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The Fifth Circuit's "Similarly Situated" / "Nearly Identical" Requirement

In most discrimination cases nowadays, there is no direct evidence of discrimination. Direct evidence includes evidence of discriminatory animus, or a statement and admission that the plaintiff was fired because of his/her race/gender/age/religion/disability. Most decision makers nowadays are not ignorant or brazen e nough to display their bias in employment decisions.

So, most cases must be proven through circumstantial evidence. For over 40 years now, the law has imposed the following so-called burden-shifting framework in assessing these circumstantial evidence cases: Step 1―the plaintiff must prove a prima facie case, which creates a presumption of an illegal decision; Step 2―the defendant then produces evidence of a legitimate, non-discriminatory reason; and Step 3―the plaintiff must prove that the proffered reason is unworthy of credence ― that it's a lie. Step 3 is based on the common-sense idea that someone who has nothing to hide has no reason to lie; but if they do, well then, we just might conclude that they've lied to hide an illegal reason.

Anyway, the prima facie case requires the plaintiff to prove s/he (1) is in the protected class; (2) was qualified for the position; (3) suffered an adverse employment action; and (4) was replaced by someone outside the protected class (i.e., replaced by someone of another race, gender, etc.) or otherwise treated less favorably than someone who is "similarly situated" outside the protected class. A plaintiff's failure to prove a prima facie case is fatal to his or her claim.

It is the last prong of the prima facie case analysis that the Fifth Circuit recently discussed in two cases, both issued on June 28, 2016, and both written by Judge Priscilla Owen: Morris v. Town of Independence [Louisiana] and Rogers v. Pearland I.S.D. Before Morris and Rogers, the Fifth Circuit had held that "similarly situated" requires the plaintiff to prove that he was treated less favorably than another person "under nearly identical circumstance." Morris and Rogers present an interesting look into how the Fifth Circuit construes "similarly situated."

In Morris, the plaintiff, an African-American woman, was terminated from her part-time position with the Town of Independence (the "Town"). She claimed she was terminated because of her race; and the Town argued that her employment ended because of budget cuts. The trial court granted the Town's motion for summary judgment, and dismissed her case; and Ms. Morris appealed.

On appeal the Fifth Circuit focused its analysis on the "similarly situated" requirement of the fourth prong of the prima facie case. Acknowledging that "'nearly identical' is not synonymous with 'identical,'" it nevertheless affirmed the trial court and dismissed Ms. Morris's case.

Ms. Morris argued that a Caucasian woman was a "similarly situated" comparator, but the Court disagreed. Based on the Court's articulation of the facts, the comparator was not "similarly situated" because the comparator (1) held a different position and performed different job duties; (2) was full-time, while Ms. Morris was part-time; and (3) had never had complaints about her job performance, unlike Ms. Morris. As a result, the Fifth Circuit held that Ms. Morris had failed to prove her prima facie case because she couldn't prove that she was treated less favorably than a "similarly situated" employee. Under the facts as the Court has articulated them, the holding in Morris is fairly uncontroversial.

The more interesting of the two cases is Rogers. In that case, the plaintiff was an African-American man who applied for, but failed to obtain a master electrician position with Pearland I.S.D. (PISD). He sued PISD, claiming that it failed to hire him because of his race. The trial court disagreed, and dismissed Mr. Rogers' case. Mr. Rogers appealed. The Fifth Circuit affirmed the dismissal of his case because, it said, like Ms. Morris, Mr. Rogers had also failed to prove a prima facie case.

In response to Mr. Rogers' claim that it didn't hire him because he is African-American, PISD argued that it failed to hire him because he had failed to disclose prior felony drug-related convictions on his employment application.

When it came time to prove his prima facie case, Mr. Rogers could not claim that he was replaced by someone outside the protected class because PISD hired an African-American man to fill the master electrician position for which Mr. Rogers applied.

As a result, Mr. Rogers argued that he was treated less favorably than a "similarly situated" Caucasian man ("the comparator"). Specifically, Mr. Rogers argued that the comparator had likewise failed to disclose a drug-related conviction on his application; but, unlike Mr. Rogers, PISD nevertheless hired the comparator. The majority of this panel disagreed.

Although both Mr. Rogers and the comparator failed to disclose drug convictions on their application, the Fifth Circuit held that the two were not "nearly identical" and thus not "similarly situated." The two-judge majority noted that, while the comparator failed to disclose one drug-related offense on his application, Mr. Rogers failed to disclose three.

That's it. That's the distinction, according to the majority, between Mr. Rogers and the comparator―one conviction versus three. As a result, Mr. Rogers loses.

Interestingly, while she did so in Morris, Judge Owen did not in Rogers acknowledge that "nearly identical" is not the same as "identical."

Judge Graves did acknowledge that distinction, and dissented. Judge Graves argued that the majority's construction of "nearly identical" in this case "is so strenuous that it effectively immunizes employers from disparate treatment claims unless the plaintiff is able to show that he shares identical traits with the alleged comparator."

Here's why: Judge Graves notes that, under the law of the Fifth Circuit, the focus is on "the action that caused the employment decision, and whether that action elicited the same or a different response from the employer with the alleged comparator." (Emphasis in Judge Graves' opinion.) He then argues that the action at issue here is not the felony convictions on which the majority has chosen to focus. The action is the failure of both Mr. Rogers and the comparator to disclose the felonies on their application. When it comes to their actions, then, Mr. Rogers and the comparator are "nearly identical." Yet, Judge Graves is troubled because PISD didn't hire Mr. Rogers, but it hired the white comparator.

Judge Graves concludes that these facts show that Mr. Rogers and the comparator are "similarly situated," and that fact, along with other evidence of animus toward Mr. Rogers would lead him to reverse the dismissal of Mr. Rogers' lawsuit and allow him to proceed to trial.

These two diametrically opposed views of the facts of this case are interesting. However, if the focus is―as it clearly should be―on the action that allegedly caused the employer to take the adverse action, then Judge Graves has the better of the argument here.

It may be that the majority was concerned about the nature of the offenses the Mr. Rogers failed to disclose on his application―particularly because he was applying for a job that would presumably bring him into contact with children. But that policy decision was not one for the Court to make under the guise of finding that Mr. Rogers and the comparator were not similarly situated; and, in any event, PISD hired someone else with a similar offense and, as the majority itself notes, even PISD had no policy that prevented a convicted felon from obtaining employment.

"Similarly situated" / "Nearly Identical" is an evolving issue that bears watching. Particularly after Rogers, we in the Fifth Circuit could certainly use a decision by the Fifth Circuit sitting en banc or, better yet, from the United States Supreme Court.

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