Although the court affirmed a summary judgment on a sex discrimination claim, the Ninth Circuit did set forth and reject the oft-repeated notion that "similarly situated" employees should have the same supervisor in Hawn v Executive Jet Management, No 08-15903 (9th Circuit, August 16, 2010).
The court began its analysis by observing as follows:
- Whether two employees are similarly situated is ordinarily a question of fact. The employees' roles need not be identical; they must only be similar "in all material respects." Materiality will depend on context and the facts of the case.
- Generally, individuals are similarly situated when they have similar jobs and display similar conduct.
The court then rejected any requirement that similarly situated employees have the same supervisor, explaining as follows:
We do not exclude the possibility that the presence or absence of a shared supervisor might be relevant in some cases. But here, the undisputed facts demonstrate that whether plaintiffs and the female flight attendants shared the same direct supervisor should not have been determinative of whether they were similarly situated, because plaintiffs direct supervisor, Chakerian, was excluded from the decision to terminate them. Instead, the decision to terminate plaintiffs was made directly by Executive Jet's president, Albert Pod. The fact that plaintiffs and the female flight attendants had different direct supervisors did not render them dissimilar in a material respect, because the relevant decision-maker, Albert Pod, was aware of both the allegations against plaintiffs and the allegations plaintiffs had made against the female flight attendants. Similarity between two persons or groups of people is a question of fact that cannot be mechanically resolved by determining whether they had the same supervisor without attention to the underlying issues.
Robert L. Abell
www.RobertAbellLaw.com