In November, a divided Sixth Circuit affirmed the employer’s
summary judgment on a race discrimination claim because the plaintiff failed to
identify a co-worker who was similar in all relevant respects. Johnson v.
Ohio Department of Public Safety, 942 F.3d 329 (6th Cir.
2019).
The Court found that the plaintiff’s misconduct was more egregious than
and not sufficiently comparable to his co-worker’s misconduct when he asked out
intoxicated women whom he had arrested while in uniform and had actually driven
one of the women home, while the co-worker had only sent two off-duty Facebook
friend requests. Further, the plaintiff
had been placed on a Last Chance Agreement after he pulled over a woman without
probable cause in order to ask her out when the other had not. Moreover, the first allegation against the
co-worker had never been verified. In
addition, they had different supervisors.
Finally, they were disciplined for slightly different offenses and
subjected to different standards because of the Last Chance Agreement.
According to the Court’s opinion, the plaintiff had been placed on
a Last Chance Agreement warning that he could be fired for any misconduct in
the following two years after he asked out an intoxicated woman whom he had
arrested for DUI and then later pulled her over without probable cause in order
to ask her out and giver her his cell phone number. However, he later arrested and handcuffed
another intoxicated woman for DUI, asked her out, texted her, drove her home, failed
to turn on the cameras in his cruisers, etc. He was then fired. He brought suit and claimed that he had been
treated more harshly on account of his race than a white co-worker who had
allegedly sent off-duty Facebook friend requests to two women he had previously
pulled over and cited, only one of which had been verified. The trial court granted summary judgment to
the employer, finding that "the quantum
of misbehavior is radically different, so one would naturally expect a
radically different disciplinary outcome.”
The Court affirmed the employer’s summary judgment on the grounds
that the plaintiff had failed to identify anyone who was similarly-situated in
all relevant respects who had been treated less harshly.
“The Department
disciplined the two troopers differently because their situations were
different.”
When it comes to comparable seriousness, it is the particular conduct of the officers, not broad generalizations, that counts. Drawn at too high a level of generality, the “comparable seriousness” test becomes meaningless. True, stitches and open-heart surgery are both medical procedures. But that does not mean they are of “comparable seriousness.” Same here.
The employees also had different supervisors, which is a factor in determining whether they are sufficiently comparable.
And they were subject to different standards. [The plaintiff] signed a Last Chance Agreement after his first incident. He was on notice that the Department would fire him if he committed another violation. [The co-worker] received a warning that the Department may discipline him if he didn’t clean up his act. The district court described this as a “crucial distinction.”’
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.
