Cracking The Comparator Code
By
Matthew C. Koski 1
I.
Introduction
While unlawful discrimination remains a serious problem for many workers, discriminatory
animus is less overt in the modern American workplace than it was in the early days following
the adoption of our nation’s anti-discrimination laws. As a result, there is rarely “smoking gun”
evidence to support the typical discrimination claim. Based in part on this reality, it has long
been accepted that various types of circumstantial evidence can be very persuasive in
employment discrimination cases. One such mode of proof is the presentation of evidence
relating to the treatment of co-workers under similar circumstances, commonly referred to as
“comparator evidence.” Courts have recognized a number of situations—including discharge,
discipline and hiring cases—where comparator evidence can be particularly useful and powerful.
The Employee Rights Advocacy Institute For Law & Policy’s (The Institute’s) third paper in its
Summary Judgment Toolkit Series will examine the more egregious ways that some courts have
turned the comparator evidence model into immutable evidentiary requirements.
Using comparators to develop a circumstantial case for discrimination is best understood as an
outgrowth of the structure for establishing a prima facie case developed by the U.S. Supreme
Court nearly four decades ago in McDonnell Douglas, Corp. v. Green. 2 Knowing that the “facts
will necessarily vary” in discrimination cases, the Court has stressed repeatedly that the proof
scheme under McDonnell Douglas should not present a heavy burden for plaintiffs and was
1
Matthew C. Koski is The Employee Rights Advocacy Institute For Law & Policy’s Paul H. Tobias Attorney
Fellow and a member of its National Litigation Strategy Project Task Force. In this capacity, Mr. Koski focuses on
protecting workers’ rights by ensuring meaningful access to the civil justice system. Mr. Koski received his B.A.
from the University of California, Davis and his J.D. with distinction from the University of the Pacific, McGeorge
School of Law in 2008, where he was a member of the Roger Traynor Honor Society and the Articles Editor for the
McGeorge Global Business and Development Law Journal.
The Employee Rights Advocacy Institute For Law & Policy (The Institute) is the related charitable and educational
arm of the National Employment Lawyers Association (NELA). The author is grateful to Institute Program Director
Rebecca Hamburg Cappy, as well as NELA members Alice W. Ballard, Charlotte Fishman, Bruce A. Fredrickson,
Diane S. King, and David L. Lee, who serve on The Institute’s National Litigation Strategy Project Task Force, for
their valuable contributions to this article.
2
411 U.S. 792 (1973).
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Cracking The Comparator Code
never intended to be “rigid, mechanized, or ritualistic.” 3 As a result, lower courts were left free
to adapt the McDonnell Douglas framework as the underlying theories and facts of each case
dictated. Unfortunately, some courts took a different tack, and used McDonnell Douglas to raise
the evidentiary bar for plaintiffs. 4 For example, some judges have altered McDonnell Douglas to
require all plaintiffs who lack direct evidence of discrimination to present “similarly situated”
comparators, 5 while others mandate that the plaintiff’s comparators be “nearly identical” to the
plaintiff.
This is particularly problematic because of the prominent role that summary judgment plays in
employment cases. 6 Notwithstanding the Supreme Court’s decision in Desert Palace, Inc. v.
Costa, 7 discussed below, many courts continue to apply McDonnell Douglas as a matter of
course in evaluating motions for summary judgment in cases where the plaintiff lacks “direct
evidence” of bias. 8 As a result, even if some courts assert that plaintiffs are not required to
3
Furnco Construction Corp. v. Waters, 438 U.S. 567, 577 (1978).
Part of the explanation likely lies in changing assumptions among judges about the causes of disparate treatment in
the workplace. Compare Timmerman v. U.S. Bank, N.A., 483 F.3d 1106, 1121 (10th Cir. 2007) (quoting EEOC v.
Flasher Co., 986 F.2d 1312, 1320 (10th Cir. 1992) (internal citations omitted) (“Sometimes apparently irrational
differences in treatment between different employees that cannot be explained on the basis of clearly articulated
company policies may be explained by the fact that the discipline was administered by different supervisors, or that
the events occurred at different times when the company’s attitudes toward certain infractions were different, or that
the individualized circumstances surrounding the infractions offered some mitigation for the infractions less severely
punished, or even that the less severely sanctioned employee may be more valuable to the company for
nondiscriminatory reasons than is the other employee. Other times, no rational explanation for the differential
treatment between the plaintiff and the comparison employees may be offered other than the inevitability that human
relationships cannot be structured with mathematical precision, and even that explanation does not compel the
conclusion that the defendant was acting with a secret, illegal discriminatory motive. Hence, it is up to the plaintiff
to establish not only that differential treatment occurred, but also to rule out nondiscriminatory explanations for the
differential treatment.”) with Furnco, supra note 1 at 577 (“And we are willing to presume this largely because we
know from our experience that more often than not people do not act in a totally arbitrary manner, without any
underlying reasons, especially in a business setting. Thus, when all legitimate reasons for rejecting an applicant have
been eliminated as possible reasons for the employer’s actions, it is more likely than not the employer, who we
generally assume acts only with some reason, based his decision on an impermissible consideration such as race.”)
5
See e.g., Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1398 (7th Cir. 1997) (“What is true is that if a plaintiff
has only the McDonnell Douglas formula to stave off summary judgment—if he has no other evidence of
discrimination—he must show that another, and similarly situated, employee . . . was treated more favorably than
he.”) (emphasis added).
6
See Joe Cecil and George Cort, The Federal Judicial Center, Report on Summary Judgment Practice Across
Districts with Variations in Local Rules at 12, tbl. 7 (August 13, 2008).
7
539 U.S. 90 (2003).
8
For example, the Sixth Circuit in Tysinger v. Police Dep’t of the City of Zanesville, 463 F.3d 569 (6th Cir. 2006),
the Eighth Circuit in Griffith v. City of Des Moines, 387 F.3d 733 (8th Cir. 2004), the Eleventh Circuit in Burstein v.
Emtel Inc., 137 Fed. Appx. 205 (11th Cir. 2005) (unpublished), and the D.C. Circuit in Ginger v. Dist. of Columbia,
477 F. Supp. 2d 41 (D.D.C. 2007), aff’d, 527 F.3d 1340 (D.C. Cir. 2008) imposed the McDonnell Douglas
framework on plaintiffs who sought to pursue their cases under the “motivating factor” standard. See also Fye v.
Okla. Corp. Comm’n, 516 F.3d 1217, 1226 (10th Cir. 2008), which, while ostensibly following Desert Palace by
not requiring “direct evidence,” still required plaintiffs to present evidence that “directly show[ed]” that
discrimination was a motivating factor in an adverse employment action. The reader may decide whether this is a
distinction without a difference.
4
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present comparator evidence, 9 practically speaking, many must do so to avoid summary
judgment. 10
Nonetheless, there is hope for employee rights advocates. While the Supreme Court has yet to
address the issue of comparators head-on, in cases such as Reeves v. Sanderson Plumbing, 11
Desert Palace, Ash v. Tyson Foods, Inc., 12 and Sprint v. Mendelsohn, 13 the Court has refused to
adopt particularized evidentiary requirements for employment cases. These decisions, properly
synthesized with other favorable precedent from lower courts, can provide lawyers with a way to
prevent cases from being derailed by “nearly identical” comparator requirements at summary
judgment, and courts with a method for evaluating comparator evidence that is more faithful to
the goals of our anti-discrimination laws and the Supreme Court decisions interpreting them.
II.
Background
Proving intentional discrimination is an inherently difficult task. Even when overt evidence of
workplace discrimination was more common, courts recognized that “[t]here will seldom be
‘eyewitness’ testimony as to the employer’s mental processes.” 14 Absent this type of overt
evidence of discrimination, courts accepted that plaintiffs must build their case with a variety of
different types of circumstantial evidence 15 from which the jury would then infer whether the
defendant unlawfully discriminated.
It is in this context that the Supreme Court in McDonnell Douglas developed the now ubiquitous
method for organizing the presentation of evidence in cases alleging employment discrimination.
If the plaintiff succeeds in making a prima facie case of discrimination, 16 this creates a
presumption that the defendant is liable for the alleged violation. 17
9
See e.g., Brown v. Henderson, 257 F.3d 246, 253-54 (2d Cir. 2001) (“In other words, what matters in the end is not
how the employer treated other employees, if any, of a different sex, but how the employer would have treated the
plaintiff had she been of a different sex.”) (Citations omitted and emphasis in original).
10
See e.g., Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997) (In cases where the plaintiff fails to present
evidence of a similarly situated employee, summary judgment is appropriate “when no other evidence of
discrimination is present.”) (Internal citations omitted).
11
530 U.S. 133 (2000).
12
546 U.S. 454 (2006).
13
Sprint/United Mgmt. v. Mendelsohn, 552 U.S. 379 (2008).
14
U.S. Post. Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716 (1983).
15
For example, in a race discrimination case, “other evidence that may be relevant to any showing of pretext
includes facts as to the petitioner’s treatment of respondent during his prior term of employment; petitioner’s
reaction, if any, to respondent’s legitimate civil rights activities; and petitioner’s general policy and practice with
respect to minority employment. On the latter point, statistics as to petitioner’s employment policy and practice may
be helpful to a determination of whether petitioner’s refusal to rehire respondent in this case conformed to a general
pattern of discrimination against blacks.” McDonnell Douglas, 411 U.S. at 804-05.
16
“The complainant in a Title VII trial must carry the initial burden under the statute of establishing a prima facie
case of racial discrimination. This may be done by showing (i) that he belongs to a racial minority; (ii) that he
applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his
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The McDonnell Douglas framework was tailored to the specific facts of that case—a race
discrimination claim in which the defendant fired and refused to rehire the plaintiff after he
engaged in acts of civil disobedience. Because “[t]he facts necessarily will vary in Title VII
cases, and the specification above of the prima facie proof required from respondent is not
necessarily applicable in every respect to differing factual situations,” 18 the Court declined to
bind the lower courts to any single method. Consistent with this flexible approach, the Court
described the inquiry as applied in a hiring/promotion case in more general terms:
The burden of establishing a prima facie case of disparate treatment is not
onerous. The plaintiff must prove by a preponderance of the evidence that she
applied for an available position for which she was qualified, but was rejected
under circumstances which give rise to an inference of unlawful discrimination. 19
The presumption created by the prima facie case can be rebutted if the defendant produces
through admissible evidence a non-discriminatory reason for the decision at issue. 20 Once the
presumption is rebutted, the plaintiff may prevail by proving that the explanation offered by the
defendant is pretextual. 21 In McDonnell Douglas, the Court suggested that it would be
“especially relevant” if there was “evidence that white employees involved in acts against
petitioner of comparable seriousness to the ‘stall-in’ were nevertheless retained or rehired.” 22
In addition to firing/discipline cases like McDonnell Douglas, the Court recognized the potential
value of comparator evidence for showing pretext in, for example, hiring/promotion cases. While
both types of cases involve forms of “comparator evidence,” it is useful to keep in mind the
differences between the two sets of cases. For example, in hiring/promotion cases, discrimination
can be inferred from differences in the respective qualifications of the plaintiff and the individual
qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer
continued to seek applicants from persons of complainant’s qualifications.” Id. at 802.
17
Furnco, 438 U.S. at 577 (1978) (The prima facie case “raises an inference of discrimination only because we
presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible
factors.”)
18
McDonnell Douglas, 411 U.S. at 802 n.13.
19
Tex. Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).
20
While the burden of producing evidence at the various stages shifts between plaintiff and defendant, the plaintiff
always bears the overall burden of proving the claim.
21
Burdine, 450 U.S. at 256 (“The plaintiff retains the burden of persuasion. She now must have the opportunity to
demonstrate that the proffered reason was not the true reason for the employment decision. This burden now merges
with the ultimate burden of persuading the court that she has been the victim of intentional discrimination. She may
succeed in this either directly by persuading the court that a discriminatory reason more likely motivated the
employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.”)
22
McDonnell Douglas, 411 U.S. at 804.
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who was hired/promoted, 23 whereas in firing/discipline cases, discrimination may be inferred
from the similarities between the plaintiff and other co-workers that were treated more
favorably. 24
III.
Comparator Requirements In Different Contexts
While the early Supreme Court cases discussed comparator evidence in the context of proving
the third stage of the McDonnell Douglas framework—the pretext phase—in the years since the
Court decided the cases described in the previous section, some lower courts have steadily
restricted the scope of evidence from which a prima facie case of discrimination can be
inferred. 25 This restrictive view of the prima facie inquiry, combined with ever-tightening
definitions of who qualifies as a “comparator,” has left many plaintiffs facing a practically
insurmountable standard at summary judgment.
A. Firing/Discipline Cases
In firing/discipline cases, courts have devised a variety of methods—requiring the plaintiff and
the comparator to be similarly situated in all respects, to have the same supervisor, to have
committed the same infraction, and/or to be nearly identical to one another—that work to limit
the evidence that can be introduced in support of a discrimination claim. The following excerpts
from cases in the Courts of Appeals show that this problem can be broken down into two parts.
First, many courts have moved towards imposing a form of the McDonnell Douglas framework
that requires rather than merely allows plaintiffs to use comparator evidence to either make a
prima facie case or show pretext. Second, after entrenching the comparator-specific form of
McDonnell Douglas, courts have compounded the problem by further restricting the scope of
what constitutes probative comparator evidence.
23
See e.g., Burdine, 450 U.S. at 259 (“The fact that a court may think that the employer misjudged the qualifications
of the applicants does not in itself expose him to Title VII liability, although this may be probative of whether the
employer’s reasons are pretexts for discrimination.”) and Patterson v. McLean Credit Union, 491 U.S. 164, 187-88
(1989) (“Indeed, she might seek to demonstrate that respondent’s claim to have promoted a better qualified applicant
was pretextual by showing that she was in fact better qualified than the person chosen for the position.”).
24
See § III(a) infra.
25
For a more comprehensive survey of the standards courts have applied in addressing comparator evidence in
employment discrimination cases, see Charles A. Sullivan, The Phoenix from the Ash, Proving Discrimination By
Comparators, 60 Ala. L. Rev. 191 (2009) and Ernest F. Lidge, The Courts’ Misuse of the Similarly Situated Concept
in Employment Discrimination Law, 67 Mo. L. Rev. 831 (2002).
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i.
Courts Impose A Comparator Requirement
To illustrate the first part of the problem, compare the following conceptions of the prima facie
inquiry. In Rodgers v. U.S. Bank, N.A., 26 the Eighth Circuit described the standard applicable in a
firing case as:
In order to establish a prima facie case of discrimination on the part of U.S. Bank,
Rodgers must show that: (1) she is a member of a protected group; (2) she was
qualified for her position; (3) she was discharged; and (4) the discharge occurred
under circumstances giving rise to an inference of discrimination. 27
This example resembles the standard the Supreme Court suggested in Burdine, 28 although
framing the fourth prong in such a way begs an important question, which was raised in a recent
article by Professor Charles Sullivan. 29 Under the Rodgers standard, if the plaintiff can show that
she was discharged under circumstances giving rise to an inference of discrimination, what
purpose do the other factors serve? For if the circumstances give rise to an inference of
discrimination, then the goal of the prima facie inquiry has been achieved and simply going
through the process of satisfying the other factors should be unnecessary. That said, the Rodgers
standard is faithful to the reasoning of McDonnell Douglas in that its open-ended fourth prong
does not restrict the plaintiff to any particular form of evidence from which the court could
potentially infer discrimination.
By contrast, another iteration of the standard, an example of which was articulated in Chappell v.
Bilco Co., 30 avoided the logical flaws of the Rodgers standard, but raised a more problematic set
of issues for plaintiffs.
To establish a prima facie case of racial discrimination Chappell must
demonstrate that (1) he is a member of a protected class; (2) he was meeting his
employer’s legitimate expectations; (3) he suffered an adverse job action; and (4)
similarly situated employees who were not part of the protected group were
treated more favorably. 31
As one can see, while it achieved some internal logical consistency, the court had fundamentally
altered the McDonnell Douglas inquiry. A variety of different types of evidence other than
26
417 F.3d 845 (8th Cir. 2005).
Id. at 850.
28
See supra note 19 and accompanying text.
29
See Sullivan, The Phoenix from the Ash at 205.
30
114 Fair Empl. Prac. Cas. (BNA) 1089 (8th Cir. 2012).
31
Id. at *17.
27
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comparator evidence—biased remarks, statistics, etc.—from which a court could infer
discrimination under the Rodgers standard, 32 are foreclosed by imposing a comparator
requirement at the prima facie stage. In addition, the Chappell standard introduces another
nuance—the “similarly situated” requirement—that, as will be discussed below, works to further
narrow the scope of admissible evidence.
ii.
Courts Restrict The Definition Of Comparator
To illustrate the second part of the problem, observe how the courts use the “similarly situated”
standard—a standard that has never been defined by the Supreme Court—to further circumscribe
the scope of who may qualify as a comparator. Later in its opinion in Chappell, the Eighth
Circuit described the alternative methods that courts in the circuit have used to determine
whether comparators are similarly situated to the plaintiff.
As we noted in Rodgers, two lines of cases in our Circuit have developed two
standards for determining whether other employees are “similarly situated.” One
requires that “the employees ‘are involved in or accused of the same or similar
conduct and are disciplined in different ways,’” while the other requires that the
employees be “similarly situated in all respects.” 33
In Aramburu v. Boeing Co., 34 the Tenth Circuit described the similarly situated
requirement in even more specific terms.
Similarly situated employees are those who deal with the same supervisor and are
subject to the same standards governing performance evaluation and discipline. 35
Finally, an excerpt from the Eleventh Circuit presents the most extreme example of the problem
as applied in discipline cases.
Rioux’s 36 second argument supporting his burden of showing pretext, that
Dunham was a similarly-situated employee who was treated more favorably than
Rioux following similar misconduct, however, fails. “[T]o determine whether
employees are similarly situated, we evaluate ‘whether the employees are
involved in or accused of the same or similar conduct and are disciplined in
32
See supra note 15.
Id. at *18.
34
112 F.3d 1398 (10th Cir. 1997).
35
Id. at 1404.
36
Rioux v. City of Atlanta, 520 F.3d 1269, 1279-80 (11th Cir. 2008).
33
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different ways.’” 37 A comparator is an employee “similarly situated [to the
plaintiff] ‘in all relevant respects.’” 38 The “‘quantity and quality of the
comparator’s misconduct [must] be nearly identical to prevent courts from
second-guessing employers’ reasonable decisions and confusing apples with
oranges.’” 39 Misconduct merely “similar” to the misconduct of the disciplined
plaintiff is insufficient. 40
To prove pretext under the above standard, the plaintiff must present evidence of a similarly
situated employee who was treated more favorably. In one breath the court states that similarly
situated employees are those who have been accused of the “same or similar” conduct, and in the
next, the court asserts the “quantity and quality” of their respective misconduct must be “nearly
identical” such that “similar misconduct” does not suffice. The court has conscripted the usual
definition of “similar” and taken it instead to require showing the “same” or “nearly identical.”
B. Hiring/Promotion Cases
As with firing/discipline cases, early Supreme Court cases affirmed the potential value of
comparative qualifications evidence in the context of showing pretext. 41 Unlike in the
firing/discipline cases, the problem does not stem from the insertion of a comparatorspecific component to the prima facie inquiry. In Chambers v. Wynne Sch. Dist., 42 the
Eighth Circuit described the requirements in a hiring case as follows:
A prima facie case of discrimination in a failure-to-hire context requires Gordon
to show that (1) he belongs to a protected class; (2) he applied and was qualified
for a job for which the defendant was seeking applicants; (3) he was rejected; and
(4) the defendant sought applications from others. 43
This is an example of a general, objective standard for presenting a prima facie case of
discrimination in a hiring/promotion case, and is quite close to the standard that the Supreme
Court discussed in McDonnell Douglas (at least the portion of the opinion addressing the
defendant’s failure to rehire the plaintiff). 44 As was the case in firing/discipline cases, however,
37
Burke-Fowler v. Orange County, Fla., 447 F.3d 1319,1323 (11th. Cir. 2006) (quoting Maniccia v. Brown, 171
F.3d 1364, 1368 (11th Cir. 1999) (citations omitted)).
38
Wilson v. B/E Aerospace, Inc., 376 F.3d 1079,1091 (11th Cir. 2004) (quoting Holifield v. Reno, 115 F.3d
1555,1562 (11th. Cir. 1997)).
39
Burke-Fowler, 447 F.3d at 1323 (quoting Maniccia, 171 F.3d at 1368) (citations omitted)).
40
Id. at n.2.
41
See supra note 23.
42
909 F.2d 1214 (8th Cir. 1990).
43
Id. at 1216.
44
See supra note 16.
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many courts over the years have steadily narrowed the circumstances under which they would
infer pretext from evidence that the plaintiff was better qualified than the individual who was
hired/promoted.
In Ash v. Tyson Foods, Inc., 45 the Supreme Court struck down the worst of these standards. In
that case, the plaintiffs alleged that they had been passed over for a promotion at the poultry
plant where they worked because of their race. As a way to show that the defendant’s asserted
reasons for refusing to promote them were pretextual, the plaintiffs presented evidence that their
“qualifications were superior to those of the two successful applicants.” 46 The Eleventh Circuit 47
found this evidence insufficient as a matter of law, and held that pretext “can be established
through comparing qualifications only when ‘the disparity in qualifications is so apparent as to
virtually jump off the page and slap you in the face.’” 48
In vacating the judgment of the appeals court, the Supreme Court rejected the Eleventh Circuit’s
“jump off the page standard” 49 and affirmed its earlier holdings that “qualifications evidence
may suffice, at least in some circumstances, to show pretext.” 50 That the Court declined to define
a precise alternative standard was unfortunate though consistent with earlier decisions that left it
to lower courts to develop case-specific methods for weighing this type of evidence. The Court
did, in dicta, reference alternate formulations of the comparator requirement that are helpful to
plaintiffs. The Court approvingly cited the Ninth Circuit decision in Raad v. Fairbanks North
Star Borough School Dist. 51 and the D.C. Circuit decision in Aka v. Washington Hospital
Center 52 for the proposition that particularly strong evidence that the plaintiff possessed clearly
superior qualifications than the defendant may be enough, standing alone, to show pretext.
45
546 U.S. 454 (2006).
Id. at 456.
47
129 Fed. Appx. 529 (2005).
48
Id. at 533 (Quoting Cooper v. Southern Co., 390 F.3d 695, 732 (11th Cir. 2004)).
49
Ash, 546 U.S. at 457 (“The visual image of words jumping off the page to slap you (presumably a court) in the
face is unhelpful and imprecise as an elaboration of the standard for inferring pretext from superior qualifications.”)
50
Id., citing Patterson, 491 U.S. at 187-88 (1989) (A plaintiff “might seek to demonstrate that respondent’s claim to
have promoted a better qualified applicant was pretextual by showing that she was in fact better qualified than the
person chosen for the position.”), and Burdine, 450 U.S. at 259 (1981) (“The fact that a court may think that the
employer misjudged the qualifications of the applicants does not in itself expose him to Title VII liability, although
this may be probative of whether the employer’s reasons are pretexts for discrimination.”).
51
323 F.3d 1185, 1194 (2003) (“In this Circuit, we have held that a finding ‘that a Title VII plaintiff’s qualifications
were clearly superior to the qualifications of the applicant selected is a proper basis for a finding of
discrimination.’”) (quoting Odima v. Westin Tucson Hotel, 53 F.3d 1484, 1492 (9th Cir. 1995)).
52
156 F.3d 1284, 1294 (1998) (“If a factfinder can conclude that a reasonable employer would have found the
plaintiff to be significantly better qualified for the job, but this employer did not, the factfinder can legitimately infer
that the employer consciously selected a less-qualified candidate—something that employers do not usually do,
unless some other strong consideration, such as discrimination, enters into the picture.”)
46
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IV.
Addressing Other Comparator-Related Issues
A. Plaintiffs Are Not Required To Present Comparator Evidence
Many courts have recognized that plaintiffs should not be compelled at any point to present
comparator evidence, 53 and even courts that apply heightened standards to comparator evidence
accept that presenting such evidence is not required. 54 This conclusion is consistent with the
underlying rationale of a group of employment cases recently decided by the Supreme Court.
In the years following McDonnell Douglas, the Supreme Court generally resisted the urge to
increase the complexity of the prima facie/pretext framework, preferring general standards that
could be applied flexibly based on the circumstances of each individual case. Recent
employment decisions from the Court evince a similar pattern. While the Court has not directly
addressed the issue of comparator evidence as defined above, the Court has in analogous
circumstances refused to impose similarly strict evidentiary rules on plaintiffs in employment
cases.
In Swiekiewicz v. Sorema, N.A., 55 the Court confronted whether a plaintiff must plead “specific
facts establishing a prima facie case of discrimination” 56 under McDonnell Douglas in order to
overcome a motion to dismiss. In concluding that there are no heightened pleading rules
applicable to employment discrimination cases, the Court affirmed that the “precise requirements
of a prima facie case can vary depending on the context,” 57 that the requirements were “never
53
See e.g., Brown v. Henderson, 257 F.3d 246, 253 (2d Cir. 2001) (“Thus, though it is helpful in proving sex
discrimination, we have held that it is not strictly necessary for a plaintiff to identify an employee who was treated
more favorably than the plaintiff and who was similarly situated to the plaintiff, except for being of the opposite
sex.”); Sarullo v. U.S. Post. Serv., 352 F.3d 789, 798 n.7 (3d Cir. 2003) (“[W]e explicitly rejected a requirement that
a plaintiff prove he was replaced by someone outside the protected class to prove a prima facie case of
discrimination. We require only that the plaintiff show that the employer continued to seek out individuals with
similar qualifications after refusing to rehire the plaintiff under circumstances that raise an inference of unlawful
discrimination.”) (internal citations omitted); George v. Leavitt, 407 F.3d 405, 412 (D.C. Cir. 2005) (“One method
by which a plaintiff can satisfy the third prong of this test is by demonstrating that she was treated differently from
similarly situated employees who are not part of the protected class. But this is not the only way.”) (internal citations
omitted); Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997) (In cases where the plaintiff fails to present
evidence of a similarly situated employee, summary judgment is appropriate “when no other evidence of
discrimination is present.”) (Internal citations omitted).
54
See e.g., Rodgers v. U.S. Bank, N.A., 417 F.3d 845, 859 n.9 (8th Cir. 2005) (“Of course, a discharged employee
need not rely on comparisons with similarly situated employees to prove unlawful discrimination. For example, to
make a prima facie case under the McDonnell Douglas framework, the employee may produce evidence that her
position remained open after the discharge and ultimately was filled by a person of a different race. Or an employee
could attempt to prove race discrimination through direct evidence in the form of actions or remarks by the
employer that reflect discriminatory intent.”) (internal citations omitted).
55
534 U.S. 506 (2002).
56
Id. at 508.
57
Id. at 512.
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intended to be rigid, mechanized or ritualistic,” 58 and that the “prima facie proof required from a
respondent is not necessarily applicable in every respect to differing factual situations.” 59 In
support of its ruling, the Court relied on the fact that not all plaintiffs will need to use the
McDonnell Douglas framework to prove discrimination. As the Court said, it would be
“incongruous to require a plaintiff, in order to survive a motion to dismiss, to plead more facts
than he may ultimately need to prove to succeed on the merits if direct evidence of
discrimination is uncovered.” 60
One year later, the Court decided Desert Palace, Inc. v. Costa, 61 which resolved whether a
plaintiff must present “direct” evidence of discrimination in order to invoke the “motivating
factor” standard under Title VII. 62 In holding that plaintiffs need not present any particular type
of evidence to prove their case under Title VII, the Court pointed out that absent any specific
evidentiary requirements in the statute itself, plaintiffs may prove their case “by a preponderance
of the evidence,” 63 whether “direct or circumstantial.” 64 The Court affirmed the value of
circumstantial evidence, reasoning that it is “not only sufficient, but may also be more certain,
satisfying and persuasive than direct evidence,” 65 and that the law should generally not make any
distinctions between the weight accorded to evidence based on whether it is deemed direct or
circumstantial.
Finally, in 2008, the Court decided Sprint v. Mendelsohn. 66 In Sprint, the Court addressed the
issue of “other supervisor” evidence. In this case, alleging age discrimination, the plaintiff tried
to introduce evidence from co-workers in other departments that their supervisors had
discriminated against them because of age. The district court excluded the evidence as irrelevant
under Federal Rule of Evidence (FRE) 401 and unduly prejudicial under FRE 403. 67 In
remanding to the district court, the Supreme Court stated that “[r]elevance and prejudice under
Rules 401 and 403 are determined in the context of the facts and arguments in a particular case,
and thus are generally not amenable to broad per se rules.” 68 Further, the Court held that
“whether evidence of discrimination by other supervisors is relevant in an individual ADEA case
58
Id. (Quoting Furnco, 438 U.S. at 577).
Id. (Quoting McDonnell Douglas, 411 U.S. at 802 n.13).
60
Id. at 511-12.
61
539 U.S. 90 (2003).
62
42 U.S.C. § 2000e-2(m) (“Except as otherwise provided in this subchapter, an unlawful employment practice is
established when the complaining party demonstrates that race, color, religion, sex or national origin was a
motivating factor for any employment practice, even though other factors also motivated the practice.”).
63
Desert Palace, 539 U.S. at 99 (Quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 253 (1989)).
64
Id. (Quoting Aikens, 460 U.S. at 714 n.3 (1983).
65
Id. at 100 (Quoting Rogers v. Mo. Pac. R. Co., 352 U.S. 500, 508 n.17 (1957)).
66
552 U.S. 379 (2008).
67
Id. at 382.
68
Id. at 387.
59
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is fact based and depends on many factors, including how closely related the evidence is to the
plaintiff’s circumstances and theory of the case.” 69
There are a variety of lessons to be drawn from these cases. First and foremost, the Supreme
Court in each case rejected the notion that plaintiffs are required to submit any particular type or
form of evidence to prove a discrimination claim. Swierkiewicz expressly affirmed the early line
of Supreme Court cases that refused to accept an unnecessarily strict conception of McDonnell
Douglas. Desert Palace took this reasoning further, and swept away the direct/indirect evidence
dichotomy that many courts applied in employment discrimination cases after Price Waterhouse.
Finally, and perhaps most important of all, the analysis in Sprint affirmed that it is the plaintiffs
who control the direction of an employment case, and the relevance of or weight accorded to any
particular evidence is dictated by the plaintiffs’ theory of liability. That includes the potential
probative value of any comparator evidence.
B. The Plaintiff Should Never Be Required To Present “Identical”
Comparators
The strictest comparator standard—the “nearly identical” requirement—is still applied in a
minority of circuits, 70 but courts in other circuits do not appear eager to adopt it. And while the
standard is difficult to satisfy, as well as to reconcile with the “comparable seriousness” standard
from McDonnell Douglas, 71 even those courts applying the “nearly identical” standard have
made some efforts to refine it in ways that can help plaintiffs. For example, in Lee v. Kan. City S.
Ry., 72 the Fifth Circuit took pains to assert that “nearly identical” does not mean “identical,”
because such a standard could not be satisfied. 73 Consequently, defendants may not point to just
any differences between the plaintiff and potential comparators, they must show that the
differences actually account for the differential treatment. 74
69
Id. at 388.
The roots of the “nearly identical” requirement can be traced at least as far back as the Fifth Circuit decision in
Davin v. Delta Air Lines, Inc., 678 F.2d 567, 570 (1982), which held that the female plaintiff had the burden of
showing “that the misconduct for which she was discharged was nearly identical to that engaged in by a male
employee” who was retained.
71
See e.g., Lee v. Kan. City S. Ry., 574 F.3d 253, 261 n.25 (5th Cir. 2009) (“[The plaintiff] Lee perceives tension in
our case law between the ‘nearly identical’ standard . . . and the ‘comparable seriousness’ standard explicated by the
Supreme Court in McDonald v. Santa Fe Trail Trans. Co., 427 U.S. 273, 283 n.11, (1976) (quoting McDonnell
Douglas, 411 U.S. at 804 (1973)). We emphasize today that this Circuit’s ‘nearly identical’ standard is not
equivalent to ‘identical.’”)
72
Id.
73
Id. at 260 (“Applied to the broader circumstances of a plaintiff’s employment and that of his proffered
comparator, a requirement of complete or total identity rather than near identity would be essentially
insurmountable, as it would only be in the rarest of circumstances that the situations of two employees would be
totally identical.”)
74
Id.
70
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In the rest of the circuits, the “similarly situated” inquiry is generally more straightforward. As
the Sixth Circuit recently opined in Bobo v. U.P.S., Inc., 75 referring to the Supreme Court’s
language from McDonnell Douglas:
Contrary to the holding below, Bobo was not required to demonstrate an exact
correlation between himself and others similarly situated; rather, he had to show
only that he and his proposed comparators were similar in all relevant respects,
and that he and his proposed comparators engaged in acts of comparable
seriousness. 76
In Miller-El v. Dretke, 77 the Supreme Court addressed the issue of comparators in a different,
though analogous context. The petitioner in Miller-El challenged his criminal conviction on the
grounds that the prosecutors in his case discriminated against potential jurors based on race in
violation of Batson v. Kentucky. 78 In addition to statistical evidence of bias, 79 Miller-El presented
evidence that some of the prosecutors’ asserted reasons for striking some of the black potential
jurors applied equally to whites who eventually served on the jury.
The majority opinion accepted that some of the black panelists who were struck were similarly
situated to non-black jurors, even though in comparing them, the majority found both “strong
similarities as well as some differences.” 80 The dissent argued that such comparisons were not
valid unless all of the prosecutors’ asserted reasons for striking a black panelist applied equally
to a non-black who was allowed to serve on the jury. The majority responded to this suggestion
by asserting:
None of our cases announces a rule that no comparison is probative unless the
situation of the individuals compared is identical in all respects, and there is no
reason to accept one. . . . A per se rule that a defendant cannot win a Batson claim
unless there is an exactly identical white juror would leave Batson inoperable;
potential jurors are not products of a set of cookie cutters. 81
75
665 F.3d 741 (6th Cir. 2012).
Id. at 751.
77
545 U.S. 231 (2005).
78
476 U.S. 79 (1986).
79
In Miller-El’s case, the prosecutors used peremptory strikes to remove 91% of the eligible black jurors. Miller-El,
545 U.S. at 241.
80
Id. at 247.
81
Id. (citations omitted).
76
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As proving a Batson claim requires proving “discrimination by the prosecutor in selecting the
defendant’s jury,” 82 the above reasoning is equally applicable in an employment discrimination
case. The Sixth Circuit affirmed as much in Wright v. Murray Guard, Inc. 83 In Wright, the court
recognized that the analysis in Miller-El was indistinguishable from the Sixth Circuit’s rule in
employment cases that a “plaintiff need not demonstrate an exact correlation with the employee
receiving more favorable treatment in order for the two to be considered ‘similarly situated.’” 84
The court therefore held that the Miller-El reasoning “applies with equal force to the
employment-discrimination context.” 85
C. The “Similarly Situated” Inquiry Is Best Left To A Jury
Consistent with the Supreme Court’s holding in Reeves v. Sanderson Plumbing, 86 some courts
have recognized that the appropriate way to harmonize the rules governing comparators and the
rules governing summary judgment is to allow juries to resolve the issue. For example, the
Seventh Circuit recently held that “[w]hether a comparator is similarly situated is ‘usually a
question for the fact-finder,’ and summary judgment is appropriate only when ‘no reasonable
fact-finder could find that plaintiffs have met their burden on the issue.’” 87
In Reeves, the Court resolved whether a plaintiff must do more than prove pretext in order to
sustain a jury verdict in an age discrimination case. In finding that a plaintiff’s prima facie case,
combined with “sufficient evidence to reject the employer’s explanation,” 88 permits a court to
rule for the plaintiff, the Court affirmed that at summary judgment, lower courts must leave
“[c]redibility determinations, the weighing of evidence, and the drawing of legitimate inferences
from the facts” 89 to the jury, and must “disregard all evidence favorable to the moving party that
the jury is not required to believe.”
In sustaining the jury verdict, the Court pointed to a variety of different types of evidence that
assisted in this inquiry, including comments and other harsh treatment from supervisors, 90 in
addition to evidence that the plaintiff’s co-workers received more favorable treatment. While
82
Id. at 236.
455 F.3d 702 (6th Cir. 2006).
84
Id. at 709-10 (quoting Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998)).
85
Id. at 710 (quoting Miller-El, 545 U.S. at 247).
86
530 U.S. 133 (2000).
87
Coleman v. Donahoe, 667 F.3d 835, 846-47 (7th Cir. 2012) (quoting Srail v. Village of Lisle, 588 F.3d 940, 945
(7th Cir. 2009)).
88
Id. at 149.
89
Reeves at 150-51 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)).
90
Id. at 151. For example, the plaintiff’s supervisor at one point told the plaintiff that he “was so old [he] must have
come over on the Mayflower,” that he “was too damn old to do his job,” and that the supervisor would regularly
“cuss at [the plaintiff] and shake his finger in [the plaintiff’s] face.”
83
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Reeves was a firing case, the discussion about evaluating evidence at summary judgment is
relevant to all employment discrimination cases regardless of the underlying theory of liability.
V.
Model Briefing
Below is model brief language, which practitioners are encouraged to adapt and use as
appropriate in their cases. 91
Comparator Evidence Is Not Required
The relevance and probative value of a certain type of evidence in a given case is
“determined in the context of the facts and arguments in a particular case, and
thus [is] generally not amenable to broad per se rules.” Sprint/United Mgmt. Co.
v. Mendelsohn, 552 U.S. 379, 387 (2008). There are a variety of means by which
one can prove discrimination, and whether the plaintiff is presenting a prima facie
case of discrimination or proving pretext, “a discharged employee need not rely
on comparisons with similarly situated employees to prove unlawful
discrimination.” Rodgers v. U.S. Bank, N.A., 417 F.3d 845, 859 n.9 (8th Cir.
2005) (Colloton, J., concurring) (internal citations omitted). Many courts have
“explicitly rejected a requirement that a plaintiff prove he was replaced by
someone outside the protected class to prove a prima facie case of
discrimination.” Sarullo v. U.S. Post. Serv., 352 F.3d 789, 798 n.7 (3d Cir. 2003)
(internal citations omitted). “One method by which a plaintiff can [show pretext]
is by demonstrating that she was treated differently from similarly situated
employees who are not part of the protected class. But this is not the only way.”
George v. Leavitt, 407 F.3d 405, 412 (D.C. Cir. 2005) (internal citations omitted).
Comparator Proof At Summary Judgment
Deciding on the probative value of circumstantial evidence of discrimination,
including comparator evidence, requires drawing a series of inferences. At
summary judgment “the drawing of legitimate inferences from the facts are jury
functions, not those of a judge.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986), and those inferences “must be viewed in the light most favorable to
the party opposing the motion.” U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962).
“The advantages of trial before a live jury with live witnesses, and all the
possibilities of considering the human factors, should not be eliminated by
91
This section is intended to stand independently from the rest of the article, and as such will appear to repeat many
points already discussed. The goal of this section is not to provide additional analysis, but instead to re-package
some of what has already been discussed in a form more appropriate for a brief. It is imperative that the reader
carefully examine the suggested model briefing language to ensure that it will be valuable based on the relevant
facts of the reader’s particular case. It is also imperative that in using this model language the user take great care in
adapting the language to the facts of their case. As always, users should fully check and update the research
provided here before publishing it for their own purposes.
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substituting trial by affidavit and the sterile bareness of summary judgment.”
Adickes v. S.H. Kress & Co., 398 U.S. 144, 176 (1970) (Black, J. concurring).
“Trial by affidavit is no substitute for trial by jury which so long has been the
hallmark of ‘even handed justice.’” Poller v. Columbia Broadcasting Sys. Inc.,
368 U.S. 464, 473 (1962).
The inquiry into whether comparators are similarly situated “is flexible, commonsense, and factual. It asks ‘essentially, are there enough common features between
the individuals to allow a meaningful comparison?’” Coleman v. Donahoe, 667
F.3d 835, 840 (7th Cir. 2012) (quoting Humphries v. CBOCS West, Inc., 474 F.3d
387, 405 (7th Cir. 2007)). This is “‘usually a question for the fact-finder,’ and
summary judgment is appropriate only when ‘no reasonable fact-finder could find
that plaintiffs have met their burden on the issue.’” Coleman at 846-47 (quoting
Srail v. Village of Lisle, 588 F.3d 940, 945 (7th Cir. 2009)).
Comparator Evidence Can Be Relevant To Both The Prima Facie Case And
Pretext Inquiry
The burden-shifting framework originally developed in McDonnell Douglas
Corp. v. Green was designed to address the fact that “[t]here will seldom be
‘eyewitness’ testimony as to the employer’s mental processes.” U.S. Post. Serv.
Bd. of Governors v. Aikens, 460 U.S. 711, 716 (1983). This method “was never
intended to be rigid, mechanized, or ritualistic. Rather, it is merely a sensible,
orderly way to evaluate the evidence in light of common experience as it bears on
the critical question of discrimination.” Furnco Construction Corp. v. Waters, 438
U.S. 567, 577 (1978). When presenting her prima facie case, the plaintiff’s
burden is “not onerous,” Tex. Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253
(1981), and because “the facts will necessarily vary” from claim to claim, no
single formula for presenting a prima facie case will be “applicable in every
respect to differing factual situations.” McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802 n.13 (1973). The plaintiff must merely present evidence that the
adverse action occurred “under circumstances which give rise to an inference of
unlawful discrimination.” Tex. Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248,
253 (1981).
While producing a non-discriminatory reason for its actions rebuts the
presumption created by the prima facie case, the prima facie and pretext inquiries
“are not hermetically sealed off from one another.” Coleman v. Donahoe, 667
F.3d 835, 858 (7th Cir. 2012). The plaintiff’s comparator evidence, “and
inferences properly drawn therefrom may be considered by the trier of fact on the
issue of whether the defendant’s explanation is pretextual.” 92 Tex. Dept. of Cmty.
Affairs v. Burdine, 450 U.S. 248, 255 n.10 (1981).
92
See also Hawn v. Executive Jet Management, Inc., 615 F.3d 1151, 1158 (9th Cir. 2010) (holding that comparator
evidence may be relevant to both the prima facie inquiry and the question of pretext); Graham v. Long Island R.R.,
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Use Of Comparative Proof To Show Pretext
Even if the defendant produces a non-discriminatory reason for its actions, the
plaintiff must have “the opportunity to demonstrate that the proffered reason was
not the true reason for the employment decision,” and that the reason is a pretext
for discrimination. She “may succeed in this either directly by persuading the
court that a discriminatory reason more likely motivated the employer or
indirectly by showing that the employer’s proffered explanation is unworthy of
credence.” Tex. Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981).
“Thus, a plaintiff’s prima facie case, combined with sufficient evidence to find
that the employer’s asserted justification is false, may permit the trier of fact to
conclude that the employer unlawfully discriminated.” Reeves v. Sanderson
Plumbing Prods., 530 U.S. 133, 148 (2000). 93
Inferring the defendant’s unlawful motive from the fact that its explanation is
unpersuasive “is consistent with the general principle of evidence law that the
factfinder is entitled to consider a party’s dishonesty about a material fact as
‘affirmative evidence of guilt.’” Reeves v. Sanderson Plumbing Prods., 530 U.S.
133, 147 (2000) (quoting Wright v. West, 505 U.S. 277, 296 (1992)). Therefore,
the inference may be particularly strong if the factfinder’s disbelief of the
defendant’s reasons “is accompanied by a suspicion of mendacity.” St. Mary’s
Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993).
The plaintiff can make this showing using direct or circumstantial evidence. U.S.
Post. Serv. Bd. of Governors v. Aikens, 460 U.S. 711 n.3 (1983). In fact,
circumstantial evidence is often “more certain, satisfying and persuasive than
direct evidence.” Desert Palace, Inc. v. Costa, 539 U.S. 90, 100 (2003) (quoting
Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 508, n.17 (1957)). However,
“[s]he may not be forced to pursue any particular means of demonstrating that
respondent’s stated reasons are pretextual.” Patterson v. McLean Credit Union,
491 U.S. 164, 188 (1989).
While the U.S. Supreme Court has declined to require any particular form of
evidence in showing pretext, it has repeatedly affirmed that comparator evidence
can be probative of pretext in a variety of contexts. In McDonnell Douglas, a
firing/refusal to rehire case, the Court suggested that “evidence that [other
employees outside the plaintiff’s protected class] involved in acts of comparable
seriousness” to the plaintiff’s conduct would be “especially relevant” to showing
that the employer’s alleged reason for the adverse action “was in fact pretext.”
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Later, in Burdine,
230 F.3d 34, 43 (2d Cir. 2000) (same); and EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1195 n.6 (10th
Cir. 2000) (same).
93
In Tex. Dept. of Cmty. Affairs v. Burdine, the Supreme Court assumed that this inquiry was best left for trial.
“[T]here may be some cases where the plaintiff’s initial evidence, combined with effective cross-examination of the
defendant, will suffice to discredit the defendant’s explanation.” 450 U.S. 248, 255 n.10 (1981).
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the Court stated that in proving pretext, the plaintiff may “demonstrate that
similarly situated employees were not treated equally.” Tex. Dept. of Cmty.
Affairs v. Burdine, 450 U.S. 248, 258 (1981) (quoting McDonnell Douglas, 411
U.S. at 804). The Court, however, cautioned that “precise equivalence in
culpability” between comparators is not necessary to proving pretext; showing
“comparable seriousness” is sufficient to plead an inferential case of
discrimination. McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 283 n.11
(1976). “As the Supreme Court recently held in the context of a claim of racebased peremptory strikes of jurors, ‘a rule that no comparison [among prospective
jurors] is probative unless the situation of the individuals compared is identical in
all respects’ would make claims of discrimination ‘inoperable,’ because ‘potential
jurors are not products of a set of cookie cutters.’ This reasoning applies with
equal force to the employment-discrimination context.” Wright v. Murray Guard,
Inc., 455 F.3d 702, 710 (6th Cir. 2006) (quoting Miller-El v. Dretke, 545 U.S.
231, 247 (2005)).
In an analogous situation, the Court has also affirmed that evidence that the
defendant hired a less qualified person than the plaintiff is valuable evidence of
pretext. In hiring/promotion cases, the plaintiff “might seek to demonstrate that
respondent’s claim to have promoted a better qualified applicant was pretextual
by showing that she was in fact better qualified than the person chosen for the
position,” Patterson v. McLean Credit Union, 491 U.S. 164, 187-88 (1989), and
“qualifications evidence may suffice, at least in some circumstances, to show
pretext.” Ash v. Tyson Foods, Inc., 546 U.S. 454, 457 (2006). “The fact that a
court may think that the employer misjudged the qualifications of the applicants
does not in itself expose him to Title VII liability, although this may be probative
of whether the employer’s reasons are pretexts for discrimination.” Tex. Dept. of
Cmty. Affairs v. Burdine, 450 U.S. 248, 259 (1981).
Addressing “Identical Comparator” Standards
The Supreme Court has held that “precise equivalence in culpability between
employees is not the ultimate question” in an employment case. McDonald v.
Santa Fe Trail Transp. Co., 427 U.S. 273, 283 n.11 (1976). Even in a case in
which it applied the “identical comparator” standard, the Eleventh Circuit
cautioned that “‘[n]early identical,’ however, does not mean ‘exactly identical.’ A
range of comparators may satisfy this standard.” McCann v. Tillman, 526 F.3d
1370, 1374 n.4 (11th Cir. 2008). Therefore, the plaintiff is “not required to
demonstrate an exact correlation between himself and others similarly situated,”
Bobo v. U.P.S., Inc., 665 F.3d 741, 751 (6th Cir. 2012), in order to prove
discrimination. “As the Supreme Court recently held in the context of a claim of
race-based peremptory strikes of jurors, ‘a rule that no comparison [among
prospective jurors] is probative unless the situation of the individuals compared is
identical in all respects’ would make claims of discrimination ‘inoperable,’
because ‘potential jurors are not products of a set of cookie cutters.’ This
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reasoning applies with equal force to the employment-discrimination context.”
Wright v. Murray Guard, Inc., 455 F.3d 702, 710 (6th Cir. 2006) (quoting MillerEl v. Dretke, 545 U.S. 231, 247 (2005)).
VI.
Conclusion
In many cases, circumstantial evidence will be more powerful and persuasive than any other type
of available evidence. In discrimination cases, where defendants rarely leave behind “smoking
guns,” comparator evidence is a form of circumstantial evidence that can be particularly useful in
exposing the ways in which bias has infected the decision-making process. While presenting
comparator evidence should never be a requirement for proving discrimination, in those cases
where the plaintiff offers comparator evidence, courts should retain the flexible standards for
evaluating that evidence laid down by the Supreme Court in the early cases interpreting Title
VII, and allow disputes about the strength of the comparator evidence to be resolved by a jury.
VII.
Case List
The following section contains a list of excerpts from both cases and briefs addressing issues
related to comparator evidence arranged by topic and circuit. As with the model briefing, much
of the material listed below was referenced in the narrative section of this article, and has been
included in this alternate format to allow the reader to locate and extract the authority that is
most relevant to the issue(s) being briefed and the jurisdiction in which the reader practices. As
with the model briefing language, the reader should review any sources carefully before using
them.
The Plaintiff Does Not Need To Present Comparator Evidence To Prove Discrimination
A. Second Circuit
•
“In other words, what matters in the end is not how the employer treated other
employees, if any, of a different sex, but how the employer would have treated the
plaintiff had she been of a different sex.” (Citations omitted and emphasis in original).
Brown v. Henderson, 257 F.3d 246, 253-54 (2d Cir. 2001).
B. Third Circuit
•
“The defendants suggest that the fourth element requires a showing that ‘other similarly
situated employees outside [Sarullo’s] protected class were more favorably treated under
similar circumstances.’ While a number of our decisions suggest such a showing was
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required in the past, see, e.g., Lawrence v. Nat’l. Westminster Bank, 98 F.3d 61, 68 (3d
Cir. 1996) (plaintiff must prove he/she was replaced by person outside protected class to
create an inference of discrimination), that is not the current law in this or the majority of
the circuits. In Pivirotto, we explicitly rejected a requirement that a plaintiff prove he was
replaced by someone outside the protected class to prove a prima facie case of
discrimination. We require only that the plaintiff show that the employer continued to
seek out individuals with similar qualifications after refusing to rehire the plaintiff under
circumstances that raise an inference of unlawful discrimination.” Sarullo v. U.S. Post.
Serv., 352 F.3d 789, 798 n.7 (3d Cir. 2003) (internal citations omitted).
•
“By contrast, a plaintiff’s inability to prove that she was replaced by someone outside of
her class is not necessarily inconsistent with her demonstrating that the employer treated
her ‘less favorably than others because of [her] race, color, religion, sex, or national
origin.’ Even if the plaintiff was replaced by someone within her own class, this simply
demonstrates that the employer is willing to hire people from this class—which in the
present context is presumably true of all but the most misogynistic employer—and does
not establish that the employer did not fire the plaintiff on the basis of her protected
status.” Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 353 (3d Cir. 1999) (internal
citations omitted).
C. Seventh Circuit
•
“What is true is that if a plaintiff has only the McDonnell Douglas formula to stave off
summary judgment—if he has no other evidence of discrimination—he must show that
another, and similarly situated, employee . . . was treated more favorably than he.”
Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1398 (7th Cir. 1997).
•
“But the judge was wrong to think that evidence either of replacement or of more
favorable treatment of a similarly situated employee was essential to Wallace’s case. It
was essential to Wallace’s McDonnell Douglas approach but it is not an ingredient of the
statute. If an American employee is mistreated because he is American, the fact that
Japanese employees are also treated badly would not be a defense. The Americans might
be better employees, yet, because of discrimination, treated no better. That would be
actionable discrimination.” Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1398 (7th
Cir. 1997).
•
When, due to the uniqueness of the plaintiff’s position within the organization, there is an
insufficient pool of potentially comparable employees to consider for purposes of the
usual similarly-situated analysis, courts should relax the requirement, look more broadly
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for comparator employees, and should be more lenient in allowing comparisons. Smith v.
Office of the Chief Judge, 559 F.3d 706, 719 (7th Cir. 2009); McNabola v. Chicago
Transit Authority, 10 F.3d 501, 514 (7th Cir. 1993); Wei v. Chicago State University,
2003 WL 22048081, at *7 (N.D. Ill. 2003).
D. Eighth Circuit
•
“Of course, a discharged employee need not rely on comparisons with similarly situated
employees to prove unlawful discrimination. For example, to make a prima facie case
under the McDonnell Douglas framework, the employee may produce evidence that her
position remained open after the discharge and ultimately was filled by a person of a
different race. Or an employee could attempt to prove race discrimination through direct
evidence in the form of actions or remarks by the employer that reflect discriminatory
intent.” Rodgers v. U.S. Bank, N.A., 417 F.3d 845, 859 n.9 (8th Cir. 2005) (Colloton, J.,
concurring) (internal citations omitted).
E. Tenth Circuit
•
“Nothing in the case law in this circuit requires a plaintiff to compare herself to similarly
situated co-workers to satisfy the fourth element of her prima facie case.” EEOC v.
Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1195 n.6 (10th Cir. 2000). While “it is
certainly sufficient to establish a prima facie case,” it is not necessary. Id.
•
In Morales v. McKesson Health Solutions, 136 Fed. Appx. 115, 118 (10th Cir. 2005), the
plaintiff alleged that she was terminated because of her religious beliefs. The district
court dismissed the claim on summary judgment. On appeal, the Tenth Circuit
specifically found that the district court erred in requiring the plaintiff to demonstrate that
similarly situated employees were treated differently. Id. (summary judgment was upheld
because the plaintiff did not establish pretext). The Court reiterated that the Tenth Circuit
does not require a plaintiff to use comparators to satisfy the fourth element of the prima
facie case. Id.
•
When a city denied a zoning permit for a residential treatment facility for young people
with mental and emotional disorders, the plaintiffs sued the city under the ADA, as well
as the Fair Housing Act and the Rehabilitation Act. Cinnamon Hills Youth Crisis Center
v. St. George City, 685 F.3d 917, 919 (10th Cir. 2012). Applying the McDonnell Douglas
burden shifting regime, the Court found that if the plaintiff could not point to similarly
situated non-disabled residence applicants, the plaintiff could still prove his prima facie
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case with circumstantial evidence that supports a reasonable inference of discrimination.
Id. at 920.
F. Eleventh Circuit
•
“If a plaintiff fails to show the existence of a similarly situated employee, summary
judgment is appropriate where no other evidence of discrimination is present.” Holifield
v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997).
G. D.C. Circuit
•
“One method by which a plaintiff can [show pretext] is by demonstrating that she was
treated differently from similarly situated employees who are not part of the protected
class. But this is not the only way.” George v. Leavitt, 407 F.3d 405, 412 (D.C. Cir. 2005)
(internal citations omitted).
Comparator Evidence Should Be Evaluated By The Jury
A. Second Circuit
•
“Whether two employees are similarly situated ordinarily presents a question of fact for
the jury.” Graham v. Long Island R.R., 230 F.3d 34, 39 (2nd Cir. 2000).
B. Sixth Circuit
•
“But whether the other identified supervisors who did not admit misconduct are similarly
situated to Bobo is a jury question.” Bobo v. U.P.S., Inc., 665 F.3d 741, 757 (6th Cir.
2012).
C. Seventh Circuit
•
“Whether a comparator is similarly situated is ‘usually a question for the fact-finder,’ and
summary judgment is appropriate only when ‘no reasonable fact-finder could find that
plaintiffs have met their burden on the issue.’” Coleman v. Donahoe, 667 F.3d 835, 84647 (7th Cir. 2012) (quoting Srail v. Village of Lisle, 588 F.3d 940, 945 (7th Cir. 2009)).
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D. D.C. Circuit
•
“Whether two employees are similarly situated ordinarily presents a question of fact for
the jury.” George v. Leavitt, 407 F.3d 405, 412 (D.C. Cir. 2005) (quoting Graham v.
Long Island R.R., 230 F.3d 34, 39 (2nd Cir. 2000)).
Plaintiffs Need Not Present Evidence Of “Identical Comparators”
A. Fifth Circuit
•
“[The plaintiff] Lee perceives tension in our case law between the ‘nearly identical’
standard . . . and the ‘comparable seriousness’ standard explicated by the Supreme Court
in McDonald v. Santa Fe Trail Trans. Co., 427 U.S. 273, 283 n.11, (1976) (quoting
McDonnell Douglas, 411 U.S. at 804 (1973)). We emphasize today that this Circuit’s
‘nearly identical’ standard is not equivalent to ‘identical.’” Lee v. Kan. City S. Ry., 574
F.3d 253, 261 n.25 (5th Cir. 2009).
B. Sixth Circuit
•
“As the Supreme Court recently held in the context of a claim of race-based peremptory
strikes of jurors, ‘a rule that no comparison [among prospective jurors] is probative
unless the situation of the individuals compared is identical in all respects’ would make
claims of discrimination ‘inoperable,’ because ‘potential jurors are not products of a set
of cookie cutters.’ This reasoning applies with equal force to the employmentdiscrimination context.” Wright v. Murray Guard, Inc., 455 F.3d 702, 710 (6th Cir. 2006)
(quoting Miller-El v. Dretke, 545 U.S. 231, 247 (2005)).
C. Seventh Circuit
•
“True, unlike [the plaintiff], [the proposed comparator] was not accused of using
profanity in front of a resident. But the similarly situated co-worker inquiry is a search for
a substantially similar employee, not for a clone.” Chaney v. Plainfield Healthcare Ctr.,
612 F.3d 908, 916 (7th Cir. 2010).
•
“In other words, the inquiry simply asks whether there are sufficient commonalities on
the key variables between the plaintiff and the would-be comparator to allow the type of
comparison that, taken together with the other prima facie evidence, would allow a jury
to reach an inference of discrimination or retaliation—recall that the plaintiff need not
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prove anything at this stage.” Humphries v. CBOCS West, Inc., 474 F.3d 387, 405 (7th
Cir. 2007).
The Probative Value Of Comparator Evidence Will Vary Based On The Plaintiff’s
Theory Of Liability
A. Supreme Court
•
“Relevance and prejudice under Rules 401 and 403 are determined in the context of the
facts and arguments in a particular case, and thus are generally not amenable to broad per
se rules. See Advisory Committee’s Notes on Fed. Rule Evid. 401, 28 U.S.C. App., p.
864 (‘Relevancy is not an inherent characteristic of any item of evidence but exists only
as a relation between an item of evidence and a matter properly provable in the case’).”
Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 387 (2008).
B. Seventh Circuit
•
“[W]e reiterate here that the similarly-situated inquiry is flexible, common-sense, and
factual. It asks ‘essentially, are there enough common features between the individuals to
allow a meaningful comparison?’” Coleman v. Donahoe, 667 F.3d 835, 840 (7th Cir.
2012) (quoting Humphries v. CBOCS West, Inc., 474 F.3d 387, 405 (7th Cir. 2007)).
December 2012
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