Eleventh Circuit Redefines Comparator in Discrimination Cases

In a race and sex discrimination matter appealed from the Northern District of Georgia, the Eleventh Circuit, sitting en banc, decided to clarify the test for determining whether an individual is a comparator for purposes of establishing a prima facie case of discrimination under McDonnell Douglas. Lewis v. City of Union City, Georgia, et al., 15-11362 (11th Cir. March 21, 2019). In so doing, the Eleventh Circuit recognized the confusion its past decisions may have caused. The Eleventh Circuit noted several decisions where plaintiffs were required to show a comparator was “nearly identical” to the plaintiff, whereas in other decisions, the plaintiff’s burden was more relaxed. The majority (9-3) agreed that a plaintiff must show that a comparator is one who is “similarly situated in all material aspects.” In addition, the majority determined that to establish a prima facie case of discrimination, the plaintiff must meet its burden at the initial stage of the test as laid out in McDonnell Douglas.

Plaintiff Jacqueline Lewis, an African-American woman, was terminated in 2010 from the Union City Police Department after she refused to undergo taser and pepper spray training due to medical reasons and failed to submit FMLA paperwork.

Ms. Lewis started working for Union City Police Department in 2001 as a patrol officer and moved her way up to detective in 2008. In 2010, the department decided to issue tasers to officers and the police chief changed the policy to require all officers go through taser and pepper spray training, which included being shocked by the taser and being sprayed by pepper spray. Ms. Lewis had suffered a heart attack in 2009 and asked her doctor about her physical ability to undergo such training. Ms. Lewis’ doctor wrote a note stating Ms. Lewis suffered from “several chronic conditions” and recommended that taser and pepper spray not be used “on or near” Ms. Lewis. The police chief determined that such restrictions prevented Ms. Lewis from performing the essential duties of her job and placed her on administrative leave without pay. Ms. Lewis was permitted to use her accumulated leave at the end of which Ms. Lewis was required to file FMLA paperwork or return to duty, which included undergoing the training. At the end of her leave, Ms. Lewis failed to file the proper FMLA paperwork and her absences were deemed “unapproved,” which was cause for termination.

Ms. Lewis identified two Caucasian males, who she contended were comparators. The first failed a balance portion of the physical fitness test in 2014 and was given 90 days of unpaid leave in which to retake the test and return to work. The second failed the ability portion of his physical fitness test in 2013 and was likewise given 90 days to retake the test. The first officer passed his test and ultimately returned to work, whereas the second officer was ultimately terminated. The Eleventh Circuit noted that a policy change had occurred after Ms. Lewis’ termination, but before the Caucasian officers were given 90 days. The court found that this policy change was unrelated to race or gender and therefore the Caucasian officers were not similarly situated in all material aspects. In addition, the Caucasian officers’ conditions were remediable whereas Ms. Lewis was never medically cleared to go through taser/pepper spray training.

The Eleventh Circuit noted identifying a comparator, who is similarly situated in all material aspects, must be shown in the first stage of the McDonnell Douglas test as opposed to leaving for a jury to determine whether the comparator is similar. Though the Eleventh Circuit determined Ms. Lewis did not establish a prima facie case, the matter was remanded to the panel to determine whether Ms. Lewis was able to establish discrimination through a “convincing mosaic” of circumstantial evidence.