A split federal appeals court slightly eased the standard it uses to determine when workers qualify to pursue employment discrimination lawsuits and created a circuit split along the way.

Observers say Lewis v. City of Union City might be a vehicle for the U.S. Supreme Court to clear up litigation of the viability of workplace bias claims.

The full U.S. Court of Appeals for the Eleventh Circuit retreated Thursday from its former standard, which said employees to be considered “similarly situated” had to present “nearly identical” facts to survive dismissal.

The majority stepped away from that high bar, ruling employees who say they've faced discrimination can point to differing treatment accorded fellow workers under “same or similar” conditions. Using its old standard, the Atlanta court killed more lawsuits than other circuits.

But the panel on a 9-3 vote said courts must do that analysis early in the litigation. In a 100-page opinion, the majority said similarity “in all material respects” must be determined early in the litigation to survive summary judgment.

The majority decision, written by Judge Kevin Newsom, concluded that under either standard, the trial judge was correct to dismiss claims by former Union City, Georgia, police officer Jacqueline Lewis, who is black, that she was a victim of racial, gender and disability discrimination when she was fired in 2010 shortly after refusing to undergo a Taser shock or be pepper-sprayed.

A factual key to Lewis' case was evidence that two white, male detectives had been given substantial time off to deal with health issues. She has heart disease.

Concurring in Newsom's opinion were Chief Judge Ed Carnes and Judges Gerald Tjoflat, Stanley Marcus, Charles Wilson, William Pryor, Adalberto Jordan, Elizabeth Branch and Britt Grant.

While Circuit Judge Robin Rosenbaum welcomed  the court's decision to walk away from the “nearly identical” standard, she said in a forceful dissent that the majority's position on timing outweighed its impact, tilting the playing field radically in favor of employers.

The majority opinion “drops an anvil on the employer's side of the balance” in such cases, wrote Rosenbaum, who was joined in the dissent by Judges Beverly Martin and Jill Pryor.

In a footnote, Newsom disputed the dissenting judges' “colorful characterization” of the majority opinion, “particularly given that we are rejecting as too strict the 'nearly identical' standard that has pervaded our case law for decades.”

The trial judge in the case, Judge Richard Story dismissed Lewis' case, but in 2017 a three-judge panel of the Eleventh Circuit, divided 2-1, overruled him and revived the case. Rosenbaum and Senior Judge Lewis Kaplan of the U.S. District Court for the Southern District of New York, sitting by designation, said Lewis' case should have been allowed to proceed, while Tjoflat dissented.

One key question in presenting a prima facie case of discrimination, Newsom wrote, is just how “similarly situated” a plaintiff and her comparators must be. He wrote a history of the court's standard and concluded, “It's a mess.”

Timing Is Everything?

The second issue before the court was when the analysis should occur.

“Should the 'similarly situated' — i.e., comparator — analysis be conducted at the prima facie stage of the McDonnell Douglas framework, as we (and the Supreme Court) have traditionally held, or should it instead be reserved for the pretext stage?” Newsom asked.  

“The Supreme Court has located the comparator analysis in McDonnell Douglas' preliminary stage for good reason,” he said. “Lest we forget, the plaintiff's burden at step one is to show a prima facie case of something in particular — namely, unlawful intentional 'discrimination.'”

“It follows, therefore, that at the prima facie stage the plaintiff must show a potential 'winner' — i.e., enough to give rise to a valid inference that her employer engaged in unlawful intentional “discrimination,” he wrote.

In the dissent, Rosenbaum said that, although the majority opinion “correctly defines 'similarly situated' within the McDonnell Douglas framework as 'similarly situated in all material respects,' it one-sidedly implements and interprets this standard to the employer's redounding benefit. As a result, plaintiffs proceeding by circumstantial evidence in this circuit will have a difficult time budging the now-off-kilter balance and surviving summary judgment.”

Lewis was represented by Cheryl Legare of Legare Attwood & Wolfe and Brian Sutherland of Buckley Beal.

Legare said they were “happy that the Court of Appeals has rejected the nearly identical standard and are hopeful that this will inure to the benefit of employees in the Eleventh Circuit.

Employment lawyer Amanda Farahany of Atlanta's Barrett & Farahany was critical of the court's conclusion.

“The Eleventh Circuit has taken a confusing standard and made it convoluted, and increased the burden on plaintiffs,” said Farahany, who is not involved in the case. “The only thing that is clear is that the courts continue to deny plaintiffs the right to a jury trial by putting themselves in the role of a jury and having judges weighing the facts.”

An opposing view comes from employment defense lawyer find David Miller in Miami's Bryant Miller Olive.

“The dissent asserts that the 'material respects' standard and how it interprets the majority's application of it will eliminate more suits at summary judgment,” said Miller. “Even assuming that is true, the Eleventh Circuit's decisions in the last three years have reduced the number of cases to which this analysis will be applied, which may well have the opposite effect.”

“If common sense says that your claim isn't going to survive summary judgment, then maybe that claim won't be brought in the first place — and that would reduce the number of cases,” he said.