The Sixth Circuit's decision earlier this year in Jackson v. VHS Detroit Receiving Hospital offers an excellent example of the correct analysis of comparator proof in discriminatory discipline cases. Judge Eric Clay's opinion shows the type of care and attention to detail all too rare.
The plaintiff, Karon Jackson, worked as a mental health technician at the hospital. Her duties included handling the discharge of psychiatric patients. She was a 15 year employee when she was fired in 2013; she had received consistently good performance evaluations. One of the duties in discharging the psychiatric patients was checking their ID bands to make sure the right patient was being discharged. Jackson and an RN both failed to check the ID band of a patient that was mistakenly discharged. The patient, however, later returned to the hospital without incident or injury. Nevertheless, Jackson was terminated.
Jackson filed a sex discrimination suit following her discharge. She pointed to differential discipline imposed on two male colleagues, a Duncan and a Little, as her principal proof of gender discrimination. The district court, Judge Stephen Murphy, ruled that Jackson's conduct was too dissimilar from Duncan's and/or Little's to be fairly comparable and granted the hospital a summary judgment.
The Sixth Circuit reversed. It explained that Jackson's conduct should be compared with Duncan's and Little's both as to whether she presented a prima facie case of discrimination and as to the issue of pretext.
With regard to the prima facie case analysis the Sixth Circuit advised that "we look to whether the comparators' actions were of comparable seriousness to the conduct for which Plaintiff was discharged. A plaintiff is not required to show that this proposed comparator's actions were identical to his own." One of the comparators, Duncan, had likewise failed to check a patient's ID when discharging the patient and, as a result, the incorrect patient had been discharged. At the time of this incident, Duncan was subject to a "last-chance agreement" because of, among other things, a failed drug test. Little also had a prior disciplinary history; he failed to check a patient for weapons upon the patient's admission and was cited for the same infractions as was Jackson.
The district court had asserted that Jackson could not cited Little as a comparator, because he had never discharged the wrong patient. This was error, the Sixth Circuit pointed out: Jackson did not need to show that the comparator's conduct was identical, only that it was of comparable seriousness. The hospital's reference to the same sections of its handbook as violated by Jackson and Little showed this.
The Sixth Circuit again returned to comparing Jackson's with Duncan's and Little's conduct when examining the issue of pretext. This entailed "a change in the rigor with which we evaluate Jackson's similarity to her comparators; it is not an increase in the weight of her evidentiary burden." The court described its analytical focus as follows:
When conducting this more rigorous comparison, we again focus on the severity of the differently treated employees' actions. The relative severity of two actions is not determined solely by whether those actions violated the same company rule or policy. Instead, employers -- and therefore courts -- are free to consider both the actual and potential consequences of the employee's actions.
Considering actual consequences makes some sense, but getting into the area of potential consequences - an area necessarily prone to speculation -- is problematic; perhaps also, some would say, a convenient way for a judiciary hostile to employment discrimination cases to justify their dismissal. Here, the court punts a bit: it first asserts that "whether differences in ... hypothetical injuries justified differential discipline is a task better suited for a jury." Second, the court asserted that the potential consequences from Duncan's conduct were much more apparent when the mistake occurred, a fact that the court said favored Jackson.
As to Little, both his and Jackson's infractions "were cited as violating the same two major infractions [which] indicates that those mistakes were substantially identical in terms of potential disciplinary consequences." They were also "identical in the severity of their actual consequences: neither employees' violation resulted in harm to patients or staff." The potential consequences were also sufficiently similar, since some grave potential risk surrounds both discharging erroneously a psychiatric patient and allowing one to bring three weapons into the hospital.
A final factor the Sixth Circuit cited in Jackson's favor was the gender disparity among the mental health techs. Jackson was the only female out of 14, although their overall work unit was predominantly female: "the fact that Jackson was the only female out of fourteen MHTs supports her contention that [the hospital] preferred males for that particular position."
What do we gain out of this: (1) Jackson had a better work record than either Duncan or Little; they had some fairly significant disciplinary history while she had good performance reviews; (2) they were all cited for infractions that regarded the same policy interests of the hospital; (3) the actual consequences of the violations were the same: there was no harm to either patient or staff; and, (4) the potential consequences - harm to either patient or staff -- were the same also. This plus the gender disparity among Jackson and her colleagues was enough to create a fact issue for trial to be resolved by a jury. One can see that it would be reasonable to conclude that a different and tougher standard was being applied to Jackson, a female, as opposed to her male colleagues.