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Lewis v. City of Union City

United States Court of Appeals for the Eleventh Circuit

March 21, 2019, Decided

No. 15-11362

Opinion

 [*1217]  ON PETITION [**2]  FOR REHEARING

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). 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 [**3]  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  [*1218]  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:

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918 F.3d 1213 *; 2019 U.S. App. LEXIS 8450 **; 103 Empl. Prac. Dec. (CCH) P46,242; 28 Fla. L. Weekly Fed. C 127

JACQUELINE LEWIS, Plaintiff-Appellant, versus CITY OF UNION CITY, GEORGIA, CHIEF OF POLICE CHARLES ODOM, in his official and individual capacities, Defendant-Appellees.

Prior History:  [**1] Appeal from the United States District Court for the Northern District of Georgia. D.C. Docket No. 1:12-cv-04038-RWS.

Lewis v. City of Union City, 877 F.3d 1000, 2017 U.S. App. LEXIS 25368 (11th Cir. Ga., Dec. 15, 2017)

CORE TERMS

similarly situated, prima facie, prima facie case, pretext, administrative leave, non discriminatory reason, employees, reasons, terminated, rigorous, discriminatory, cases, onerous, summary judgment, fired, material respect, personnel policy, prima facie burden, phase, nearly-identical, physical-fitness, generalized, proffered, en banc, paperwork, permanent, policies, unlawful discrimination, statement of reasons, accommodation

Labor & Employment Law, Evidence, Burdens of Proof, Burden Shifting, Civil Procedure, Appeals, Standards of Review, De Novo Review, Summary Judgment Review, Standards of Review, Judgments, Summary Judgment, Entitlement as Matter of Law, Discrimination, Title VII Discrimination, Scope & Definitions, Disparate Treatment, Circumstantial & Direct Evidence, Actionable Discrimination