Discrimination cases turn frequently on whether the plaintiff can identify one or more comparators who are similarly-situated in all relevant respects. The different treatment between the employees serves as powerful illustration and evidence of discrimination. In an extremely rare development, the Sixth Circuit recently reversed in Bobo v. UPS, No. 09-6348 (January 9, 2012), a summary judgment granted UPS based principally on the trial court's limiting of plaintiff's discovery.
The plaintiff, Walleon Bobo, an African-American, was a long-term UPS employee as well as an Army Reservist injured in combat in Iraq. Although his immediate supervisors expressed resentment with this Army service, he obtained certification for the job of on-road feeder supervisor to train and supervise UPS drivers.
Bobo and the other feeder supervisors were required to conduct an annual "safety ride" and one following an accident with each driver they supervised. A "safety ride" was supposed to consume a full workday, cover various topics and the driver was also required to certify its completion. In theory, a "safety ride" was supposed to take all day and be completed off UPS property. In practice, however, safety rides were routinely conducted on UPS property and the forms regarding their conduct routinely falsified by both driver and supervisor. Eventually, a driver, Flenorl, perhaps at the instigation of other supervisors resentful of Bobo filed a complaint against Bobo asserting that his "safety ride" with Bobo had not been conducted properly.
Flenorl's complaint prompted an investigation. Bobo admitted that he did not properly conduct Flenorl's safety ride and that the form had been falsified. Interestingly, Flenorl provided Bobo an affidavit in the litigation stating that such violations were routine including among white feeder supervisors. Bobo was fire in May 2007 as a result of the violations of the "safety ride" practice and alleged dishonesty regarding completion of the forms.
Bobo filed suit following his termination claiming discrimination and retaliation in violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA), race discrimination and retaliation in violation of 42 USC 1981, Title VII and state law. The district court granted UPS summary judgment on all Bobo's claims.
Bobo sought in discovery information regarding a number of white, non-military supervisors to whom he compared himself. UPS provided information regarding only one, a man named Randy Wallace, who was fired five months after Bobo and after he also admitting falsifying safety ride forms. Bobo identified others about whom he specifically sought further information as follows: (1) two other supervisors, Pendleton and Jordan, who received better treatment (so Bobo claimed) because they falsely denied falsification of safety ride forms; (2) a Spears, who had falsified an audit document and like Bobo was a long-term employee without any prior disciplinary record; (3) a Hardy, who falsified time cards but was not fired; and, (4) an investigator, Barrett, who used deceptive tricks during an investigation.
The district court denied Bobo's motion that UPS be compelled to provide further information regarding the employees besides Randy Wallace relying erroneously on Mitchell v. Toledo Hospital, 964 F.2d 577 (6th Cir. 1992). The erroneous application of Mitchell was discussed in a previous post, Who Is A Similarly-Situated Comparator; The Sixth Circuit Again Clarifies.
Although the Sixth Circuit, in an opinion written by its newest member, Judge Jane Stranch of Tennessee, ruled that disputed issues of material fact existed to justify reversal of summary judgment, it advised that it was reversing "primarily because of discovery and procedural error." First, the court explained that the district court's "framing of the similarly-situated standard [was] too narrow and necessitate[d] an exact correlation not required by the law of this circuit." Martin v. Toledo Cardiology Consultants, Inc., 548 F.3d 405, 412 (6th Cir. 2008). Second, citing its prior decision in Clay v. UPS, 501 F.3d 695 (6th Cir. 2007), the court observed that an adverse inference might be drawn properly against UPS based on the "general rule ... that where relevant information ... is in the possession of one party and not provided, then an adverse inference may be drawn that such information would be harmful to the party who fails to provide it." Finally, the court noted that "Clay and this case also point to the problems inherent in allowing a defendant to control the designation of comparators by simply refusing to provide requested comparator evidence except as to those persons it selects." Accordingly, the court ordered that Bobo's discovery requests be re-examined on remand.
Robert L. Abell
www.RobertAbellLaw.com
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