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Lewis v. City of Union City

United States Court of Appeals, Eleventh Circuit

March 21, 2019

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

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

         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:

         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 (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 (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 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 what 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 cases. Id. at 1017 n.11.

         We vacated the panel's opinion and took this case en banc to clarify the proper standard for comparator evidence in intentional-discrimination cases.[4]

         II

         This case arises principally under Title VII of the Civil Rights Act of 1964, which makes it unlawful for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e- 2(a)(1). "The language of Title VII makes plain the purpose of Congress to assure equality of employment opportunities and to eliminate those discriminatory practices and devices" that have been used to disadvantage racial, gender, and religious minorities in the workplace. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800 (1973).[5]

         In order to survive summary judgment, a plaintiff alleging intentional discrimination must present sufficient facts to permit a jury to rule in her favor. One way that she can do so is by satisfying the burden-shifting framework set out in McDonnell Douglas.[6] When proceeding under McDonnell Douglas, the plaintiff bears the initial burden of establishing a prima facie case of discrimination by showing (1) that she belongs to a protected class, (2) that she was subjected to an adverse employment action, (3) that she was qualified to perform the job in question, and (4) that her employer treated "similarly situated" employees outside her class more favorably. See, e.g., Holifield v. Reno, 115 F.3d 1555, 1561-62 (11th Cir. 1997) (citing McDonnell Douglas, 411 U.S. at 802). If the plaintiff succeeds in making out a prima facie case, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Finally, should the defendant carry its burden, the plaintiff must then demonstrate that the defendant's proffered reason was merely a pretext for unlawful discrimination, an obligation that "merges with the [plaintiff's] ultimate burden of persuading the [factfinder] that she has been the victim of intentional discrimination." Id. at 256.

         The question before the en banc court is whether Lewis adequately showed that the City treated "similarly situated" employees outside her class more favorably than her. That question, in turn-and in the light of the parties' contentions-comprises two subsidiary questions. First, 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? Second, and in either event, what is the proper standard for determining whether a plaintiff and her comparators are "similarly situated"? We turn to a consideration of those questions.[7]

         A

         All here seem to agree that the qualitative assessment of comparator evidence has historically occurred in-and been an integral part of-the plaintiff's prima facie case. In her brief, for instance, Lewis recites the black-letter principle that in order to make out a prima facie case in a wrongful-termination action like this, "a plaintiff must show that she: (1) is a member of a protected class; (2) was qualified for the position from which she was terminated; (3) was terminated; and (4) was treated less favorably than similarly situated employees outside her protected class." Appellant's En Banc Br. at 21 (citing, e.g., St. Mary's Honor Ctr. v Hicks, 509 U.S. 502, 506 (1993)) (emphasis added). Even so, Lewis now asks us to "move" the similarly-situated comparison out of the initial prima facie stage of the McDonnell Douglas analysis and into the tertiary pretext stage. Id. at 15, 30. For the reasons that follow, we decline to do so.

         For starters, the Supreme Court has repeatedly (and consistently) included a comparator-evidence assessment-using one formulation or another-as an element of a plaintiff's prima facie case. Beginning in McDonnell Douglas itself, the Court emphasized that a Title VII plaintiff-there bringing a failure-to-hire claim-carries his prima facie burden "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 qualifications, he was rejected; and"-importantly here-"(iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications." 411 U.S. at 802. The Court reiterated a similar four-part prima facie test in Furnco Construction Corp. v. Waters, 438 U.S. 567, 575 (1978), and again in St. Mary's Honor Center v. Hicks, 509 U.S. at 506. Most recently, in Young v. United Parcel Service, Inc., the Court applied the McDonnell Douglas framework to a failure-to-accommodate claim arising under the Pregnancy Discrimination Act, and in so doing restated yet again the required four-step test: "[A] plaintiff . . . may make out a prima facie case by showing, as in McDonnell Douglas, [1] that she belongs to the protected class, [2] that she sought accommodation, [3] that the employer did not accommodate her, and [4] that the employer did accommodate others 'similar in their ability or inability to work.'" 135 S.Ct. 1338, 1354 (2015) (enumeration added).

         The Supreme Court has located the comparator analysis in McDonnell Douglas's preliminary stage for good reason. 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." See, e.g., McDonnell Douglas, 411 U.S. at 802 ("The complainant in a Title VII trial must carry the initial burden under the statute of establishing a prima facie case of racial discrimination." (emphasis added)); Burdine, 450 U.S. at 252-53 ("discrimination"); St. Mary's, 509 U.S. at 506 ("discrimination"). "The prima facie case serves an important function," the Supreme Court has said, in that "it eliminates the most common nondiscriminatory reasons" for the employer's treatment of the plaintiff-and in so doing "give[s] rise to an inference of unlawful discrimination." Burdine, 450 U.S. at 253-54; see also Furnco, 438 U.S. at 577 (same); Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 358 (1977) (same). A successful prima facie showing thus establishes a "legally mandatory, rebuttable presumption" of intentional discrimination, Burdine, 450 U.S. at 254 n.7, that "produces a required conclusion in the absence of explanation" by the employer, St. Mary's, 509 U.S. at 506 (quotation marks omitted). In other words, establishing a prima facie case of discrimination entitles the plaintiff to judgment-to victory-if the employer either can't, won't, or doesn't provide a nondiscriminatory explanation for its actions. See Burdine, 450 U.S. at 254 ("[I]f the employer is silent in the face of the presumption, the court must enter judgment for the plaintiff because no issue of fact remains in the case."). 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."[8]

         So what exactly is this "discrimination," an inference of which is the object of the plaintiff's prima facie case? As we have said many times-and as all of us know intuitively-"[d]iscrimination consists of treating like cases differently." N.L.R.B. v. Collier, 553 F.2d 425, 428 (5th Cir. 1977) (emphasis added); see also, e.g., Frosty Morn Meats, Inc. v. N.L.R.B., 296 F.2d 617, 621 (5th Cir. 1961). The converse, of course, is also true: Treating different cases differently is not discriminatory, let alone intentionally so. See Nix v. WLCY Radio/Rahall Commc'ns, 738 F.2d 1181, 1186 (11th Cir. 1984) ("[I]f an employer applies a rule differently to people it believes are differently situated, no discriminatory intent has been shown.") (quoting Chescheir v. Liberty Mut. Ins. Co., 713 F.2d 1142, 1148 (5th Cir. 1983)) (emphasis added).

         By its very nature, therefore, discrimination is a comparative concept-it requires an assessment of whether "like" (or instead different) people or things are being treated "differently." In light of that reality-and because a sufficient prima facie showing gives rise to an inference of unlawful discrimination-"mov[ing]" the comparator analysis out of the initial prima facie stage and into the tertiary pretext stage, as Lewis requests, would make no sense. Were we to do so, a plaintiff could demonstrate a potential winner at step one by showing only (1) that she belongs to a protected class, (2) that she suffered some adverse employment action, and (3) that she was qualified to perform the job in question. But even conclusive proof of those three elements can't entitle a plaintiff to judgment on a claim for unlawful discrimination. Absent a qualitative comparison at the prima facie stage-i.e., without determining whether the employer treated like cases differently-there's no way of knowing (or even inferring) that discrimination is afoot. Think about it: Every qualified minority employee who gets fired, for instance, necessarily satisfies the first three prongs of the traditional prima facie case. But that employee could have been terminated because she was chronically late, because she had a foul mouth, or for any of a number of other nondiscriminatory reasons. It is only by demonstrating that her employer has treated "like" employees "differently"-i.e., through an assessment of comparators-that a plaintiff can supply the missing link and provide a valid basis for inferring unlawful discrimination.

         You see the problem: Lewis's proposal that the qualitative assessment of comparator evidence be "move[d]" out of the prima facie stage and into the pretext stage would allow the plaintiff to proceed-and potentially to win-without any good ground for presuming that discrimination has occurred. Doing so would effectively shift to the defendant the burden of disproving discrimination-which is precisely what the Supreme Court has forbidden. See, e.g., Burdine, 450 U.S. at 253, 254-58 (rejecting rules that placed too stringent a burden on a gender-discrimination defendant and emphasizing that the "ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff").[9]

         We have no trouble concluding, therefore, that a meaningful comparator analysis must remain part of the prima facie case. In order to defeat summary judgment, a Title VII plaintiff proceeding under McDonnell Douglas must prove, as a preliminary matter, not only that she is a member of a protected class, that she suffered an adverse employment action, and that she was qualified for the job in question, but also that she was treated less favorably than "similarly situated" individuals outside her class.

         B

         Having resolved that a comparator analysis must be conducted at the prima facie stage of the McDonnell Douglas framework-and not relegated to the pretext phase-we must now decide exactly what sort of showing the phrase "similarly situated" requires a plaintiff to make and, in so doing, begin to flesh out the standard's parameters.

         As we've already confessed, we've made something of a hash of the "similarly situated" issue, bouncing back and forth (and back and forth) between two standards―"nearly identical" and "same or similar." Compare, e.g., Nix, 738 F.2d at 1185 ("nearly identical"), with, e.g., Holifield, 115 F.3d at 1562 ("same or similar"), and, e.g., Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999) (both). We took this case en banc principally to determine whether we should continue to apply one of those standards, or instead adopt some other test.

         1

         As an initial matter, no one seems to be advocating the same-or-similar standard-presumably because it is simultaneously too strict and too lenient, and thus incoherent. The terms "same" and "similar" denote different things. In ordinary usage, "same" means precise, jot-for-jot correspondence-clearly too exacting. See Webster's Second New International Dictionary 2209 (1944). "Similar," a much flabbier concept that includes among its definitions "somewhat like," id. at 2340, has its own problems-chief among them that it adds absolutely nothing to the general "similarly situated" standard.

         Lewis's principal concern is that we reject the nearly-identical test, which she finds too "rigid." She urges us instead to adopt the Seventh Circuit's "flexible, common-sense" standard pursuant to which the "similarly situated" requirement is satisfied "[s]o long as the distinctions between the plaintiff and the proposed comparators are not 'so significant that they render the comparison effectively useless.'" Appellant's En Banc Br. at 34 (quoting Coleman v. Donahoe, 667 F.3d 835, 846 (7th Cir. 2012)). The City, by contrast, wants us to keep the nearly-identical standard, which, it says, reflects the dominant theme in our case law and most accurately captures the Supreme Court's understanding of the phrase "similarly situated."

         We conclude that neither party's proposal quite fits the bill. For reasons we will explain, Lewis's not-useless standard is too lax, and the City's (and occasionally our own) nearly-identical test is too strict. We hold, instead-without trying to force an artificial gloss-that a plaintiff must show that she and her comparators are "similarly situated in all material respects." That standard, we think, best and most fairly implements federal statutory prohibitions on "discrimination," properly balances the need to protect employees from invidious discrimination with the deference owed to employers' rational business judgments, and sensibly serves considerations of sound judicial administration by making summary judgment available in appropriate (but by no means all) cases.

         2

         In assessing the parties' positions-and adopting our own-we take as our lodestars (1) the ordinary meaning of the term "discrimination" and (2) the twin policies that the Supreme Court has said animate the McDonnell Douglas framework's prima facie case. First, "discrimination": Discrimination, as we have explained, is the act of "treating like cases differently." E.g., Collier, 553 F.2d at 428 (emphasis added). Quintessential discrimination-the Platonic form, if you will-therefore requires true "like[ness]," perfect apples-to-apples identity. As Lewis and her amici correctly explain, however, in the real world (and real workplaces) "doppelgangers are like unicorns"-they don't exist. So practically speaking, at least, perfect identity is a non-starter. But in adopting a comparator standard, we must not stray too far from paradigmatic notions of discrimination, lest we sanction a regime in which treating different things differently violates Title VII, which clearly it does not. Second, and relatedly, we must be mindful of the two functions that the Supreme Court has said the prima facie case is designed to serve-(1) to eliminate "the most common nondiscriminatory reasons" for an employer's conduct, and (2) to provide a sound basis for an "inference of unlawful discrimination." Burdine, 450 U.S. at 253-54; see also Furnco, 438 U.S. at 577; Young, 135 S.Ct. at 1354.

         It's clear, we think, that Lewis's proposed standard-which, again, deems the similarly-situated standard satisfied "[s]o long as the distinctions between the plaintiff and the proposed comparators are not 'so significant that they render the comparison effectively useless'"-fails these tests. In its looseness, Lewis's standard departs too dramatically from the essential sameness that is necessary to a preliminary determination that the plaintiff's employer has engaged in unlawful "discrimination." A plaintiff and a comparator might be alike in some (even random) sense, such that a comparison wouldn't necessarily be irrelevant or crazy. But without closer correspondence, the comparison wouldn't provide any sound basis for eliminating legitimate reasons for an employer's conduct or validly inferring discriminatory animus.

         Separately, Lewis's not-useless standard risks giving courts too much leeway to upset employers' valid business judgments. In applying McDonnell Douglas, the Supreme Court has stressed the importance of striking an appropriate balance between employee protection and employer discretion. In McKennon v. Nashville Banner Publishing Co., for instance, the Court observed that federal antidiscrimination statutes do "not constrain employers from exercising significant other prerogatives and discretions in the course of the hiring, promoting, and discharging of their employees," and emphasized that courts deciding cases arising under those laws "must recognize" not only "the important claims of the employee[s]" but also "the legitimate interests of the employer." 513 U.S. 352, 361 (1995). The reason for deference, the Court has explained, is that "[c]ourts are generally less competent than employers to restructure business practices, and unless mandated to do so by Congress they should not attempt it." Furnco, 438 U.S. at 578. By permitting cases to proceed on the most meager showing of similarity between a plaintiff and her comparators, Lewis's not-useless standard would thrust courts into staffing decisions that bear no meaningful indicia of unlawful discrimination.

         Finally, it seems to us inevitable that Lewis's proposal would effectively eliminate summary judgment as a tool for winnowing out meritless claims. Indeed, forestalling summary judgment appears to be a feature of the not-useless standard, not a bug. Lewis repeatedly touts her standard as not only "flexible" but also inherently "factual." E.g., Appellant's En Banc Br. at 16, 34; Appellant's En Banc Reply Br. at 9. So long, she says, as there are "enough common features to allow meaningful comparison, the question of equivalence should be left to a jury to decide." Appellant's En Banc Br. at 16. Lewis's amici likewise stress that "[a]ny comparison will necessarily entail fact-finding and weighing of evidence, which, of course, is the job of the jury"-and therefore contend that it is "only in cases of the most dissimilar proposed comparators, without any other indicia of discriminatory intent, that summary judgment may be supported." Br. of Amici for Appellant at 16. That's just too low a bar. Without prejudging, it seems to us inconceivable, for instance, that nearly every one of the hundreds of Title VII cases filed in this Circuit last year warranted a full trial.

         While Lewis's standard is clearly too lenient, the City's is too strict-or at least has the appearance of being too strict. Although we have employed it for some time now―albeit inconsistently―the nearly-identical standard gives off the wrong "vibe." Despite the adverb "nearly"―and our repeated reassurances that "comparators need not be the plaintiff's doppelgangers," Flowers v. Troup County, Georgia, School District, 803 F.3d 1327, 1340 (11th Cir. 2015), and, even more explicitly, that "'[n]early identical' . . . does not mean 'exactly identical, '" McCann v. Tillman, 526 F.3d 1370, 1374 n.4 (11th Cir. 2008)―there is a risk that litigants, commentators, and (worst of all) courts have come to believe that it requires something akin to doppelganger-like sameness. Although we must take care not to venture too far from the form-"apples should be compared to apples"-we must also remember that "[e]xact correlation is neither likely nor necessary." Dartmouth Review v. Dartmouth Coll., 889 F.2d 13, 19 (1st Cir. 1989), overruled on other grounds by Educadores Puertorriqueños en Acción v. Hernandez, 367 F.3d 61 (1st Cir. 2004). And we are not willing to take the risk that the nearly-identical test is causing courts reflexively to dismiss potentially valid antidiscrimination cases.[10]

         3

         So, we are left to try to find the sweet spot between Lewis's squishy not-useless standard and the City's preferred nearly-identical standard. For reasons explained below, we hold that a plaintiff proceeding under McDonnell Douglas must show that she and her comparators are "similarly situated in all material respects."[11]

         a

         As an initial matter, what does it mean for a plaintiff and her comparators to be "similarly situated in all material respects"? Fair question. Of course, precisely what sort of similarity the in "all material respects" standard entails will have to be worked out on a case-by-case basis, in the context of individual circumstances. But we are not without guideposts.[12]

         We know, for instance, that the plaintiff and her comparators need not be "similar in all but the protected ways." Young, 135 S.Ct. at 1354. A plaintiff needn't prove, therefore, that she and her comparators are identical save for their race or gender, as the case may be. Not even the nearly-identical standard requires that level of exactitude. Nor is it necessary for a plaintiff to prove purely formal similarities-e.g., that she and her comparators had precisely the same title. See Lathem v. Dep't of Children & Youth Servs., 172 F.3d 786, 793 (11th Cir. 1999) ("The relevant inquiry is not whether the employees hold the same job titles, but whether the employer subjected them to different employment policies.") (citation omitted). Nor will minor differences in job function disqualify a would-be comparator. See, e.g., Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 353 (6th Cir. 1998) (concluding that minor "differences in . . . job activities" did not "automatically" disqualify plaintiff's proffered comparators, at least where they held "related human resources positions").

         Having said that, we can also envision the sorts of similarities that will, in the main, underlie a valid comparison. Ordinarily, for instance, a similarly situated comparator-

• will have engaged in the same basic conduct (or misconduct) as the plaintiff, see, e.g., Mitchell v. Toledo Hosp., 964 F.2d 577, 580, 583 (6th Cir. 1992) (holding that a plaintiff terminated for "misuse of [an employer's] property" could not rely on comparators allegedly guilty of "absenteeism" and "insubordination")[13];
• will have been subject to the same employment policy, guideline, or rule as the plaintiff, see, e.g., Lathem, 172 F.3d at 793 (holding that a plaintiff's proffered comparators were valid where all were subject to the same "workplace rules or policies");
• will ordinarily (although not invariably) have been under the jurisdiction of the same supervisor as the plaintiff, see, e.g., Jones v. Gerwens, 874 F.2d 1534, 1541 (11th Cir. 1989) (observing that "disciplinary measures undertaken by different supervisors may not be comparable for purposes of Title VII analysis"); and
• will share the plaintiff's employment or disciplinary history, see, e.g., Tennial v. United Parcel Serv., Inc., 840 F.3d 292, 304 (6th Cir. 2016) (explaining that "[d]ifferences in experience and disciplinary history" can disqualify a plaintiff's proffered comparators).

         In short, as its label indicates―"all material respects"―a valid comparison will turn not on formal labels, but rather on substantive likenesses. To borrow phrasing from a recent Supreme Court decision, a plaintiff and her comparators must be sufficiently similar, in an objective sense, that they "cannot reasonably be distinguished." Young, 135 S.Ct. at 1355.[14]

         b

         Now, why "similarly situated in all material respects"? Most importantly, we think that it (unlike the parties' dueling proposals) hews closely, but also realistically, to the ordinary meaning of "discrimination" and, when met, satisfies the twin aims of the prima facie case-"eliminat[ing] the most common nondiscriminatory reasons" for an employer's action and thereby "giv[ing] rise to an inference of unlawful discrimination," Burdine, 450 U.S. at 253-54. An all-material-respects standard also leaves employers the necessary breathing space to make appropriate business judgments. See McKennon, 513 U.S. at 361; Furnco, 438 U.S. at 578. An employer is well within its rights to accord different treatment to employees who are differently situated in "material respects"-e.g., who engaged in different conduct, who were subject to different policies, or who have different work histories. Finally, the all-material-respects standard serves the interest of sound judicial administration by allowing for summary judgment in appropriate cases―namely, where the comparators are simply too dissimilar to permit a valid inference that invidious discrimination is afoot.[15]

         * * *

         We conclude, therefore, that it is not enough for a plaintiff proceeding under McDonnell Douglas to show only that a comparison with identifiable employees outside her class wouldn't be "useless." We also hold, though, that a plaintiff needn't show that she and her comparators were "nearly identical." Instead, she must demonstrate-as part of her prima facie case-that she and her comparators are "similarly situated in all material respects."[16]

         III

         Having settled on-and begun to flesh out-a standard to govern the "similarly situated" issue, we must now apply it to Lewis's case. We conclude that Lewis has not made out a prima facie case because she and her proffered comparators-Sergeant McClure and Officer Heard-were not "similarly situated in all material respects." To be clear, in so concluding, we consider only Lewis's own presentation and facts not reasonably subject to dispute.[17]

         Lewis contends that she and her comparators were "similarly situated"- even, she says, under a strict nearly-identical test-because they "were all placed on administrative leave by the City when they could not meet a physical qualification of the job of police officer." Appellant's En Banc Br. at 13. But Lewis's broad-brush summary glosses over critical differences. Lewis and her comparators were placed on leave years apart and pursuant to altogether different personnel policies and, perhaps even more importantly, for altogether different conditions.

         McClure and Heard were placed on leave pursuant to the Police Department's Physical Fitness/Medical Examinations policy-which, as the dissent acknowledges, "had not yet been issued when Lewis was fired" and, indeed, wouldn't be promulgated for another two years. Dissenting Op. at 91. That policy states that an officer who is "not deemed fit for duty will be placed on unpaid administrative leave for a period of ninety (90) days"-the purpose being to allow the officer time to improve his or her health and fitness through training, diet, and exercise. Lewis, on the other hand, was placed on leave pursuant to the Union City Personnel Policy, which provides in relevant part that "[a]ny unapproved leave of absence [is] cause for dismissal." As already explained, after Lewis's doctor determined that a Taser-which Lewis would be required to carry-couldn't be used "on" or even "near" her, Lewis was instructed to apply for FMLA leave and told that she could use any other accumulated leave "until . . . expired." When Lewis failed to apply for FMLA leave and exhausted her other leave, she was terminated on the ground that, under the Personnel Policy, she was absent without permission.[18]

         The fact that the City applied different personnel policies to Lewis and her comparators is unsurprising, because they were contending with very different underlying conditions. McClure and Heard flunked physical-fitness requirements related, respectively, to "balance" and "agility." Both were placed on leave for 90 days to remedy the problems that caused their failures. McClure was cleared by his doctor to re-take the balance test, took and passed it, and returned to work; Heard was unable to demonstrate his fitness and (following an extended negotiation with the City) was eventually terminated. For present purposes, the important point is that the deficient physical-fitness benchmarks that sidelined McClure and Heard were at least theoretically (and in McClure's case, actually) remediable. Lewis, by contrast, failed a training requirement-pertaining specifically to the carriage and use of a deadly weapon-on the ground that she suffered from what her doctor described as a "chronic" heart condition, see Doc. 58-3 at 6, and what she herself has called a "permanent" heart injury, see Doc. 72 at 8. And unlike McClure, for instance, Lewis was never cleared by her doctor to participate in the required training.[19]

         For these reasons-because they were subject to different personnel policies and placed on leave for different underlying conditions-we conclude that McClure and Heard were not similar to Lewis "in all material respects," and thus were not valid comparators for purposes of Lewis's prima facie case.

         IV

         In sum, we hold that when a plaintiff relies on the McDonnell Douglas burden-shifting framework to prove an intentional-discrimination claim using circumstantial evidence, she must demonstrate-as part of her prima facie case- that she was treated differently from other individuals with whom she was similarly situated in all material respects. We further hold that Lewis has failed to do so.

         The case is REMANDED to the panel for proceedings consistent with this opinion.[20]

          ROSENBAUM, Circuit Judge, joined by MARTIN and JILL PRYOR, Circuit Judges, concurring in part and dissenting in part:

         The Supreme Court created the McDonnell Douglas[1] framework as a delicate balance between an employee's right to work free from discrimination and an employer's right to take action against an employee for any nondiscriminatory reason. Today, the Majority Opinion drops an anvil on the employer's side of the balance. Though the Majority Opinion correctly defines "similarly situated" within the McDonnell Douglas framework as "similarly situated in all material respects," Maj. Op. at 5, 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.

         First, faced with how and where to implement the "similarly situated" standard, the Majority Opinion rigorously[2] applies the standard entirely[3] at the prima facie stage of the McDonnell Douglas analysis. Yet that construction of the prima facie case rebukes its parent: McDonnell Douglas and its progeny explicitly and implicitly require a generalized application of the "similarly situated" standard at the initial, prima facie juncture and a more particularized one at the pretext phase of the framework-after the employer has satisfied its burden of coming forward with its nondiscriminatory reason for adverse action. In ratcheting up the prima facie stage's "similarly situated" standard, the Majority Opinion defies the purpose of Title VII and the McDonnell Douglas framework.

         How the "similarly situated" inquiry is implemented matters: if it is turned up too high at the prima facie stage, it sweeps in the employer's nondiscriminatory reasons. And considering the employer's nondiscriminatory reasons at the prima facie stage flouts Supreme Court precedent. It also affects whether the employee ever has a chance to demonstrate that the employer's reasons were pretextual or whether the court must instead blindly accept the employer's untested assertions as a non-discriminatory basis for the employer's decision. So by locating a rigorous "similarly situated" requirement at the prima facie stage of the McDonnell Douglas framework, the Majority Opinion shrinks the number of potentially discriminated-against plaintiffs who will have an opportunity to see trial-or even to challenge their employers' proffered reasons for taking action against them.

         And the errors do not end there. In applying the "similarly situated" standard to Lewis's facts, the Majority Opinion overly broadly construes the term "material" in that standard. As a result, it requires comparators to be similarly situated in immaterial ways. The Majority Opinion also omits key facts showing that Lewis and her two chosen comparators were "similarly situated" in all material ways, while violating an elementary principle of summary-judgment review by assuming facts in favor of the Department that are not supported by the record.

         We will almost always be able to find a difference between a plaintiff and her proposed comparators if we strain our eyes looking hard enough. But as the Majority Opinion stresses, the "similarly situated" test is meant to ensure only that "apples [are] compared to apples." Maj. Op. at 22. By focusing on trivial differences, though, the Majority Opinion uses the word "material" to bar meaningful comparisons between Honeycrisp and SnapDragon apples.[4] So the Majority Opinion finds that Lewis's claim fails because her doctor's note recommending against Tasing and pepper-spraying her rendered her too dissimilar from her comparators who had balance and agility issues-even though the upshot of all three officers' conditions was that the City deemed them all physically unfit to patrol the streets of Union City and, in turn, relied on that fact to put them all on administrative leave. Meanwhile, Lewis, an African-American woman, received only 21 days of administrative leave before being fired, but one white male comparator enjoyed 449 days before his dismissal and the other got up to 90 days to demonstrate he had become physically fit enough to resume his duties.

         In applying the "similarly situated" standard to Lewis's facts to eliminate comparators who actually were similarly situated to her in all material respects, the Majority Opinion contradicts 46 years of Supreme Court precedent, elevates the "similarly situated" requirement to one of form over substance, and incorrectly concludes that the district court did not err in entering summary judgment against Lewis.

         I respectfully dissent from these errors.

         I.

         I begin with the Majority Opinion's error in how and where it has implemented the "similarly situated" standard within the McDonnell Douglas framework.

         In Section A, I explain that the Supreme Court established the McDonnell Douglas burden-shifting framework to allow plaintiffs who lack direct evidence of discrimination to nonetheless obtain fair scrutiny of their claims that they have been discriminated against in the workplace-that is, as a delicate balance between employers' rights to make legitimate personnel decisions and employees' rights to be free from "those discriminatory practices . . . which have fostered racially stratified job environments . . . ." McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800 (1973). Section B demonstrates that the Supreme Court's remarks about how the McDonnell Douglas analysis works demand the conclusion that the comparator requirement is minimal and generalized at the plaintiff's initial burden- the prima facie stage-and progresses to more specificity only at the last stage-the pretext inquiry-of the framework. Next, Section C shows that the Supreme Court's actual analyses in McDonnell Douglas itself and in its progeny followed this funnellike application of the "similarly situated" requirement in the specificity they required of comparator evidence. In Section D, I explain how the Majority Opinion's decision to move the entire "similarly situated" inquiry into the prima facie case inflicts a significant blow on a plaintiff's ability to establish discrimination in circumstantial cases and upsets the delicate balance struck by the McDonnell Douglas framework. And finally, Section E explores how the Majority Opinion errs and concludes that conducting the complete and rigorous comparator analysis at the prima-facie-case stage is fatally flawed.

         A.

         "[I]t is abundantly clear that Title VII tolerates no racial discrimination, subtle or otherwise." McDonnell Douglas, 411 U.S. at 801. Title VII's prohibitions against discrimination undoubtedly "reflect an important national policy," U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716 (1983), because of "society's consensus that discrimination . . . is a profound wrong of tragic dimension," Patterson v. McLean Credit Union, 491 U.S. 164, 188 (1989). To effectuate Title VII's broad, nationally important remedial purposes, the Supreme Court has cautioned against issuing opinions that "signal[] one inch of retreat from Congress' policy to forbid discrimination in the private, as well as the public, sphere." Id.

         Yet despite this unyielding mandate, plaintiffs often face a paradox: "Unless the employer is a latter-day George Washington, employment discrimination is as difficult to prove as who chopped down the cherry tree," Thornbrough v. Columbus & Greenville R. Co., 760 F.2d 633, 638 (5th Cir. 1985), because employers of "even minimal sophistication will neither admit discriminatory animus nor leave a paper trail demonstrating it . . . ." Riordan v. Kempiners, 831 F.2d 690, 697 (7th Cir. 1987); see also Grigsby v. Reynolds Metals Co., 821 F.2d 590, 595 (11th Cir. 1987) ("[P]laintiffs . . . rarely are fortunate enough to have access to direct evidence of intentional discrimination."). To chip away at that paradox, "[c]ourts today must be increasingly vigilant" because "[t]he sophisticated would-be violator has made our job a little more difficult." Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1082 (3d Cir. 1996).

         That's where McDonnell Douglas comes in. The "entire purpose" of McDonnell Douglas "is to compensate for the fact that direct evidence of intentional discrimination is hard to come by." Price Waterhouse v. Hopkins, 490 U.S. 228, 271 (1989) (O'Connor, J., concurring), superseded in part by The Civil Rights Act of 1991, Tit. I, § 107(a), 105 Stat. 1075 (codified at 42 U.S.C. § 2000e-2(m)); see also Grigsby, 821 F.2d at 595 ("The McDonnell Douglas-Burdine patterns of proof were designed to ease the evidentiary burdens on employment discrimination plaintiffs . . . ."). So the McDonnell Douglas framework is "designed to assure that the 'plaintiff [has] his day in court despite the unavailability of direct ...


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