situated”
standard at the prima facie juncture significantly reduces the employee’s chances of
surviving summary judgment.
Supreme Court precedent precludes what the Majority Opinion does. In
particular, the Supreme Court prohibits consideration, at the prima facie stage, of the
employer’s reason for its actions, since allowing the employer’s reason for its actions
to seep into the prima facie inquiry unfairly weights McDonnell Douglas’s delicate
balance in favor of the employer.
But before we can fully appreciate Supreme Court precedent on this point, we
must pause briefly to consider the interconnected relationship between the rigor
applied to the “similarly situated” comparator inquiry and the employer’s stated
nondiscriminatory reason for its actions. When we do, we find that the “similarly
49
Case: 15-11362 Date Filed: 03/21/2019 Page: 50 of 100
situated” comparator requirement and the employer’s nondiscriminatory reason for
its actions can be two sides of a single coin.
Employers often argue as their nondiscriminatory reason that the plaintiff and
her comparator’s situations differed in some way that justified the different
treatment. In other words, employers tend to assert that the plaintiff and her
proposed comparator were not “similarly situated.” So if we allow the employer’s
view of who is “similarly situated” to the plaintiff to govern the “similarly situated”
inquiry at the prima facie stage, we necessarily import into the prima facie phase the
employer’s reason for its actions—even though McDonnell Douglas prohibits such
consideration until the second and third junctures of the framework.
In fact, we need not look any further than the Majority Opinion to see this
principle at work. Though Lewis met her “generalized,” “not onerous,” and
“minimal” prima facie burden to establish she was “similarly situated” to McClure
and Heard when she showed that all three were patrol officers put on administrative
leave by the Department because they were not physically fit for duty, the Majority
Opinion nonetheless concludes that she failed to satisfy her burden. And it does so
because it reasons that Lewis “was placed on leave pursuant to the Union City
Personnel Policy” on administrative leave, while “McClure and Heard were placed
on leave pursuant to the Police Department’s Physical Fitness/Medical
Examinations policy,” and Lewis “suffered . . . a ‘chronic’ heart condition,” while
50
Case: 15-11362 Date Filed: 03/21/2019 Page: 51 of 100
McClure and Heard had “balance” and “agility” problems, respectively. Maj. Op.
at 29-31.
But, of course, these are not only ways of purporting to show that Lewis was
not similarly situated to her proposed comparators; they also reflect the
Department’s stated reasons for why it took the action of putting Lewis on
administrative leave.9 Now, to be clear, and as explained further at Section II.B.
(pages 59-66), infra, that Lewis met her prima facie burden does not mean we do
not consider these offered nondiscriminatory reasons for the Department’s actions,
which effectively propose a more particularized application of the “similarly
9
The Majority Opinion confusedly suggests I somehow endorse the idea that, at the prima
facie stage, Lewis was not “similarly situated” with McClure and Heard because Lewis “was
placed on leave pursuant to the Union City Personnel Policy” on administrative leave, while
“McClure and Heard were placed on leave pursuant to the Police Department’s Physical
Fitness/Medical Examinations policy,” and Lewis “suffered . . . a ‘chronic’ heart condition,’ while
McClure and Heard had “balance” and “agility problems,” respectively. See Maj. Op. at 28 n.17.
I don’t. The Majority Opinion misses my point: the Department’s view of why McClure and Heard
should not be appropriate comparators for Lewis is just another way the Department states its
purported nondiscriminatory reason for its actions against Lewis—something that should not be
considered under the McDonnell Douglas framework until the second and third stages, or else we
import the second and third parts of the McDonnell Douglas analysis into the prima facie stage.
As I have explained elsewhere in this opinion, at the prima facie stage, the comparator burden is
“not onerous,” “minimal,” and “generalized.” It becomes more particularized at the pretext
juncture. Here, Lewis asserted (and I explore further infra at 56-58), that she and her comparators
had similar job responsibilities, had similar job titles, had similar seniority, and were supervised
by the same person. And most important, the Department put all three on involuntary
administrative leave for being physically unfit for duty. Yet Lewis presented evidence that the
Department gave Lewis just 21 days of administrative leave while affording McClure and Heard
90 and 449 days of administrative leave, respectively. For purposes of satisfying her
“generalized,” “minimal,” and “not onerous” prima facie “similarly situated” burden, this suffices.
Whether the Department’s response to Lewis’s prima facie case suggests that, in fact, the
Department had a nonpretextual, nondiscriminatory reason for considering Lewis and her
comparators not to be similarly situated is a consideration for the more particularized comparator
inquiry at the third stage of the McDonnell Douglas framework.
51
Case: 15-11362 Date Filed: 03/21/2019 Page: 52 of 100
situated” standard. We must. But we do so at the pretext stage, after the employer
presents them at McDonnell Douglas’s second stage.
The Majority Opinion’s failure to follow this sequence is wrong for at least
two reasons. First, the Supreme Court in U.S. Postal Service Board of Governors v.
Aikens, 460 U.S. 711 (1983), prohibits us from using the employer’s
nondiscriminatory reason to find that the plaintiff failed to establish her prima facie
case. In Aikens, the district court reversed its initial findings that the plaintiff had
satisfied his prima facie burden, upon considering the defendant’s explanation for
why the employee was not promoted. See id. at 716. The Supreme Court found this
analysis fundamentally flawed. Once the employer “responds to the plaintiff’s proof
by offering evidence of the reason for the plaintiff’s rejection,” the Court explained,
whether or not the plaintiff made out a prima facie case “is no longer relevant.” Id.
at 714.
Rather, by providing its nondiscriminatory reason, the employer moves the
inquiry to the pretext stage, where we must decide the “ultimate question” of whether
its action against the plaintiff was discriminatory. Id. At this point, courts cannot
resolve the case by returning to the prima facie stage. Id. at 717. So under Aikens,
courts may not consider the employer’s nondiscriminatory reasons offered at the
second McDonnell Douglas stage to determine that a plaintiff has failed to establish
52
Case: 15-11362 Date Filed: 03/21/2019 Page: 53 of 100
a prima facie case.10 Yet disappointingly, the Majority Opinion never even attempts
to explain how it can be squared with Aikens.
Second, by collapsing the first two stages of the McDonnell Douglas inquiry
into the prima facie phase, the Majority Opinion not only strays from Aikens, it also
inflicts significant consequences on McDonnell Douglas’s delicate balance—and
therefore on plaintiffs. If the rigorous application of the “similarly situated”
requirement occurs at the prima facie stage, it forecloses the plaintiff from
challenging the employer’s stated reasons for why it deems the plaintiff not similarly
situated to more favorably treated potential comparators. Instead, the court must
10
Our sister Circuits have fallen in line with what Aikens demands. For instance, then-
Judge Kavanaugh wrote for the District of Columbia Circuit that “as we read the Supreme Court
precedents beginning with Aikens, the prima facie case is a largely unnecessary sideshow” because
“by the time the district court considers an employer’s motion for summary judgment . . . the
employer ordinarily will have asserted a legitimate, non-discriminatory reason for the challenged
decision . . . .” Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008); see also
id. (“[W]here an . . . employer has asserted a legitimate, non-discriminatory reason . . . in
considering an employer’s motion for summary judgment or judgment as a matter of law in those
circumstances, the district court must resolve one central question: Has the employee [shown
pretext]?”); Riser v. Target Corp., 458 F.3d 817, 820–21 (8th Cir. 2006) (reasoning that, in a Title
VII case, on review of a district court’s grant of summary judgment, an appellate court should
focus on the ultimate question of retaliation or employment discrimination rather than on the prima
facie burden so that the court may “see the forest through the trees”); Noble v. Brinker Int’l, Inc.,
391 F.3d 715, 720–21 (6th Cir. 2004) (finding that once the defendant produced purportedly non-
discriminatory justifications for its actions, “our duty, given Aikens, is simply to determine whether
[the plaintiff] produced sufficient evidence to support the jury’s finding of intentional
discrimination”). And before today, we likewise heeded Aikens’s command. Collado v. United
Parcel Serv., Co., 419 F.3d 1143, 1151 (11th Cir. 2005) (“[O]nce the [inquiry] has proceeded to
the second step of the McDonnell Douglas burden-shifting framework, the first step, which is the
prima facie issue, should be left behind.”). Although Aikens came to the Supreme Court after the
case had already gone to trial, “it makes no sense to apply Aikens post-trial but not at the summary-
judgment stage.” Wells v. Colo. Dep’t of Transp., 325 F.3d 1205, 1227 (Hartz, J., writing
separately) (10th Cir. 2003).
53
Case: 15-11362 Date Filed: 03/21/2019 Page: 54 of 100
simply accept the employer’s reason because it masquerades as the plaintiff’s failure
to show that she was “similarly situated” to her proposed comparator and prevents
the plaintiff from establishing her prima facie case. And if the court concludes the
plaintiff has not made out a prima facie case, the plaintiff cannot reach the third stage
of the McDonnell Douglas framework, which is the first place a plaintiff can
challenge the employer’s stated reasons for its actions.
If, on the other hand, the heightened inquiry into “similarly situated”
comparators occurs at the pretext stage, the plaintiff receives the chance to
demonstrate pretext. And to the extent that a plaintiff can raise a material issue of
fact concerning the employer’s stated reason for its employment action—that is, cast
doubt on the truthfulness of the employer’s classification of the plaintiff as not
“similarly situated” to more favorably treated employees—the plaintiff has the
chance to do so and can survive summary judgment. See Burdine, 450 U.S. at 256
(reasoning that at the pretext stage, the employee “now must have the opportunity to
demonstrate that the proffered reason was not the true reason for the employment
decision.”); cf. id. at 256 n.10 (“Indeed, there may be some cases where the
plaintiff’s initial evidence [its prima facie case], combined with effective cross-
examination of the defendant, will suffice to discredit the defendant’s explanation”).
So locating the more onerous “similarly situated” standard at the pretext
juncture instead of frontloading it in the prima facie case effectuates McDonnell
54
Case: 15-11362 Date Filed: 03/21/2019 Page: 55 of 100
Douglas’s purpose to allow a plaintiff who lacks direct proof of discrimination—by
definition, the only type of plaintiff who relies on the McDonnell Douglas
framework—a chance to show that the same employer who might not have been
forthright about its reasons for taking action against her (thus causing her to have to
use the McDonnell Douglas analysis to prove her case) may not be entirely candid
in litigation where it defends its actions.
Before today, we recognized the problem and impermissibility of collapsing
the McDonnell Douglas framework. For instance, because an employee’s “job
performance is bound up” with the pretext inquiry, we deferred heavily scrutinizing
that issue until the pretext stage to avoid eliding the stages of the McDonnell Douglas
framework. Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1265 (11th Cir.
2010). In the same vein, we warned against holding that nondiscriminatory reasons
are “sufficient to defeat the prima facie case” because such a rule “cannot be squared
with the structure and purpose of the McDonnell Douglas framework.” Vessels, 408
F.3d at 769.
Other Circuits have identified this problem, too. For example, in Ortiz v.
Norton, 254 F.3d 889, 895 (10th Cir. 2001), the Tenth Circuit explained, “Short-
circuiting the analysis at the prima facie stage frustrates a plaintiff’s ability to
establish that the defendant’s proffered reasons were pretextual and/or that [the
protected status] was the determining factor . . . .” (citation and internal quotation
55
Case: 15-11362 Date Filed: 03/21/2019 Page: 56 of 100
marks omitted); see also Horizon/CMS Healthcare Corp., 220 F.3d at 1193–95 &
1195 n.7 (explaining that applying a rigorous “similarly situated” standard in the
prima facie case “compress[es] the three stages of the McDonnell Douglas analysis”
and “denie[s] [the plaintiff] the opportunity to show that the reasons advanced by
the defendant were pretextual”).
Simply put, in the context of summary judgment, requiring the plaintiff to
make a heightened showing of the “similarly situated” requirement at the prima facie
stage heavily weights down the employer’s side of McDonnell Douglas’s delicate
employee-employer balance. So by applying a searching “similarly situated”
inquiry that considers the employer’s nondiscriminatory reasons at the prima facie
stage, the Majority Opinion severely errs. And its error ensures that at least some
plaintiffs with potentially valid claims of discrimination will never get the
opportunity to show that the employer’s offered reason is a cover for
discrimination.11
11
The Majority Opinion suggests that today it lessens the plaintiff’s burden imposed by
our prior use of the “nearly identical” language “that has pervaded our case law for decades.” Maj.
Op. at 23 n.10. And, at first glance, the “similarly situated in all material respects” standard looks
like a less strict standard than the “nearly identical” standard. To be sure, I fully agree with and
applaud the phrasing of the standard as “similarly situated in all material respects.” But looks can
be deceiving. And here, as I have explained, the Majority Opinion’s decision to conduct the entire
and rigorous comparator analysis at the prima facie stage marks a plaintiff-adverse departure from
prior cases of ours like Walker, which conducted the comparator analysis as a general inquiry at
the prima facie stage and as a more particularized one at the pretext stage. So in reality, the
Majority Opinion’s implementation of the standard makes the plaintiff’s burden significantly
heavier.
56
Case: 15-11362 Date Filed: 03/21/2019 Page: 57 of 100
E.
Three errors the Majority Opinion makes lead it to mistakenly conclude that
the “similarly situated” requirement must be employed rigorously at the prima facie
stage: (1) it emphasizes the employer’s interest over the employee’s interest, rather
than balancing them like McDonnell Douglas’s framework was intended to do; (2)
it misses the point of McDonnell Douglas and its progeny; and (3) it imagines a non-
existent deluge of potentially undeserving victorious employment plaintiffs if the
“similarly situated” standard is not rigorously applied at the prima facie stage. I
discuss each error, in turn, below.
First, the Majority Opinion contends that imposing a rigorous “similarly
situated” standard at the prima facie stage is warranted because it furthers “the twin
aims of the prima facie case—eliminating the most common nondiscriminatory
reasons for an employer’s action and thereby giving rise to an inference of unlawful
discrimination.” Maj. Op. at 26-27 (citation and internal quotation marks omitted).
The Majority Opinion also identifies a third aim of the prima facie standard:
“winnowing out meritless claims” while “leav[ing] employers the necessary
breathing space to make appropriate business judgments.” Maj. Op. at 21, 27.
No doubt all of these things are important. But as the Supreme Court has
recognized, so are the employee’s interests in being able to earn a livelihood without
being discriminated against and in having a chance to prove her case, despite the
57
Case: 15-11362 Date Filed: 03/21/2019 Page: 58 of 100
difference in her access (versus that of her employer) to information about the
employment action. Indeed, “Title VII[] balance[s] between employee rights and
employer prerogatives.” Price Waterhouse, 490 U.S. at 243 (plurality opinion).
And in turn, “[the McDonnell Douglas] balance of burdens is the direct result of
Title VII’s balance of rights.” Id. at 245.
Yet critically, the Majority Opinion and its decision to locate the heightened
“similarly situated” standard in the prima facie case fail to properly account for
employee interests and circumstances. So contrary to what McDonnell Douglas and
its progeny anticipated, by focusing on the employer’s interests, the Majority
Opinion naturally winds up with a system decidedly weighted towards the employer
instead of delicately balanced between the interests of both parties. See supra at
Section I.D. That system is irreconcilable with the robust protection against
workplace discrimination Congress intended Title VII to secure. See, e.g.,
Teamsters v. United States, 431 U.S. 324, 348 (1977) (“The primary purpose of Title
VII was to assure equality of employment opportunities and to eliminate . . .
discriminatory practices . . . .” (internal quotation marks omitted)).
Second, the Majority Opinion clashes with McDonnell Douglas and its
progeny. Perhaps the most obvious illustration of this comes from the Majority
Opinion’s exile of McDonnell Douglas’s “not onerous” prima facie standard—a
58
Case: 15-11362 Date Filed: 03/21/2019 Page: 59 of 100
centerpiece of its delicate balance of employers’ and employees’ rights—to a single
footnote in a misguided effort to render it meaningless. See Maj. Op. at 27 n.15.
The Majority Opinion tries to hide the “not onerous” elephant in the
McDonnell Douglas framework by wishing it away as a mere “descriptor that
doesn’t pertain to the substantive standard that governs the prima facie analysis.”
Id. In the Majority Opinion’s view, then, the plaintiff’s burden to establish a prima
facie case is “not onerous” with respect to something other than her burden to
establish a prima facie case under the substance of the standards governing the prima
facie case.
Wait . . . what?
Of course, whether standards are onerous or not governs whether the
plaintiff’s burden on the prima facie case is onerous or not. It makes no sense to
speak of the plaintiff’s prima facie burden as “not onerous” if the plaintiff must, in
fact, satisfy an onerous substantive standard to meet her prima facie burden.
Nor does the Majority Opinion’s reliance on the quotation from Young, 135
S. Ct. at 1354 (quoting Furnco, 438 U.S. at 576), respond to this problem. The
Majority Opinion opines that McDonnell Douglas’s description of the plaintiff’s
prima facie burden as “not onerous” is “simply an acknowledgement that, by its
nature, a prima facie case is preliminary, and thus is ‘not as burdensome as
succeeding on ‘an ultimate finding of fact as to’ a discriminatory employment
59
Case: 15-11362 Date Filed: 03/21/2019 Page: 60 of 100
action.’” Maj. Op. at 27 n.15 (quoting Young, 135 S. Ct. at 1354 (quoting Furnco,
438 U.S. at 576)).
But the Young quotation comes from Young’s recognition that a plaintiff
presents a prima facie case by “showing actions taken by the employer from which
one can infer, if such actions remain unexplained, that it is more likely than not that
such actions were based on a discriminatory criterion illegal under Title VII,” and
that required showing “is not as burdensome as succeeding on an ultimate finding of
fact as to a discriminatory employment action.” Young, 135 S. Ct. at 1354 (cleaned
up). Neither that statement nor anything in Young’s (or any other Supreme Court
precedent’s) discussion somehow supports the notion that the “not onerous”
language does not apply to the substantive standards governing the prima facie stage
or that the “not onerous” language applies to something other than the substantive
standards at the prima facie stage. They just don’t. 12
And even overlooking these hiccups, dismissing the Supreme Court’s “not
onerous” statement as some supposedly superfluous “descriptor” writes off and
literally relegates to footnote status a central tenet of the McDonnell Douglas
framework. As I have noted, McDonnell Douglas and its progeny demonstrate in
case after case that, in fact, the plaintiff’s “minimal” burden at the prima facie stage
12
In fact, to the contrary, Young’s analysis leaves no doubt that the “not onerous” language
does apply to the substantive standards at the prima facie stage. See infra at Section II.A (pages
33-44).
60
Case: 15-11362 Date Filed: 03/21/2019 Page: 61 of 100
refers to the plaintiff’s “minimal” burden under the substantive standards that govern
the prima facie case. See supra at Section I.C. The Supreme Court has never once,
either implicitly or explicitly, moved one iota away from this standard in the over
forty years since it decided McDonnell Douglas.13 Yet the Majority Opinion treats
McDonnell Douglas as an out-of-Circuit intermediate appellate decision, leaving its
main point unobserved and proceeding as if that case were, at most, potentially
persuasive authority, yet of no actual persuasive value. So much for Justice Scalia’s
reminder that “what is required to establish the McDonnell Douglas prima facie case
is infinitely less than what a directed verdict demands.” St. Mary’s, 509 U.S. at 515.
Forget “infinitely less”; the holding the Majority Opinion announces today is nearly
indistinguishable from what a directed verdict demands.
I cannot agree with this. So long as we remain bound by the Supreme Court
and the “descriptors” that Court gives us in instructing us how to conduct the
McDonnell Douglas analysis, we have no authority to implement standards in a way
that expressly contradicts those “descriptors.”
13
The Majority Opinion suggests that “Supreme Court precedent” after McDonnell
Douglas supports close scrutiny of comparators at the prima facie stage. Maj. Op. at 16 n.9. What
that subsequent precedent is the Majority Opinion does not say. And identifying such a case would
be impossible because at the prima facie stage, the Court has only ever required that the plaintiff
make a generalized showing that she had similar qualifications to the employee that the employer
treated better. See supra at 15-16, 36-37, 40-41. So with apologies to Jerry Maguire, I respectfully
say to the Majority Opinion, “Show us the precedent.” See Jerry Maguire (1996) (Quotes), “Show
me the money!” https://www.imdb.com/title/tt0116695/quotes/qt0389257 (last visited Mar. 19,
2019).
61
Case: 15-11362 Date Filed: 03/21/2019 Page: 62 of 100
Third, the Majority Opinion misconceives the consequences of the plaintiff’s
establishment of a prima facie case. The Majority Opinion states that “[a] successful
prima facie showing . . . entitles the plaintiff to judgment—to victory—if the
employer . . . doesn’t provide a nondiscriminatory explanation for its actions,” Maj.
Op. at 13, intimating that we will be overcome by a flood of undeserving victorious
employment plaintiffs if we do not rigorously apply the “similarly situated” standard
at the prima facie stage. But establishing a prima facie case at summary judgment
is not the golden ticket to automatic recovery that the Majority Opinion indicates.
First, in the real world, if a plaintiff establishes a prima facie case, virtually
no employer completely declines at the second stage of McDonnell Douglas to offer
a nondiscriminatory reason for its actions. Indeed, that is the point of why the
McDonnell Douglas framework is necessary—no employer is likely to admit it took
employment action for discriminatory reasons or sit back and do nothing if so
accused. So it is not surprising that we appear to have no opinion at all in our Circuit
precedent where an employer altogether failed to try to offer a nondiscriminatory
reason for its action. 14
14
The unpublished opinion Smith v. Thomasville Georgia, Case No. 16-16848, ___ F.
App’x ___, 2018 WL 4771672 (11th Cir. 2018), appears to be the closest any case comes, but even
it does not fit the bill. There, one of numerous plaintiffs sued, alleging that he should have been
considered for a position as an assistant chief. Id. at *11. After the plaintiff established his prima
facie case, the defendant offered as a nondiscriminatory reason for not hiring the plaintiff for that
position that the plaintiff had not expressed any interest in it. Id. But, we explained, under
Carmichael v. Birmingham Saw Works, 738 F.2d 1126, 1133–34 (11th Cir. 1984), that does not
count as a “legitimate” reason when a position is filled through informal procedures and the
62
Case: 15-11362 Date Filed: 03/21/2019 Page: 63 of 100
Second, even if that unicorn of an employer who offers no nondiscriminatory
reason for its actions exists somewhere out there, establishing a prima facie case at
summary judgment still does not necessarily automatically end the case. Rather, as
the Supreme Court noted in St. Mary’s, even if the defendant does not meet its
burden of production, “[i]f reasonable minds could differ as to whether a
preponderance of the evidence establishes the facts of a prima facie case, then a
question of fact does remain, which the trier of fact will be called upon to answer.”
Id. at 509–10.
So the plaintiff’s establishment of an unrebutted prima facie case does not
hand her a ticket to skip the trial and go directly to the Clerk’s Office to collect a
judgment; that happens only when the employer offers no nondiscriminatory reason
for its actions and reasonable minds could not disagree about whether the employer
intentionally discriminated against the plaintiff. See Reeves v. Sanderson Plumbing
Prod., Inc., 530 U.S. 133, 146 (2000) (“[I]n St. Mary’s . . . we held that the
factfinder’s rejection of the employer’s legitimate, nondiscriminatory reason for its
action does not compel judgment for the plaintiff.”) (emphasis in original); see also
Walker, 158 F.3d at 1184 (“The prima facie case, standing alone, puts the evidence
in equipoise—although one could reasonably conclude that the plaintiff was not
plaintiff had no notice or opportunity to apply for the position. Id. So even in Smith, it wasn’t that
the employer did not attempt to offer an allegedly nondiscriminatory reason for its conduct; it was
that the court did not accept it.
63
Case: 15-11362 Date Filed: 03/21/2019 Page: 64 of 100
hired because of her sex, one could just as reasonably conclude that the plaintiff was
not hired because the employer did not like the suit she was wearing . . . .”).
Because the Majority Opinion makes these three critical errors in its analysis,
it incorrectly concludes that the “similarly situated” standard must be rigorously
applied during the prima facie stage of the McDonnell Douglas analysis. In doing
so, it disrupts McDonnell Douglas’s delicate balance by playing favorites, elevating
the interests of employers while ignoring the interests of employees. As a result, the
Majority Opinion’s location of the rigorous “similarly situated” application will
leave victims of discrimination remediless at the first stage of the McDonnell
Douglas framework, denying them the chance to show that the employer’s stated
reason for its action may be nothing more than a smokescreen to cover
discriminatory intent. Title VII requires more than that.
II.
The Majority Opinion compounds employee-adverse error in how it applies
the term “material” in the “similarly situated” standard. Section A below explains
the Majority Opinion’s mistake, and Section B shows how a correct application of
the term to all relevant facts in Lewis’s case requires the conclusion that, for
purposes of surviving summary judgment, Lewis sufficiently demonstrated she was
similarly situated to her two chosen comparators, McClure and Heard.
64
Case: 15-11362 Date Filed: 03/21/2019 Page: 65 of 100
A.
“Material,” of course, means “[b]eing both relevant and consequential; crucial
. . . .” Material, The American Heritage Dictionary (5th ed. 2011). So in the context
of the McDonnell Douglas framework, a comparator who is “similarly situated in all
material respects” is a comparator who was similarly situated to the employee in all
ways necessarily crucial to—but only in those ways necessarily crucial to—the
employer’s decision to take action against the employee. And if any material issue
of fact 15 exists concerning whether a nondiscriminatory factor (or reason) was
necessarily crucial to the employer’s employment action, it raises a material issue of
fact concerning whether the employer’s proposed narrower comparator class is
actually “similarly situated” to the plaintiff. As a result, the case must survive
summary judgment.
To see what this means in practice, we must look to what the Supreme Court
has said about comparators and how it has applied the concept. Once again, we
begin with McDonnell Douglas. As I have noted, McDonnell Douglas, a failure-to-
hire case, discussed the comparator inquiry in terms of “comparable seriousness.” It
instructed that, at the pretext stage, the district court should consider “evidence that
white employees involved in acts against [the company] of comparable seriousness
15
Of course, “material issue of fact” is a term of art used in analyzing whether summary
judgment should be granted. To avoid confusion, I use quotation marks whenever I am discussing
“material” from the “similarly situated” standard.
65
Case: 15-11362 Date Filed: 03/21/2019 Page: 66 of 100
to the ‘stall-in’ [the plaintiff participated in before being laid off by the company]
were nevertheless retained or rehired.” Id. at 804. In other words, a person need not
have engaged in a “stall-in” to be a proper comparator in McDonnell Douglas.
Rather, he must have been involved in only acts of “comparable seriousness”—that
is, behavior that, when considered by the employer, would necessarily trigger the
same employment decision as an employee’s participation in a “stall-in” would.
And more recently, in Young v. United Parcel Service, Inc., 135 S. Ct. 1338
(2015), which the Majority Opinion points out holds that “the plaintiff and her
comparators need not be similar in all but the protected ways,” Maj. Op. at 24
(quoting Young, 135 S. Ct. at 1354) (internal quotation marks omitted), the Supreme
Court further illustrated how similar a proper comparator must be. 16 There, the
plaintiffs sued under the Pregnancy Discrimination Act, alleging that UPS had
discriminated against her on the basis of her pregnancy. Id. at 1344.
UPS required drivers like Young to be able to lift up to 70 pounds. Id. But
when Young became pregnant, her doctor told her not to lift more than 20 pounds.
Id. So UPS told Young she could not work while she was under a lifting restriction.
16
Young involved the Pregnancy Discrimination Act (“PDA”), which makes it illegal to
treat pregnant workers less favorably than nonpregnant workers “similar in their ability or inability
to work.” 42 U.S.C. § 2000e(k). In this way, the PDA contains different language than Title VII.
But the Supreme Court nonetheless applies the McDonnell Douglas framework in PDA cases just
as it does in Title VII cases. See Young, 135 S. Ct. at 1353–54. And, as the Majority Opinion
agrees, see Maj. Op. at 24, the “similar in their ability or inability to work” language is the
equivalent of the “similarly situated” requirement in the Title VII context.
66
Case: 15-11362 Date Filed: 03/21/2019 Page: 67 of 100
Id. Young brought suit, arguing that UPS more favorably treated non-pregnant
workers “who were similar in their inability to work.” Id. (internal quotation marks
and alteration omitted). The Supreme Court concluded that, at the prima facie stage,
a genuine dispute existed “as to whether UPS provided more favorable treatment to
at least some employees whose situation cannot reasonably be distinguished from
Young’s,” so it returned Young’s case to the district court for determination of the
pretext inquiry. Id. at 1355 (emphasis added). Among those employees Young held
up as comparators were the following:
1. union members whose collective-bargaining agreement with UPS
promised to provide temporary alternative work assignments if the
employees were “unable to perform their normal work assignments
due to an on-the-job injury”;
2. union members whose collective-bargaining agreement with UPS
provided that UPS would “make a good faith effort to comply . . .
with requests for a reasonable accommodation because of a
permanent disability” under the Americans With Disabilities Act;
3. union members whose collective-bargaining agreement stated that
UPS would give “inside” jobs to drivers who had lost their
Department of Transportation (“DOT”) certifications because of a
failed medical exam, a lost driver’s license, or involvement in a
motor vehicle accident;
4. employees who received accommodations, such as a 10-pound
lifting limitation) after suffering varied disabilities, such as a foot
injury or an arm injury, on the job;
5. employees who received accommodations after injury, where the
record was unclear as whether the injury occurred on or off the job,
such as a recurring knee injury, an ankle injury, a stroke, or a leg
injury;
67
Case: 15-11362 Date Filed: 03/21/2019 Page: 68 of 100
6. employees who received “inside” jobs after losing their DOT
certifications; and
7. employees who received accommodations even though they
incurred their disabilities, such as an ankle injury or cancer, off the
job.
Id. at 1346–47.
Young highlights the problems with the Majority Opinion’s analysis. First,
Young applied a generalized comparator standard at the prima facie stage of the
McDonnell Douglas analysis. To be sure, the Court’s opinion did not reveal
precisely which, if not all, of the widely varied proposed comparators’ situations it
deemed “[]not reasonably . . . distinguish[able] from Young’s.” Id. at 1346–47. But
it nonetheless allowed all of them to proceed to the pretext inquiry. And in doing
so, the Court found genuine issues of material fact about whether all of these other
employees were proper comparators at the generalized prima facie stage. That
means it could not conclude that the differences between the proposed comparators
and Young were necessarily “material” for purposes of the prima facie “similarly
situated” inquiry.
So to really understand what the Supreme Court has considered “material” for
purposes of the prima facie comparator inquiry, we must look more closely at who
the Supreme Court concluded could not necessarily be ruled out as comparators.
68
Case: 15-11362 Date Filed: 03/21/2019 Page: 69 of 100
And when we do that, we find that the Court cast a pretty wide net in performing the
comparator inquiry at the prima facie stage.
For example, at this prima facie phase of the inquiry, among others, the Court
found the following groups of people appropriate comparators for a pregnant woman
who temporarily could not lift more than 20 pounds: (1) non-pregnant employees
who could not drive because they literally lacked the qualifications (a license or a
DOT certification); (2) non-pregnant employees who could not drive because they
had permanent disabilities that made them physically unable to drive; and (3) non-
pregnant employees who permanently could not lift 70 pounds. Young, 135 S. Ct.
at 1346–47. That’s a broad variety of fish caught in the comparator net. And it
contrasts significantly with the Majority Opinion’s view of the scope of the
“similarly situated” inquiry at the prima facie stage.
Second, although at the prima facie stage the Supreme Court found a material
issue of fact concerning whether all of the proposed comparators were sufficiently
similarly situated, it nonetheless sent the case to the district court to determine at the
pretext phase whether a material question of fact existed regarding UPS’s reason for
treating pregnant women differently—that is, UPS’s reason why it did not view
Young’s proposed comparators as “similarly situated” to her. So based on this
ruling, Young received the opportunity to present evidence and argument showing
that UPS’s more narrowly proposed comparators class was pretextual. That means
69
Case: 15-11362 Date Filed: 03/21/2019 Page: 70 of 100
that the Supreme Court recognized that employees as differently situated from
Young as non-pregnant drivers who lost their DOT certifications or licenses and
permanently injured non-pregnant drivers could conceivably be appropriate
comparators for the temporarily pregnant Young—even at the pretext phase of the
McDonnell Douglas framework.
The Majority Opinion, though it mentions McDonnell Douglas and Young
more than once, dismisses these cases’ lessons about proper comparators. And it
doesn’t even try to explain how its interpretation of what the “similarly situated”
requirement demands is consistent with the comparators Young and McDonnell
Douglas actually allowed. Perhaps that is because it is not. Instead, the Majority
Opinion attempts to distinguish Young in two ways: (1) on the basis of the language
of the “similarly situated” standard that appears in the Pregnancy Discrimination Act
(“PDA”), which governed in Young, and (2) on the basis that the “sheer numbers”
of non-pregnant employees UPS accommodated were “overwhelming,” Maj. Op. at
26 n.14, while the Department treated only Heard and McClure differently than
Lewis. Id. Neither succeeds.
First, contrary to the Majority Opinion’s wishful thinking, the language of the
PDA’s “similarly situated” requirement does not render Young’s lessons concerning
the “similarly situated” requirement inapplicable in the gender- and race-
discrimination context. True, the PDA phrases its “similarly situated” requirement
70
Case: 15-11362 Date Filed: 03/21/2019 Page: 71 of 100
differently than we state ours today, since under the PDA, employers must treat
“women affected by pregnancy . . . the same for all employment-related purposes . .
. as other persons not so affected but similar in their ability or inability to work.” 42
U.S.C. § 2000e(k). But the PDA’s focus on the plaintiff and her comparators’
inability to work is precisely what makes Young applicable to Lewis’s case. Indeed,
Lewis’s claim is that she was “similar [to Heard and McClure] in [her] ability or
inability to work” when the Department involuntarily put her, McClure, and Heard
on administrative leave for being physically unfit for duty. So Young is instructive
on this key point in Lewis’s case. And even the Majority Opinion concedes Young’s
relevance in the context of evaluating comparators for purposes of determining
whether they are “similar in their ability or inability to work.” See Maj. Op. at 26
n.14, 24.
As to the Majority Opinion’s second basis for attempting to distinguish
Young, it fares no better than the first. The Majority Opinion contends that Young is
not instructive because it involved “overwhelming” “numbers” of comparators,
whereas Lewis identifies only two comparators.17 So by the Majority Opinion’s
reasoning, an employer can discriminate with impunity, as long as the employer is
17
The Majority Opinion also incorrectly seems to suggest that Young involved only comparators
who could not do their jobs because they could not lift boxes. Maj. Op. at 26 n.14. In fact, though, as I
have noted, the Supreme Court also accepted as potential comparators individuals could not work because
they had been stripped of their DOT certifications.
71
Case: 15-11362 Date Filed: 03/21/2019 Page: 72 of 100
careful to treat fewer than “overwhelming” “numbers” of similarly situated
comparators better than the plaintiff.
Clearly, that is unacceptable under the law. And the Majority Opinion’s
efforts to distinguish Young in a footnote, see Maj. Op. at 26 n.14, fail miserably.
Because the Majority Opinion does not engage with McDonnell Douglas and
Young’s actual applications of the comparator requirement, we are left to discern for
ourselves the guiding principles concerning the meaning of “material” that we can
take from the analyses of McDonnell Douglas and Young.
We know from McDonnell Douglas’s “comparable seriousness” requirement
that appropriate comparators include individuals with circumstances or who engaged
in conduct that would necessarily trigger the same employment decision by the
employer—at least until and unless, at the pretext stage, the employer can
demonstrate a nondiscriminatory reason why such individuals are not appropriate
comparators, for which the plaintiff does not raise a material issue of fact.
And Young goes even further. It suggests at the prima facie stage that in a
case where a plaintiff seeks a job accommodation, employees whose circumstances
cause them to be unable to perform essential aspects of the same job that the plaintiff
holds may be appropriate comparators for a plaintiff who cannot perform an essential
part of her job—even if the essential function that the employee cannot do or the
reason the plaintiff cannot perform an essential function is different than that of the
72
Case: 15-11362 Date Filed: 03/21/2019 Page: 73 of 100
comparators. Of course, at the pretext stage, some or all of these proposed
comparators may prove not to be appropriate comparators. But that depends on
whether the plaintiff can point to a material issue of fact concerning whether the
employer’s reason for treating the proposed comparators differently than the
plaintiff—raised at McDonnell Douglas’s second stage—is pretextual.
Despite the guidance McDonnell Douglas and Young offer, they cannot
provide complete guidance to resolve every case. Indeed, “[t]he facts necessarily
will vary in Title VII cases,” McDonnell Douglas, 411 U.S. at 802 n.13, so “case-
by-case” analysis will be required, “in the context of individual circumstances,” Maj.
Op. at 24. And unfortunately, neither I nor anyone else I’m aware of can articulate
a checklist that will necessarily apply in every single case. Even the Supreme Court
itself has recognized this fact. See Swierkiewicz v. Sorema N. A., 534 U.S. 506, 506–
07 (2002) (“The precise requirements of the prima facie case can vary with the
context and were ‘never intended to be rigid, mechanized, or ritualistic.’”) (quoting
Furnco, 438 U.S. at 577); see also Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S.
379, 387–88 (2008) (“The question whether evidence of discrimination by other
supervisors is relevant in an individual ADEA case is fact based and depends on
many factors, including how closely related the evidence is to the plaintiff’s
circumstances and theory of the case.”).
73
Case: 15-11362 Date Filed: 03/21/2019 Page: 74 of 100
Nevertheless, besides the considerations we can draw from the McDonnell
Douglas and Young analyses, factors such as whether the plaintiff and the proposed
comparators had the same supervisor or a similar employment or disciplinary
history, and whether the proposed comparator and the plaintiff had fairly comparable
positions may also be relevant, even at the prima facie stage. For example, an
employee whose job it is to drive and an employee whose job does not require any
driving may be subject to materially different consequences when it comes to the
significance to their employment status of an off-duty car accident, and if that is the
case, the driver would obviously know that. Such employees are not “similarly
situated” at the prima facie stage.
But the biggest principle we take from Supreme Court precedent on the level
of specificity required in applying the “similarly situated” standard is that the
standard applies in a “generalized,” “not onerous,” and “minimal” way at the prima
facie stage and in a more rigorous way at the pretext stage. So at the second phase
of the McDonnell Douglas framework, an employer’s stated reasons for its action
can fairly and severely narrow—and even completely eliminate—the field of
“similarly situated” comparators. And if they do, that ends the action, unless the
plaintiff can raise a material issue of fact concerning whether the employer’s stated
reason was pretextual.
74
Case: 15-11362 Date Filed: 03/21/2019 Page: 75 of 100
Instead of following this principle, the Majority Opinion requires courts to
perform the heightened “similarly situated” inquiry at the prima facie stage, and it
engages in a hyper-detailed application of the standard at that juncture. 18 So
legitimate questions about how detailed similarities between a plaintiff and her
comparators must be before losing meaning get disposed of without the employer’s
reasons ever being subjected to pretext testing.
If the Majority Opinion’s analysis were correct, in Young, at the prima facie
stage, the Supreme Court would have upheld summary judgment to UPS for all the
reasons the Fourth Circuit noted: some of Young’s proposed comparators were
“‘disabled under the ADA’” whereas Young was not; other comparators were
“‘injured on the job,’” whereas she was not. Young, 135 S. Ct. at 1348 (quoting
Young v. United Parcel Serv., Inc., 707 F.3d 437, 450 (4th Cir. 2013)). But, of
course, that did not happen. Rather, the Supreme Court held that the Fourth Circuit
erred and that Young should be allowed to proceed to the pretext stage to present the
18
The Majority Opinion complains that I “offer no real guidance” as to how the “similarly
situated” standard is “operationalize[d].” Maj. Op. at 28 n.16. That is simply not accurate. See
supra at 40-43. Nor is the Majority Opinion’s own explanation of how it “operationalize[s]” its
standard is any more precise than mine. See, e.g., Maj. Op. at 24 (admitting that the standard “will
have to be worked out on a case-by-case basis, in the context of individual circumstances”), 25
(stating that a “similarly situated” comparator will “[o]rdinarily” meet four qualities, including one
that retreats further from creating a rule by stating a second time that a comparator “will ordinarily
(though not invariably) have been under the jurisdiction of the same supervisor as the plaintiff”).
And, as I have noted, unlike the “similarly situated” standard this opinion describes, the Majority
Opinion entirely fails to explain how its “similarly situated” standard accounts for comparators
accepted under McDonnell Douglas’s and Young’s analyses.
75
Case: 15-11362 Date Filed: 03/21/2019 Page: 76 of 100
whole menu of comparators enumerated above. Id. at 1355-56. It is simply
impossible to square the Majority Opinion with how the Supreme Court has
instructed lower courts to effectuate McDonnell Douglas.
The Majority Opinion makes this error because it allows the matching of
characteristics of comparators to become an exercise for its own sake. We must
always remember our purpose in identifying “similarly situated” comparators. At
the prima facie stage, we match characteristics to determine only whether the
plaintiff and her comparators are similar enough that we can confidently rule out
discrimination as a basis for the employer’s action—without hearing the employer’s
reason for its action and without allowing the plaintiff an opportunity to cast doubt
upon that articulated reason. And at the pretext stage, we evaluate characteristics to
ascertain only whether the plaintiff and her comparators are similar enough that we
cannot confidently rule out discrimination as a basis for the employer’s action—
even considering the plaintiff’s efforts to show pretext. If we are any more
demanding than that, we fail to restrict our comparison to “material” similarities and
violate the purpose of Title VII and the McDonnell Douglas framework.
B.
To demonstrate how the “similarly situated” standard should be applied under
McDonnell Douglas and its progeny, I apply it in this section to Lewis’s facts.
Before I can do that, though, I must take a moment to identify some important facts
76
Case: 15-11362 Date Filed: 03/21/2019 Page: 77 of 100
the Majority Opinion leaves out and to correct some inferences the Majority Opinion
mistakenly draws from the facts it does mention. For these reasons, Section 1 sets
forth the relevant facts, and Section 2 applies the correct “similarly situated”
standard to them in conducting the McDonnell Douglas analysis.
1.
a. The Facts Leading to Lewis’s Termination
Lewis began working at the Union City Police Department as a police officer
in 2001. In 2008, the Department promoted her to the position of detective.
The following year, on January 29, 2009, Lewis suffered a heart attack.
Lewis’s cardiologist described her heart attack as “relatively small because it hadn’t
affected her heart function,” and she had no blockage. After taking the month of
February 2009 off, Lewis returned to full, active duty on March 2, 2009.
When she started back, her lieutenant, Jerry Hester, told her that detectives
did not respond directly to calls but that they waited to be called out specifically.
Hester assigned “children and women crimes” to the “lady” detectives and gave “the
more aggressive stuff” to himself or Sergeant Cliff McClure.
In June 2010, the Department implemented a policy requiring all officers in a
position to make an arrest or supervise an arrestee, which included detectives, to
carry a Taser. To become certified to carry a Taser, the Department required, among
other things, for officers to receive a five-second Taser shock.
77
Case: 15-11362 Date Filed: 03/21/2019 Page: 78 of 100
Similarly, pepper-spray training, which was necessary for pepper-spray
certification, involved exposure to pepper spray. Though Lewis had been exposed
to pepper spray when she was at the police academy, she was not certified in its use.
To remedy this circumstance, on June 14, 2010, the Department scheduled
Lewis for pepper-spray training, including pepper-spray exposure, three days later,
on June 17, 2010.
The very next day, June 15, 2010, Lewis’s doctor gave her a letter that
“recommend[ed] that a Taser gun or [pepper] spray [not] be used on or near [Lewis]
secondary to her chronic conditions [including a heart condition].” The letter further
requested that the Department “[p]lease take [the doctor’s recommendation] into
consideration when making any decisions about occupational training.” Lewis
provided the Department with that letter the following day, June 16, 2010.
And the day after that, Thursday, June 17, 2010, Assistant Chief of Police Lee
Brown issued a letter to Lewis “plac[ing] [her] on administrative leave without
compensation until such time your physician releases you to return to full and active
duty.” The letter further advised, “You need to contact Tracie McCord in Human
Resources to complete the necessary FMLA [Family Medical Leave Act] paperwork
concerning your absence. You presently have accrued leave that you may utilize
until the time such leave is expended.”
78
Case: 15-11362 Date Filed: 03/21/2019 Page: 79 of 100
Lewis contacted McCord’s office the next Monday, June 21, 2010. On June
22, McCord’s assistant called Lewis back and scheduled an appointment for Lewis
and McCord to meet on Wednesday, June 23, 2010.
At the June 23 meeting, McCord gave Lewis FMLA paperwork and told
Lewis to ask her doctor to call Brown to see whether there was any way that Lewis
could be safely Tased.
That same day, Lewis called her doctor and left a message seeking to have her
doctor schedule a time to call Brown and to fill out the FMLA forms. Lewis’s
doctor’s office returned the call and made a July 7 appointment for Lewis to bring
the FMLA paperwork.
In the meantime, on July 1, 2010, Lewis sent Police Chief Charles Odom a
letter asking that he permit her to “resume [her] duties as [she] had been doing
without limitation until [she] was recently placed on administrative leave.” She
clarified that she was “only asking for an accommodation on the [T]aser and [pepper-
spray] training until everything [wa]s cleared up with [her] doctor.” Later that day,
Brown responded on behalf of himself and Odom. He stated, “[U]ntil your doctor
releases you for duty, your request is denied.”
The following day, Friday, July 2, 2010, Lewis emailed Brown to advise him
that her doctor was out on vacation until Wednesday, July 7, the date upon which
she had already scheduled an appointment with the doctor and would provide her
79
Case: 15-11362 Date Filed: 03/21/2019 Page: 80 of 100
with the FMLA paperwork. Lewis also requested that Brown give her his cellphone
number so she could put her doctor directly in touch with Brown.
The next communication in the record occurred after the July 4 holiday, on
Tuesday, July 6, 2010. In that email from Lewis to Brown, Lewis sent a
“reminder/follow up” to her Friday email to Brown, reminding Brown that her
doctor was on vacation until Wednesday and that she had an appointment at noon
on Wednesday, so she could give the doctor the FMLA paperwork. Lewis again
requested Brown’s cellphone number to provide to her physician so the doctor could
call him directly. Later that day, Brown instructed Lewis to have her doctor call the
office number to schedule a time to “have a conversation about the situation.”
The following day, July 7, 2010, Lewis went to see her doctor and provided
the doctor with the FMLA paperwork to fill out. Although the doctor did not prepare
the paperwork before Lewis left, the doctor advised Lewis that she was going to
contact the Police Department. So Lewis called McCord and left her a message that
the doctor would be calling that day. But the doctor did not call, and no one told
Lewis.
Instead, the next morning, at 11:15 a.m., Captain Mike Jones and Lieutenant
Ken Hester visited Lewis and served her with a letter from Brown immediately
terminating her employment. The letter explained,
As of Thursday, July 8, 2010, at 1000 hours, you
have not provided the City of Union City with any
80
Case: 15-11362 Date Filed: 03/21/2019 Page: 81 of 100
paperwork requesting Family and Medical Leave. You
have not contacted me or any other City official
concerning your status in relation to returning to active
duty. You are absent without leave.
Union City Personnel Policy Chapter 6, Section 1,
c, (Leaves of Absence) states, “Any unapproved leave of
absence will be cause for dismissal.” Because you have
exhausted all of your accrued leave and have failed to
complete and turn in the necessary paperwork to be placed
on Family and Medical Leave, your absence is unapproved
and you are terminated effective immediately.
Nobody told Lewis before her termination that if she did not turn in her FMLA
paperwork by July 7, any adverse action would befall her.
After receiving the termination letter, Lewis called her doctor to ask whether
the doctor had called the Police Department, as the two had agreed the doctor would.
The doctor’s assistant said that the doctor intended to call the Department on her
lunch hour that day. So Lewis emphasized the importance, explaining that she had
been fired from her position.
Lewis’s doctor then called Odom that same day. Odom told the doctor “he
was concerned about [Lewis’s] being released back to full duty and still being under
[the doctor’s] care.” The doctor responded that she “release[s] people back to work
duty and still care[s] [for] them in the office.” Odom “also wondered if . . . Lewis
influenced [the doctor’s] decision to recommend that [Lewis] not use the Taser or
pepper spray.” The doctor replied that “pepper spray was not as much [of] a
81
Case: 15-11362 Date Filed: 03/21/2019 Page: 82 of 100
concern” as “be[ing]” Tased. As the doctor explained the problem, the doctor “did
not know how the ‘Taser’ would affect Lewis.”
In the course of the litigation in this case, Odom later conceded in his
deposition testimony that if Lewis had brought in a document from her doctor stating
that she could be exposed to pepper spray, “she probably would have been put back
to work . . . .” He further admitted that during the July 8 conversation between
Brown and Lewis’s doctor, in light of the doctor’s expressed withdrawal of the
pepper-spray concerns, nothing precluded Brown from asking the doctor for a note
stating that Lewis could proceed with pepper-spray training. Yet Brown did not do
so. Odom explained this fact by noting that the conversation did not occur until after
Lewis’s termination earlier that same day.
Also on July 8, 2010, Lewis notified Odom of her intent to appeal her
termination. The City Manager affirmed Lewis’s termination on July 23, 2010.
b. The Proposed Comparators
As comparators, Lewis proposed Walker Heard, a white male who served as
a master patrol officer, and Cliff McClure, a white male who worked as a sergeant
in the Criminal Investigations Division.
Heard was placed on administrative leave after failing a physical-agility test,
since he was not fit for duty. He was given 90 days of administrative leave within
which to work with medical professionals and pass the fitness-for-duty test. But
82
Case: 15-11362 Date Filed: 03/21/2019 Page: 83 of 100
instead of Heard passing the test, near the end of the 90-day period, Heard’s attorney
sent a letter to the Department stating that Heard had a disability and requesting that
the fitness-for-duty test be waived.
Although Odom did not waive the test, he also did not terminate Heard’s
employment at the end of the 90-day administrative-leave period. Rather, Odom
offered Heard the chance to transfer to a dispatcher position, which did not require
him to pass the fitness-for-duty test that patrol officers had to take. Odom held the
dispatcher position open for Heard for eleven months before demanding a decision
and finally terminating him when he declined the transfer. In all, Heard was on
administrative leave for 449 days before he was finally fired.
The Department placed McClure on administrative leave because he failed a
balance test, so he was rendered unfit for duty. McClure received up to a 90-day
period of administrative leave within which to work with medical professionals to
remedy his balance test and requalify as fit for duty. Before the 90-day period
expired, McClure successfully completed his physical-fitness test and was deemed
fit to return to duty.
c. The Policies the Department Invoked
The Department relies on portions of two policies in this case. I summarize
each in turn.
i. Union City Employee Handbook: Personnel Policy Chapter 6 (Leaves
of Absence)
83
Case: 15-11362 Date Filed: 03/21/2019 Page: 84 of 100
Odom testified that the Department placed Lewis on leave under the Union
City Employee Handbook’s Personnel Policy on leaves of absence, which is found
at Chapter 6.
Section 1.A. of that policy provides, in relevant part, “A regular full-time
employee may be granted leave of absence without pay at the discretion of the
Department Director and the City Manager. An employee may also be placed on
leave of absence status without application.” As relevant here, § 1.A. imposes a 180-
day limit on any such leave. Finally, if an employee is placed on administrative
leave without pay, she may choose to take any portion of it as paid leave to the extent
she has paid leave available. But whether or not she chooses to take any of her
unpaid administrative leave as available paid leave is “up to the individual
employee,” since the option to use paid leave during unpaid administrative leave is
for the benefit of the employee. As a result, according to the City Manager, who
was responsible for reviewing and revising the Union City Employee Handbook,
whether the employee opts to use paid leave for any portion of her unpaid
administrative leave is “irrelevant” to and does not affect the length of the
administrative-leave period.
Turning to § 7 of the City’s leave-of-absence policy, that covers FMLA
absences. That section has a subsection called “Notification and Reporting
Requirements,” § 7.F. But absent from that section is any deadline for the
84
Case: 15-11362 Date Filed: 03/21/2019 Page: 85 of 100
submission of FMLA paperwork where, as in this case, the employee is put on
administrative leave by the City and told to subsequently “complete the necessary
FMLA paperwork concerning [the] absence” (as opposed to scheduling FMLA leave
herself). Section 7.B. also authorizes “[a]n eligible employee [to] apply available
accrued leave to all approved absences where all or a portion of their normal base
salary would otherwise be unpaid.”
The last part of Chapter 6 that is pertinent is § 1.C., which the Department
relied on in the letter terminating Lewis’s employment. That provision states, “Any
unapproved leave of absence will be cause for dismissal.”
ii. The Union City Police Department’s Physical-Fitness Policy
In January 2013, after Lewis left but before Heard and McClure were placed
on administrative leave, the Department created a policy requiring all sworn officers
to pass an annual physical-fitness test. 19 Under the policy, any officer who did not
pass the annual fitness test was sent to physicians for a less strenuous fitness-for-
duty test. If the officer failed that test, the officer was placed on administrative leave
without pay for 90 days. The officer then had that 90-day period to improve his or
her health to the point where the officer could pass the fitness-for-duty test. At the
end of the 90-day period, physicians administered a second fitness-for-duty test. If
19
No copy of the policy appears in the record, so the description of it in this dissent is taken
from Odom’s articulation of the policy.
85
Case: 15-11362 Date Filed: 03/21/2019 Page: 86 of 100
the officer passed, the officer was reinstated. But if the officer failed, the officer was
“deemed unfit for duty and [was] subject to termination.”
The “governing force” for the Department’s authority to involuntarily place
officers on administrative leave came from the Union City Personnel Policy
Handbook, which governed all City employees. The Handbook “set the baseline”
for the Department. As a result, the Department generally could not exceed its
proscriptions, since the Handbook and the Department’s policies are “[v]ery similar”
to the relationship between “State laws” and “County laws.”
The Department’s issuance of the physical-fitness policy’s 90-day
administrative-leave provision and the Department’s placing of Lewis on
administrative leave both involved the Department’s exercise of its authority to
involuntarily put an officer on administrative leave for being physically unfit for
duty. Viewed in the light most favorable to Lewis, the record yields the reasonable
inference that the Department’s authority to involuntarily place Lewis on
administrative leave for being physically unfit for duty and the Department’s
decision to put physically unfit officers involuntarily on 90 days of administrative
leave were exercises of the same power: the authority referenced in Chapter 6, §
1.A., in the Union City Personnel Policy Handbook for the Department to put an
employee involuntarily on administrative leave for up to 180 days. In fact, both
86
Case: 15-11362 Date Filed: 03/21/2019 Page: 87 of 100
exercises were “governed” by the Union City Personnel Policy Handbook since the
Handbook put a 180-day restrictor cap on the Department’s discretion.
This is unsurprising since both cases involve the same action—placing an
officer involuntarily on administrative leave—for the same reason—being
physically unfit for duty. Plus, both exercises fall within the policy’s boundaries
requiring fewer than 180 days’ leave. Nor did the Department put the physical-
fitness policy or any other evidence suggesting that anything other than the
discretion referenced in the Personnel Policy Handbook was the source of its power
to put officers involuntarily on administrative leave for 90 days for being physically
unfit for duty into the summary judgment record. Rather, the record contains only
one source of authority for the Department to put someone involuntarily on
administrative leave: Chapter 6 of the Personnel Policy Handbook.20
Odom attested that both Heard and McClure were placed on administrative
leave pursuant to the 90-day administrative-leave portion of the physical-fitness
20
The Majority Opinion says it “simply can’t indulge” this inference, Maj. Op. at 30 n.18,
even though it is based on the evidence of record and does nothing more than view the facts in the
light most favorable to the non-moving party—here, Lewis. But elementary principles of summary
judgment say otherwise. On a motion for summary judgment, “courts are required to view the
facts and draw reasonable inferences in the light most favorable to the party opposing the summary
judgment motion.” Scott v. Harris, 550 U.S. 372, 378 (2007) (citation, quotation marks, and
alterations omitted). And for the reasons I have identified, this is certainly a reasonable inference.
Nor has the Majority Opinion offered any reason why this is not a reasonable inference from the
record.
87
Case: 15-11362 Date Filed: 03/21/2019 Page: 88 of 100
policy. 21 While McClure was able to pass the second fitness-for-duty test and return
to work, Heard was not. But as explained in Section II.B.1.b above, Heard’s
employment was not terminated at the end of the 90-day period. Instead, he
remained on administrative leave for a total of 449 days before Odom ended his
employment.
2.
Lewis satisfied her comparator burden at both the prima facie stage and the
pretext stage, allowing her to survive summary judgment. As I explain below,
material questions of fact exist about whether the Department’s stated
nondiscriminatory reasons were necessarily crucial to the Department’s dissimilar
treatment of Lewis and her comparators.
Significantly, Heard and McClure’s situations cannot “reasonably be
distinguished” from Lewis’s. Young, 135 S. Ct. at 1355; see also Caraballo-
Caraballo, 892 F.3d at 60 (stating that in the “in all relevant respects” standard,
“reasonableness is the touchstone” and “[t]he court must decide whether a prudent
person, looking objectively at the plaintiff and her comparator would think them
21
The Majority Opinion suggests that Heard and McClure were not proper comparators
because the Department did not adopt the physical-fitness policy until two years after it terminated
Lewis. Maj. Op. at 29. But again, in viewing the facts in the light most favorable to Lewis, we
must accept for purposes of summary judgment that the Department’s decision to put Lewis on
administrative leave for being physically unfit for duty and its issuance of the administrative-leave
portion of the physical-fitness policy were exercises of the same power. And the Majority Opinion
does not cite any authority that rules out comparators simply because the employer dealt with them
after the plaintiff. Perhaps that’s because there is no such authority.
88
Case: 15-11362 Date Filed: 03/21/2019 Page: 89 of 100
roughly equivalent”) (internal citations and quotation marks omitted). Lewis and
her comparators had similar job responsibilities, had similar job titles, had similar
seniority, and were supervised by the same person, Odom. And most important, the
Department put all three on involuntary administrative leave for being physically
unfit for duty. Yet Lewis presented evidence that the Department gave Lewis just
21 days of administrative leave while affording McClure and Heard 90 and 449 days
of administrative leave, respectively.
This is plenty to meet Lewis’s “generalized” and “minimal” prima facie
burden. To put it in McDonnell Douglas’s “comparable seriousness” terms, see 411
U.S. 804, Lewis’s physical condition triggered the same employment decision by
the Department as did McClure’s and Heard’s—the Department placed all three
involuntarily on administrative leave because they were not fit for duty and indicated
that they could not return to duty until they were fit to do so.
And if we compare Lewis’s situation to that of Young in Young, Lewis bears
a closer resemblance to her proposed comparators than Young did to her accepted
comparators. As I have noted, in Lewis’s case, she and her comparators all could
not do what the Department deemed an essential aspect of their work for the same
reason—they were all physically unfit for duty. But in Young, where the plaintiff
could not deliver packages because she temporarily had a physical restriction
concerning how much weight she could lift, some of her approved comparators
89
Case: 15-11362 Date Filed: 03/21/2019 Page: 90 of 100
could not work as drivers for reasons unrelated to their health—they had been
stripped of their licenses or DOT certifications.
In light of Lewis’s similarities to her comparators, at the prima facie stage, we
cannot confidently rule out discrimination as a basis for the employer’s action,
without hearing the employer’s reason for its action and without allowing the
plaintiff an opportunity to cast doubt upon that articulated reason.
Since these facts establish a prima facie case for Lewis, we turn to the
Department’s nondiscriminatory reasons for firing Lewis after giving her only 21
days of administrative leave. The Department has offered four reasons for its action,
and Lewis asserts each is pretextual. Before I address each reason in turn, I note a
few ways in which a plaintiff may create a material issue of fact concerning pretext.
Among others, a plaintiff can survive the pretext stage by casting sufficient
doubt on the defendant’s proffered nondiscriminatory reasons to permit a reasonable
factfinder to conclude that the employer’s proffered “reasons were not what actually
motivated its conduct.” Cooper-Houston v. Southern Ry. Co., 37 F.3d 603, 605 (11th
Cir. 1994) (citation omitted). The plaintiff can also demonstrate pretext if she shows
the employer’s articulated reason is false and that the false reason hid discrimination.
See St. Mary’s, 509 U.S. at 515; Hurlbert v. St. Mary’s Health Care Sys., Inc., 439
F.3d 1286, 1298 (11th Cir. 2006) (citing as evidence of pretext “an employer’s
failure to articulate clearly and consistently the reason for an employee’s
90
Case: 15-11362 Date Filed: 03/21/2019 Page: 91 of 100
discharge”). And the plaintiff can show pretext if she establishes that the employer
has failed to clearly articulate and follow its formal policies. See Hinson v. Clinch
Cty., Ga. Bd. of Educ., 231 F.3d 821, 831 (11th Cir. 2000) (finding issue of fact on
pretext reversing because employer failed to raise a concern directly with the
employee). All of these ways of demonstrating pretext come into play in this case.
First, the Department asserts that it provided the comparators with more than
21 days’ administrative leave under the Department’s physical-fitness policy, which
did not exist when Lewis worked there. And to be sure, the physical-fitness policy
had not yet been issued when Lewis was fired.
But viewing the facts in the light most favorable to Lewis, as we must, the
physical-fitness policy is nothing more than a statement of how the Department
exercises its authority as identified in Chapter 6, section 1.A. of the City Employee
Handbook, to place an officer on administrative leave when that officer is not
physically fit to perform her duties. So the record shows that Odom had just two
opportunities to use the discretion afforded to him by Chapter 6, section 1.A. of the
City Employee Handbook to promulgate administrative-leave policies for officers
who were physically incapable of policing. He couldn’t have behaved more
differently.
First, when Odom had Lewis, an African-American woman before him, he, at
best, gave her 21 days of administrative leave before firing her. But when he
91
Case: 15-11362 Date Filed: 03/21/2019 Page: 92 of 100
exercised his discretion to grant leave without an African-American woman in front
of him, he provided officers with 90 days of administrative leave—more than four
times as much as he gave Lewis.
Second, when Odom had Lewis, an African-American woman to consider, he
gave no warning before firing her after 21 days of administrative leave. But under
the policy Odom promulgated after Lewis’s departure to apply generally to all
officers who were physically unfit for duty, he provided an express warning that
their leave would expire in 90 days if they did not remedy their fitness-for-duty
deficiency.
And third, in Heard’s case, Odom skated right by Chapter 6, § 1.A’s 180-day
cap and gave Heard 449 days of unpaid administrative leave—21 times the number
of days he gave Lewis and 269 days more than the City’s administrative-leave policy
allowed (and 359 days more than the Department’s physical-fitness policy
permitted). A reasonable jury could find that the Department did not consistently
exercise its authority in placing physically unfit officers on administrative leave and
that the Department did not comply with its own policies. A reasonable jury could
further conclude that these inconsistencies reveal discriminatory motivation.
The Department offers as a second nondiscriminatory reason for its actions
that Lewis’s condition was permanent, while Heard’s and McClure’s were not
necessarily so. But this reason also has three holes in it.
92
Case: 15-11362 Date Filed: 03/21/2019 Page: 93 of 100
First, as I have noted, in Young, the Supreme Court concluded that temporarily
disabled employees could be proper comparators for permanently disabled
employees. Young, 135 S. Ct. at 1346–47. We have no authority to demand more
similarity than the Supreme Court. And the Majority Opinion does not say why the
permanently disabled were acceptable comparators to the temporary disabled in
Young, yet they are not here.
Second, even if we could set aside Young, in the light most favorable to Lewis,
the record shows the Department itself did not appear to believe that Lewis’s lack of
physical fitness for duty was permanent. For example, in the June 17, 2010, letter
putting Lewis on administrative leave, Brown stated that Lewis was on such leave
“until such time your physician releases you to return to full and active duty.” And
Lewis also advised the Department that she did not expect her lack of physical fitness
to be permanent, asking the Department on July 1, 2010, for “an accommodation . .
. until everything is cleared up with my doctor.” Even in the letter firing Lewis, the
Department said it placed Lewis on administrative leave “until [her] physician
released [her] to return to full and active duty.”
Plus, the Department had a history of working with others with heart
conditions to allow them to receive a milder version of a Tasing than officers without
93
Case: 15-11362 Date Filed: 03/21/2019 Page: 94 of 100
heart conditions received.22 So the Department had firsthand knowledge and
experience that a heart condition did not necessarily mean that Lewis would never
be fit for duty. And Lewis was in daily contact with the Department about the
possibility of having her doctor see if something could be worked out with Brown
to resolve the Tasing and pepper spray issues. 23 In the light most favorable to Lewis,
these facts demonstrate that both parties viewed Lewis’s return to fitness for duty to
be a possibility. 24 So a reasonable jury could conclude that the alleged permanence
22
Specifically, rather than shooting the Taser darts into their backs from ten to fourteen
feet away, the Department laid the officers on the floor, clipped alligator clips to one of each
officer’s legs, and administered the shock that way.
23
The Majority Opinion argues that Lewis’s doctor “never cleared her for Taser training.”
Maj. Op. at 31 n.19. True. But that tells only part of the story. During Odom’s discussion with
Lewis’s doctor, after Lewis had been terminated—the only time anyone from the Department ever
spoke with Lewis’s doctor, despite Lewis’s efforts to arrange for Brown to speak with her doctor
before she was fired—Odom never told Lewis’s doctor that an option existed to expose Lewis to
the more moderate Tase it was willing to give other officers with heart conditions. So we have no
way of knowing whether, had Lewis’s doctor been offered this option, Lewis’s doctor would have
withdrawn her objection. And even if Lewis’s doctor had not, that Lewis could not be Tased did
not mean she could not work a non-patrol position, such as one like the dispatcher position offered
to and maintained open for Heard for eleven months.
24
The Majority Opinion asserts that this also is not a reasonable inference from the record.
Maj. Op. at 31 n.19. In so claiming, the Majority Opinion not only ignores certain facts, it makes
the mistake of construing other facts in the light most favorable to the moving party—the
Department—instead of the nonmoving party—Lewis. In particular, the Majority Opinion rests
its entire position that the Department viewed Lewis’s physical unfitness for duty as a permanent
state of affairs when it put her on administrative leave on its argument that the word “until,” in the
Department’s written communications to Lewis was “agnostic as to the likelihood of Lewis’s
return.” Id. Sure, that interpretation may well be one way of reading the Department’s written
letters to Lewis. But another reasonable way of reading them is as reflecting the Department’s
knowledge that Lewis’s state of unfitness for duty was not necessarily permanent—particularly in
light of its knowledge that it had found ways to render other officers with heart conditions fit for
duty. And that is the view we are required to take under the summary-judgment standard, since it
is the reasonable view that is most favorable to the nonmoving party. Indeed, the Majority Opinion
has offered no reason for why that view is not a reasonable one on this record. Instead, the Majority
Opinion ignores the Supreme Court’s warning in Reeves that a court may not “impermissibly
substitute[] its judgment concerning the weight of the evidence for the jury’s.” 530 U.S. at 153.
94
Case: 15-11362 Date Filed: 03/21/2019 Page: 95 of 100
of Lewis’s condition was not the true reason for the Department’s actions and rather,
that excuse hid discriminatory motivation.
And third, even assuming, arguendo, the Department considered Lewis’s
physical unfitness for duty to be permanent—a conclusion that is not supported by
the record, when Heard’s unfitness for duty was determined not to be temporary, the
Department offered him the opportunity to take a job with the Department that did
not require him to go out on patrol. Odom offered no such alternative to Lewis
before or after firing her, even though he admitted that the Department had enough
information on the same day Lewis was fired to offer her a different position that
would not have required her to patrol the streets. So a reasonable jury could
conclude that the Department did not consistently apply its policies and that it failed
to do so for discriminatory reasons.
The Department offered yet another (a third) reason for firing Lewis at the
time it terminated her employment—that she was “absent without leave” because
her paid leave supposedly expired. But a reasonable jury could find that that reason
has no support in the record. Rather, on June 17, 2010, the Department placed Lewis
on “administrative leave without compensation until such time your physician
releases you.” Lewis remained on that leave until the moment the Department fired
her. And according to the City Manager, whether she had or chose to take paid leave
for any portion of her otherwise-unpaid administrative-leave period was “irrelevant”
95
Case: 15-11362 Date Filed: 03/21/2019 Page: 96 of 100
to the administrative-leave status on which the Department placed her. So contrary
to the Department’s stated reason, a reasonable jury could ascertain that Lewis was
not “absent without leave” when the Department fired her; she was on the very
administrative leave the Department forced her to take. And based on that, a
reasonable jury could conclude that the Department’s third stated reason was pretext
for discrimination.
Closely related to the Department’s contention that Lewis was absent without
leave is its fourth stated reason for firing Lewis: that Lewis missed some unspoken
deadline by which to file her FMLA paperwork. But that’s just it: no deadline was
ever stated—not in the daily communications between the parties, not in the City’s
Employee Handbook, and not anywhere else in the record. Plus, under the terms of
the June 17, 2010, letter, everyone knew Lewis would take FMLA leave after she
exhausted her paid leave,25 and it’s not like Lewis disappeared from the
Department’s radar screen without a trace. On the contrary, Lewis was in regular
communication with the Department, informing it on a daily basis of her progress in
obtaining the FMLA paperwork from her doctor. A reasonable jury could infer that
the Department’s sudden imposition of an apparently previously non-existent
deadline for submitting FMLA paperwork suggests a cover for discrimination.26
25
In fact, on July 6, Brown told Lewis that she was “currently on FMLA Leave with our
department.”
26
Technically, another reason exists for why there a genuine issue of material fact about whether
Lewis was “absent without leave.” The Department fired her at 10:00 a.m. and she appears to have had at
96
Case: 15-11362 Date Filed: 03/21/2019 Page: 97 of 100
Indeed, the Department’s failure to warn Lewis that once her accrued leave
expired she would be terminated rather than placed on unpaid-leave status is just the
sort of arbitrary action that Justice Rehnquist noted could be probative of
discriminatory intent. See Furnco, 438 U.S. at 577 (“[W]e know from our
experience that more often than not people do not act in a totally arbitrary manner,
without any underlying reasons, especially in a business setting. Thus, when all
legitimate reasons for [the adverse employment action] have been eliminated as
possible reasons for the employer’s actions, it is more likely than not [that] the
employer, who we generally assume acts only with some reason, based his decision
on an impermissible consideration such as race.”).
So in sum, Lewis established both at the prima facie and pretext stages that,
at the very least, material questions of fact exist concerning whether she was
“similarly situated” to Heard and McClure in all “material” respects. But the
Majority Opinion engages in a rigorous application of the “similarly situated”
standard at the prima facie case, and it construes the term “material” to include
immaterial comparisons. So Lewis’s case, which should survive summary judgment
under the McDonnell Douglas framework, dies at the prima facie stage. And Lewis
does not even get the chance to contest the Department’s reasons for terminating her
least half-an-hour more of accrued leave remaining at that time. So a jury could conclude that the City’s
reason was pretextual since Lewis may not actually have been absent without leave at the time the City
fired her.
97
Case: 15-11362 Date Filed: 03/21/2019 Page: 98 of 100
employment. That’s unfortunate since the City’s reasons for its action are, when
viewed in the light most favorable to Lewis, suspect.
III.
In sum, I respectfully dissent from the Majority’s decisions to apply a rigorous
“similarly situated” standard at the prima facie stage and to overbroadly construe the
term “material” within the “similarly situated” standard. These errors, which
contravene Title VII’s purpose, are particularly troubling in light of recent studies
on employment discrimination. Even though Title VII has been at work for close to
45 years, we cannot, unfortunately, say that discrimination has been eradicated. To
the contrary, a recent study in the Harvard Business Review found that hiring
discrimination against African-Americans and Latino-Americans has not declined at
all in the last 25 years. See Lincoln Quillian, et. al, Hiring Discrimination Against
Black American Hasn’t Decline in 25 Years, Harvard Business Review, Oct. 11,
2017, available at https://hbr.org/2017/10/hiring-discrimination-against-black-
americans-hasnt-declined-in-25-years. Another study found that Asian-Americans
and African-Americans were twice as likely to receive interviews if they scrubbed
all racial cues from their résumés. Dina Gerdeman, Minorities Who ‘Whiten’ Job
Resumes Get More Interviews, Harvard Business School, May 17, 2017, available
at https://hbswk.hbs.edu/item/minorities-who-whiten-job-resumes-get-more-
interviews.
98
Case: 15-11362 Date Filed: 03/21/2019 Page: 99 of 100
And a recent study from Pew Research concluded that four in ten women have
reported that their employers discriminated against them because of their gender.
See Kim Parker & Cary Funk, Gender Discrimination Comes In Many Forms for
Today’s Working Women, Pew Research, Dec. 14, 2017, available at
http://www.pewresearch.org/fact-tank/2017/12/14/gender-discrimination-comes-
in-many-forms-for-todays-working-women/.27 Plus, women are “still
systematically sideline[d]” once they become pregnant, seeing their hourly wages
chopped by four percent. Natalie Kitroeff and Jessica Silver-Greenberg, “Pregnancy
Discrimination Is Rampant Inside America’s Biggest Companies,” The New York
Times, Feb. 8, 2019, available at
https://www.nytimes.com/interactive/2018/06/15/business/pregnancy-
discrimination.html.
Of course, employers usually don’t post help-wanted signs reading “blacks
need not apply,” and they are generally astute enough not to ask women about plans
to start a family. Instead, discrimination today often surreptitiously sits behind a veil
of subtlety, with the boss handing out the plum assignments to male officers while
relegating the “lady” detectives to “less aggressive” “children crimes.” See supra at
27
This discrimination is not limited to just race and gender, either. For example, in 2017,
the Employment Opportunity Commission reported that it received 84,254 workplace-
discrimination charges and that it secured $398 million for victims of all types of protected classes.
Equal Employment Opportunity Commission, EEOC Releases Fiscal Year 2017 Enforcement and
Litigation Data, Jan. 25, 2018, available at https://www.eeoc.gov/eeoc/newsroom/release/1-25-
18.cfm.
99
Case: 15-11362 Date Filed: 03/21/2019 Page: 100 of 100
45. Using codewords or subtlety does not make discrimination any less of a problem
under Title VII. And because Title VII tolerates none of it, we should be particularly
cautious before ratcheting up plaintiffs’ “not onerous” prima facie burden, in
violation of McDonnell Douglas and its progeny.
I respectfully dissent from the Majority Opinion’s errors.
100