Eleventh Circuit Court of Appeals 
Weekly Update
 March 31, 2019
Published Cases
March 21, 2019 (en banc)

Lewis bought race and gender discrimination claims under Title VII, Section 1981 and Section 1983 (Equal Protection) after she was terminated from her position as a detective. The Eleventh Circuit vacated the panel ’s opinion, which reversed the award of summary judgment in favor of the employer, and took the case en banc to clarify the proper standard for comparator evidence in intentional-discrimination cases. In a 9-3 decision, the opinion of the Court determined that the comparator analysis must be conducted at the prima facie stage of the McDonnell Douglas ’s burden-shifting framework, clarified that comparators must be “similarly situated in all material aspects,” and held Lewis failed to establish a prima facie case of discrimination. 

The majority rejected Lewis’s argument that the comparator analysis should occur after the employer has proffered a legitimate non-discriminatory reason for a plaintiff’s termination. It explained that “[b]y its very nature. . .discrimination is a comparative concept — it requires an assessment of whether ‘like’ . . . people or things are treated ‘differently’” and that “[a]bsent a qualitative comparison at the  prima facie  stage. . .there's no way of knowing (or even inferring) that discrimination is afoot.” Therefore, it had no trouble concluding that the analysis must remain part of the prima facie case, and requiring that “[i]n 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 question, but also that she was treated less favorably than ‘similarly situated’ individuals outside her class.”

As to the comparator analysis, the Court recognized that it had applied a nearly-identical standard, while also having utilized a “same-or-similar” standard. The Court then rejected both parties’ positions about what standard to apply and concluded a plaintiff asserting an intentional-discrimination claim under McDonnell Douglas must demonstrate she and her proffered comparators were “similarly situated in all material aspects.” The Court explained that ordinarily a similarly situated comparator will have engaged in the same basic conduct (or misconduct) as the plaintiff; will have been subject to the same employment policy , guideline, or rules as the plaintiff; will ordinarily (although not invariably) have been under the jurisdiction of the same supervisor as the plaintiff; and, will share the plaintiff’s employment or disciplinary history . It further opined that “a valid comparison will turn not on formal labels, but rather on substantive likenesses” and quoted Young v. UPS to clarify that “comparators must be sufficiently similar in an objective sense, that they ‘cannot be reasonably distinguished.’”

Applying their analysis, the Court noted that Lewis was terminated after the Department adopted a policy that required all officers to be tasered as part of their training and to carry both a taser and pepper spray. Lewis, who had previously had a heart attack, provided a doctor’s note stating that she could not be tasered, and that it could not be used on or near her and she should not be near pepper spray. As a result, she was placed upon medical leave and was instructed to complete FMLA paperwork to cover her absence. After several weeks Lewis exhausted her leave but had not completed her FMLA paperwork due to delay with her physician. Her absences were then deemed unapproved and she was terminated pursuant to the City’s personnel policy.
Lewis proposed two white officers as cooperators who had also been placed on administrative leave after they could not meet a physical qualification of the job of police officer. In rejecting her proposed comparators, the Court highlighted that the comparators were placed on leave years after Lewis’s termination, pursuant to a different personnel policy and for different conditions: the white officers had failed physical fitness requirements relating to balance and agility and were given 90 days to remedy the problem. The first officer retook and passed the test, then returning to work. The second officer was unable to demonstrate his fitness and was terminated. The Court distinguished that Lewis had a permanent heart condition and was never cleared to participate in the required training. She, therefore, failed to establish a prima facie case for want of comparators. 

Although the dissent agreed that the majority correctly defined “similarly situated,” it viewed the majority opinion as dropping an anvil on the employers’ side of the balance by applying that analysis before the pretext stage and by requiring evidence of factors that will not always be truly material to a case. In setting forth its analysis the dissent included a more detailed factual recitation of the case and accused the majority of assuming facts in favor of the defendant that were not supported by the record.

The dissent opined that McDonnell Douglas requires a generalized application of the similarly-situated standard at the initial stage and then a more particularized application after the employer has proffered a legitimate non-discriminatory reason for its action. It opined that requiring consideration of the employer’s nondiscriminatory reason at the prima facie stage, instead of in two parts, flouted Supreme Court precedent, particularly citing to St. Mary’s Honor Center v. Hicks .  

[ Author’s Note : Ever since Jones v. Gerwens utilized different language than Nix , the Eleventh Circuit has applied varying language in disparate discipline cases. The en banc decision resolves 30 years of such variance. While the Court opined that its decision was to clarify “the proper standard for comparator evidence in intentional-discrimination cases,” the relevant cases all involved allegedly disparate discipline (although not necessarily for misconduct), and it remains to be seen what application outside that context the decision will have.
Unpublished Cases
There were no unpublished labor or employment cases last week.

A case not within the Eleventh Circuit but which might be of interest is the district court decision on remand of Janus v. AFSCME , Case No. 15-C-1235 (N.D. Ill. March 18, 2019). Following the 2018 Supreme Court decision , plaintiff Janus sought reimbursement of the union fees previously withheld from his pay. Concluding that a private actor could establish a good-faith defense when sued under Section 1983 for actions authorized by a then-valid state law, the district court granted AFSCME’s motion for summary judgment as to the plaintiff’s claims for reimbursement.  
The Eleventh Circuit Weekly Update was prepared by Reemployment Assistance Appeals Commission staff: case summaries by Chairman Frank E. Brown, and Appellate Counsel Cristina A. Velez and Katie E. Sabo; editing by Deputy General Counsel and Chief Appellate Attorney Amanda L. Neff; research and layout by Research Attorney Lesley Blanton.