Who is similarly-situated comparator employee whose different treatment suggests, indicates or proves discrimination toward a plaintiff? In a 1992 decision, Mitchell v. Toledo Hospital, 964 F2d 577 (6th Cir. 1992), the Sixth Circuit remarked that to be considered similarly-situated to the plaintiff, the comparator employee must have worked for the same supervisor. It clarified the limitations of this point later in Ercegovich v. Goodyear Tire, 154 F.3d 344 (6th Cir. 1998), where the court explained that comparator employees need be similar in all relevant aspects, a requirement that did not necessarily include the same supervisor.
The Sixth Circuit was again caused to take up the issue of who may properly be considered as similarly-situated comparator employees in Bobo v. UPS, No. 09-6348 (6th Cir., January 9, 2012), where it reversed the summary judgment granted UPS by the district court. The court, in an opinion authored by Judge Stranch, explained as follows:
- "We long ago clarified that courts should not assume 'the specific factors discussed in Mitchell are relevant factors in cases arising under different circumstances, but should make an independent determination as to the relevancy of a particular aspect of the plaintiff's employment status and that of the non-protected employee.'"
- "In Ercegovich, we concluded that the differences in job activities did not destroy comparator status because such differences do not 'automatically constitute a meaningful distinction that explains the employer's differential treatment of the two employees.' The key word in Ercegovich is 'relevant' and the case instructs that the factors listed in Mitchell or other cases are only apposite where they are meaningful to the particular claim of discrimination presented."
- Plaintiff "was not required to demonstrate an exact correlation between himself and others similarly situated; rather, he had to show only that he and his proposed comparators were similar in all relevant aspects, and, that he and his proposed comparators engaged in acts of comparable seriousness."
- "While Mitchell stated that similarly-situated employees must have dealt with the same supervisor, we later explained that the inquiry 'does not automatically apply in every employment discrimination case.' McMillan v. Castro, 405 F.3d 405, 414 (6th Cir. 2005). Moreover, we hae never read 'the same supervisor criterium' as an 'inflexible requirement.' Seay v. TVA, 339 F3d 454, 479-80 (6th Cir. 2003). Whether it is relevant in a particular case that employees dealt with the same supervisor depends on the facts presented. McMillan, 405 F3d at 414. Thus, the focus of the litigation is not on a comparison of 'the employment status of the plaintiff and other employees in every single aspect of employment.' Ercegovich, 154 F.3d at 352."
The Sixth Circuit betrays a bit of impatience (as indicated by phrases such as "We long ago clarified," "we later explained," "we have never read") and its discussion and holding aligns with other circuits who have themselves found necessary recently to address the proper analysis of the similarly-situated issue as this blog has previously discussed: Can A Supervisor Be Similarly-Situated To A Subordinate Employee and Similarly-Situated Employees Need Not Have the Same Supervisor.