A common method of proof in discrimination cases is the disparate treatment between employees that are similarly situated. But who gets to decide -- the jury at trial or the judge on the employer's motion for summary judgment -- whether the plaintiff and the proposed comparator are similarly situated? It is a jury question the Sixth Circuit ruled in its recent case, Bobo v UPS, No 09-6348 (January 9, 2012). This case has been discussed in two previous postings: Similarly Situated In All Relevant Respects; The Sixth Circuit Reverses Based On the District Court's Limiting of Plaintiff's Discovery and Who Is A Similarly Situated Comparator? The Sixth Circuit Again Clarifies.
The plaintiff, Walleon Bobo an African-American and Iraq War combat veteran as well as a long-term UPS employee, was investigated along with other feed line supervisors regarding falsification of "safety ride" forms for drivers each supervised. Bobo admitted to some falsification; a number of white supervisors, according to Bobo's contention, lied and claimed that they had not done any falsification. Bobo claimed that he and these other supervisors were similarly situated, because they all had done some falsification regarding the safety rides. Bobo also aimed to draw the contrast between his conduct and these other supervisors, who had committed the double sin of both falsifying safety ride reports and lying about it during UPS's investigation yet still were not fired.
The Sixth Circuit ruled that "whether the other identified supervisors who did not admit misconduct are similarly situated to Bobo is a jury question." That the issue of whether the plaintiff and proposed comparators are or are not similarly situated is for the jury to decide is the result reached by a number of circuits: Mandell v. County of Suffolk, 316 F.3d 368, 379 (2nd Cir. 2003); George v. Leavitt, 407 F.3d 405 (D.C. Cir. 2005).