Very seldom is there overt evidence an employer discriminated on the basis of race, sex, disability, etc. Most of the time plaintiff employees have to prove their claim by showing they were treated less favorably than similarly situated employees who were not in the protected class. For example, if there is evidence the employer imposed lesser discipline on white employees than a black employee for similar conduct, it may be sufficient to create an inference the black employee was treated differently because of race. A hotly contested issue in most discrimination cases— in discovery, at the summary judgment stage, and during trial—involves determining whether the circumstances of these “other” comparator employees are similar enough to the plaintiff’s circumstances to justify using them as evidence of unlawful discrimination.
In a recent Eighth Circuit decision (Davis v. Jefferson Hosp. Assoc.), the Court reaffirmed the long-standing rule that comparing the plaintiff to any other employee outside the protected class is not enough. Rather, he must show the other employees are “similarly situated in all relevant aspects.” The individuals used for comparison “must have dealt with the same supervisor, have been subject to the same standards, and engaged in the same conduct without any mitigating or distinguishing circumstances.”
The plaintiff in Davis was a staff physician at Jefferson Hospital. The hospital’s credentialing committee investigated the plaintiff because of complaints of abusive and offensive behavior toward staff and patients, as well as problems with quality of care issues, such as keeping accurate and timely charts and responding to calls for patient assistance. The credentials committee ultimately recommended the plaintiff’s privileges be revoked after finding his treatment in four patient death cases fell below the standard of care. The hospital’s board voted unanimously to revoke the plaintiff’s privileges, citing three reasons: poor quality of patient care, improper medical documentation, and unprofessional behavior.
Plaintiff, who is black, sued the hospital for race discrimination. In support of his claim, plaintiff presented evidence that three non-African-American physicians used used profanity and made derogatory comments in front of hospital staff, but were not subject to discipline or a corrective action plan like he was. Plaintiff also produced affidavits of eleven other persons who testified that white physicians had also behaved inappropriately toward hospital staff but were not disciplined. The court ruled that this evidence was not enough to generate an inference plaintiff was discriminated against because of his race, because there was no evidence that any of the white physicians in question had record keeping or quality of care issues as did plaintiff. In other words, while these other physicians had acted unprofessionally without discipline, the fact that they lack similarity in two of the other reasons for plaintiff’s discharge was not enough to prove race was a motivating factor. Case dismissed.
Takeaway from the Davis case: when terminating an employee or taking other adverse action, it is important to identify and document at the time all the reasons for the action. That is the best way to determine whether you are treating similarly situated employees in a consistent manner, and avoids the problem of identifying reasons after the fact.