Lewis v. City of Union City

• Decision Date: 21 March 2019
• Docket Number: No. 15-11362,15-11362
• Citation: 918 F.3d 1213
• Parties: Jacqueline LEWIS, Plaintiff-Appellant, v. CITY OF UNION CITY, GEORGIA, Chief of Police Charles Odom, in his official and individual capacities, Defendant -Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

918 F.3d 1213

Jacqueline LEWIS, Plaintiff-Appellant,

v.CITY OF UNION CITY, GEORGIA, Chief of Police Charles Odom, in his official and individual capacities, Defendant -Appellees.

No. 15-11362

United States Court of Appeals, Eleventh Circuit.

March 21, 2019

Cheryl Barnes Legare, Legare Attwood & Wolfe, LLC, DECATUR, GA, Brian J. Sutherland, Buckley Beal, LLP, ATLANTA, GA, for Plaintiff - Appellant.

Sharon P. Morgan, Tracy Lynn Glanton, Elarbee Thompson Sapp & Wilson, LLP, ATLANTA, GA, for Defendant - Appellee.

Lisa Catherine Lambert, Law Office of Lisa C. Lambert, ATLANTA, GA, for Amicus Curiae GEORGIA, FLORIDA AND ALABAMA CHAPTERS OF NATIONAL EMPLOYMENT LAWYERS ASSOCIATION.

ON PETITION FOR REHEARING

Before ED CARNES, Chief Judge, TJOFLAT, MARCUS, WILSON, WILLIAM PRYOR, MARTIN, JORDAN, ROSENBAUM, JILL PRYOR, NEWSOM, BRANCH, and GRANT, Circuit Judges.

NEWSOM, Circuit Judge, delivered the opinion of the Court, in which ED CARNES, Chief Judge, TJOFLAT, MARCUS, WILSON, WILLIAM PRYOR, JORDAN, BRANCH, and GRANT, Circuit Judges, joined.

NEWSOM, Circuit Judge:

Faced with a defendant’s motion for summary judgment, a plaintiff asserting an intentional-discrimination claim under Title VII of the Civil Rights Act of 1964, the Equal Protection Clause, or 42 U.S.C. § 1981 must make a sufficient factual showing to permit a reasonable jury to rule in her favor. She can do so in a variety of ways, one of which is by navigating the now-familiar three-part burden-shifting framework established by the Supreme Court in McDonnell Douglas Corp. v. Green , 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under that framework, the plaintiff bears the initial burden of establishing a prima facie case of discrimination by proving, among other things, that she was treated differently from another "similarly situated" individual–in court-speak, a "comparator." Texas Dep’t of Cmty. Affairs v. Burdine , 450 U.S. 248, 258–59, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) (citing McDonnell Douglas , 411 U.S. at 804, 93 S.Ct. 1817 ). The obvious question: Just how "similarly situated" must a plaintiff and her comparator(s) be?

To date, our attempts to answer that question have only sown confusion. In some cases, we have required a proper comparator to be "nearly identical" to the plaintiff. See , e.g. , Nix v. WLCY Radio/Rahall Commc’ns , 738 F.2d 1181, 1185 (11th Cir. 1984) (citations omitted). In others, we have expressly rejected a nearly-identical standard. See, e.g. , Alexander v. Fulton Cty ., 207 F.3d 1303, 1333–34 (11th Cir. 2000). In still others, without even mentioning the nearly-identical benchmark, we have deemed it sufficient that the plaintiff and the comparator engaged in the "same or similar" conduct. See, e.g. , Holifield v. Reno , 115 F.3d 1555, 1562 (11th Cir. 1997) (per curiam). And to make matters worse, in still others we have applied both the nearly-identical and same-or-similar standards simultaneously. See, e.g. , Maniccia v. Brown , 171 F.3d 1364, 1368 (11th Cir. 1999). It’s a mess.

In an effort to clean up, and to clarify once and for all the proper standard for comparator evidence in intentional-discrimination cases, we took this case en banc and instructed the parties to address the following issue:

The Supreme Court has held that in order to make out a prima facie case of discrimination under Title VII of the Civil Rights Act of 1964, the Equal Protection Clause of the Fourteenth Amendment, or 42 U.S.C. § 1981, a plaintiff must prove, among other things, that she was treated differently from another "similarly situated" individual. What standard does the phrase "similarly situated" impose on the plaintiff: (1) "same or similar," (2) "nearly identical," or (3) some other standard?

Our plaintiff-appellant’s position is twofold. First, as a procedural matter, she urges us to "move" any qualitative analysis of comparator evidence out of the initial prima facie stage of the McDonnell Douglas analysis, where it historically has resided, and into the third-tier pretext stage. Second, as a substantive matter, she contends that we should jettison both the same-or-similar and nearly-identical tests in favor of what she calls a "flexible, common-sense" standard, which the Seventh Circuit seems to have embraced: "So long as the distinctions between the plaintiff and the proposed comparators are not ‘so significant that they render the comparison effectively useless,’ the similarly-situated requirement is satisfied." Appellant’s En Banc Br. at 34 (quoting Coleman v. Donahoe , 667 F.3d 835, 846 (7th Cir. 2012) ).

Not surprisingly, the defendants-appellees see things differently. First, they insist that the comparator evaluation should remain part of the prima facie stage of the McDonnell Douglas analysis. Second, they urge us to keep the nearly-identical standard, which, they say, reflects the dominant rule in our case law and most accurately captures the Supreme Court’s understanding of the phrase "similarly situated."

For the reasons that follow, we hold, as an initial matter, that a meaningful comparator analysis must be conducted at the prima facie stage of McDonnell Douglas ’s burden-shifting framework, and should not be "move[d]" to the pretext stage. With respect to the standard itself, we hold that the proper test for evaluating comparator evidence is neither plain-old "same or similar" nor "nearly identical," as our past cases have discordantly suggested. Nor is it the Seventh Circuit’s so-long-as-the-comparison-isn’t-useless test. Rather, we conclude that a plaintiff asserting an intentional-discrimination claim under McDonnell Douglas must demonstrate that she and her proffered comparators were "similarly situated in all material respects."

I

A

Jacqueline Lewis, an African-American woman, started working for the Union City Police Department as a patrol officer in 2001 and was promoted to detective in 2008. She suffered a heart attack the following year but was cleared to return to work without any restrictions.

In 2010, then-Police Chief Charles Odom announced a new policy requiring all officers to carry Tasers. As part of the training associated with the new policy, officers had to receive a five-second Taser shock.¹

After hearing about the Taser policy and being scheduled for separate pepper-spray training, Lewis became concerned that she might be at an increased risk of injury because of her earlier heart attack. Lewis’s doctor agreed and, due to what she described as "several chronic conditions including a heart condition," she informed Chief Odom that she "would not recommend" that either a Taser or pepper spray be used either "on or near" Lewis.

Because as a detective Lewis would inevitably be (at the very least) "near" pepper spray—and under the new policy, Tasers, as well—Chief Odom concluded that the restrictions described by Lewis’s doctor prevented her from performing the essential duties of her job. Accordingly, Lewis was placed on unpaid administrative leave "until such time [as her doctor] release[d] [her] to return to full and active duty." Lewis was instructed "to complete the necessary FMLA paperwork concerning [her] absence" and told that she could use her accrued paid leave until it was expended. After a few weeks, Lewis had exhausted all of her accrued leave but still hadn’t completed the necessary FMLA paperwork. As a result, her absence was deemed "unapproved" and she was terminated pursuant to the Union City Personnel Policy, which stated that "[a]ny unapproved leave of absence [is] cause for dismissal."

B

Lewis brought this action against Union City and Chief Odom (together, "the City"), alleging, as relevant here, race and gender discrimination in violation of Title VII, the Equal Protection Clause, and 42 U.S.C. § 1981.² The City moved for summary judgment, and Lewis filed a response in which she identified as comparators two other Union City police officers whom she claimed had been treated more favorably. The first was Sergeant Cliff McClure, a white man who failed the "balance" portion of a physical-fitness test in 2014 (nearly four years after the events culminating in Lewis’s termination) and was given 90 days of unpaid administrative leave to remedy the conditions that caused him to fail. McClure retook (and passed) the test within the 90-day period and returned to work. The second was Officer Walker Heard, a white man who failed an "agility" test in 2013 (almost three years after Lewis’s firing) and was also placed on unpaid administrative leave for 90 days. Heard was offered (and ultimately declined) a position as a dispatcher. The offer, however, remained open for approximately 11 months while Heard’s attorney negotiated with the City regarding allegations that he suffered from a disability. In the end, Heard was terminated after 449 days on unpaid administrative leave because he was unable to demonstrate his fitness to be a patrol officer.³

The district court granted summary judgment to the City, concluding as to the race- and gender-discrimination claims that Lewis’s "proffered comparators d[id] not qualify under either [the ‘nearly identical’ or the ‘same or similar’] standard."

Over Judge Tjoflat’s dissent, a panel of this Court reversed, holding in relevant part that Lewis had presented enough evidence to create a genuine issue of material fact as to her race- and gender-discrimination claims. Lewis v. City of Union City , 877 F.3d 1000, 1004 (11th Cir. 2017), reh’g en banc granted, opinion vacated , Lewis v. City of Union City , 893 F.3d 1352 (11th Cir. 2018). In particular, the panel determined that McClure and Heard were valid comparators for purposes of assessing Lewis’s prima facie case. 877 F.3d at 1015–18. In the course of so holding, the panel acknowledged that "[t]his Circuit often has applied or referred to a ‘nearly identical’ standard to determine whether proposed comparators are similarly situated," but it rejected that test, which, it reasoned, applies only in workplace-misconduct cas...