A federal appellate panel split for a second time after getting direction from the full court on a former police detective’s discrimination lawsuit.

Once again, the panel decision in the U.S. Court of Appeals for the Eleventh Circuit opens the door to a trial on the Union City, Georgia, officer’s claim that she was fired after refusing to be shocked with a Taser during training due to a heart condition.

The case produced an en banc opinion earlier this year revamping the circuit’s method for judging similarly situated employees in discrimination cases.

The full court held the plaintiff’s “comparators”  did not meet the new, somewhat less stringent standards previously used in the circuit, a notoriously difficult venue for employment discrimination cases to survive summary judgment.  

The panel applied the new standard but said the case filed by Jacqueline Lewis should still go to trial based on other evidence.

U.S. District Judge Lewis Kaplan of the Southern District of New York, sitting by designation, wrote the 44-page majority opinion with backing from Circuit Judge Robin Rosenbaum. Circuit Judge Gerald Tjoflat dissented.

While Lewis may have been “simply shirking” to avoid being Tasered or exposed to pepper spray, Kaplan said, “A jury might find that the mosaic of circumstantial evidence presented by Ms. Lewis supports the conclusion that her firing was a product of, or influenced by, race and/or gender.”

He added the “ultimate decision in this case is for a properly instructed jury that has seen the witnesses and heard all of the evidence.” 

In a vigorous 18-page dissent, Tjoflat dismissed the majority’s finding that Lewis, a black woman, presented a “convincing mosaic” of evidence indicating she was treated differently than two white, male officers who were forced to take time off for health reasons but not fired.

Lewis, whose doctor also said should not be around department-issued pepper spray, was clearly unfit for duty as a police officer, Tjoflat said.

“After reviewing the record,” he wrote he is “now convinced that she couldn’t work in the police department building at all.”

Union City’s lawyers, Elarbee Thompson partners Tracy Glanton and Sharon Morgan, did not respond when asked whether they would again seek en banc review. 

Lewis’ lawyers, Cheryl Legare of Legare Attwood & Wolfe and Brian Sutherland of Buckley Beal, had no response by deadline.

The case is rooted in a 2010 decision by Police Chief Charles Odom requiring all  officers to carry Tasers and undergo a 5-second Taser shock and exposure to pepper spray as part of their training. 

Lewis suffered a minor heart attack the year before, and she asked her treating physician whether she should submit to the tests. 

Her doctor thought it was a bad idea and wrote Odom saying Lewis had “several chronic conditions including a heart condition” and “would not recommend that a Taser gun or OC spray be used on or near” Lewis. 

The department had a medical leave program, but Lewis was notified by letter that she was being placed on “administrative leave without compensation until such time as your physician releases you to return to full and active duty.”

Lewis asked to be assigned to duties that would not require the Taser and pepper training, but Odom declined. She had used up her vacation time and was still on unpaid leave when she was terminated.

In 2012, Lewis sued Union City and Odom in U.S. District Court for the Northern District of Georgia for claims including disability discrimination, race and gender discrimination and equal protection violation. 

Judge Richard Story dismissed all claims in 2015. 

The appeals court revived the suit in 2017, with Kaplan writing that Lewis’ disability, race and gender claims were sufficiently pleaded to be decided by a jury. That opinion upheld Story’s dismissal of her equal protection claims.

In his dissent, Tjoflat said Lewis had not provided evidence to support any of her claims and Story was correct in dismissing them.

In overturning Story, the 2017 panel found the two white officers received more favorable treatment when they were unable to meet training requirements, and the en banc court convened to hear arguments “to clarify the proper standard for comparator evidence in intentional-discrimination cases.”

In March, the court loosened its prior standard under which comparator employees had to be shown as “nearly identical” to a plaintiff, instead saying they must meet a “same or similar” standard. 

But the court also tightened up when the evidence must be presented, saying evidence of “in all material respects” must be determined in the early, prima facie stage of litigation to survive summary judgment.

In Lewis’ case, the two white officers “were subject to different personnel policies and placed on leave for different underlying conditions” and therefore “not similar to Lewis ‘in all material respects’ ” and “were not valid comparators for purposes of Lewis’s prima facie case,” the majority opinion said. 

The opinion released Aug. 15 noted the en banc ruling was “of course, binding upon us” but found it “does not foreclose altogether Ms. Lewis’s race and gender discrimination claims” against the city. 

Given the circumstances of her termination, which included being fired one day after her doctor called Odom but was unable to reach him, “a jury could conclude that the [police department] was searching for a policy to fit its desire to terminate Ms. Lewis rather than neutrally enforcing an existing policy,” Kaplan said.

Tjoflat said the majority was ignoring the fact that the city manager, not Odom, convened a hearing where she was represented by an attorney and approved her firing. 

“After hearing Lewis out, the city manager reached the more-than-reasonable decision to terminate Lewis because, given her condition, she could not discharge the duties of a detective,” Tjoflat said.

“Everything else — the department’s arbitrary and pretextual conduct, the supervisor’s sexist comment, and the comparators — is noise,” he said.