One way for an employee to prove unlawful intent is evidence that other, similarly-situated employees received better treatment. The similarly-situated employees must be similarly-situated in all relevant aspects, which is not the same as all aspects and certainly does not require, as the Sixth Circuit in other courts have advised time and again that the other, similarly-situated employees share the same supervisor.
- "Similarly Situated" Employees Need Not Have the Same Supervisor;
- Is It A Prerequisite In Discrimination Cases That A Comparator Have the Same Supervisor As The Plaintiff?;
- How Important Is Whether A Comparator Was Working For the Same Supervisor?;
- Once Again, The Sixth Circuit Rules That A Similarly-Situated Comparator Need Not Have Worked For The Same Supervisor.
The Sixth Circuit again elaborated on the similarly-situated doctrine in its recent decision, Benison v. Ross, No 13-2554 (September 3, 2014), where it reversed a summary judgment granted by the district court.
Kathleen Benison was a tenured faculty member at Central Michigan University (CMU). She applied for and was granted a paid sabbatical, which carried a condition that she work at CMU for at least one year following her return or repay what she was paid while on sabbatical. But while Kathleen was on sabbatical her husband, an undergraduate student at CMU, had a material role in sponsoring a no-confidence vote regarding the CMU President. So bad blood arose upon her return and forced Kathleen to resign. CMU, in an ill-advised fit of pique, sued Kathleen for repayment of the money paid her while she was on sabbatical. She filed suit subsequently claiming retaliation against her based on the First Amendment protected-activity of her husband with regard to the university president.
Kathleen cited the suit filed against her by CMU as proof of its retaliatory intent. She offered evidence regarding four other CMU faculty members, who "in the past ten to fifteen years" had similarly resigned their positions before working for the university for one year following their sabbaticals. For these four "CMU waived the obligation to repay compensation for three and chose not to file a lawsuit to enforce the contract against the fourth." This evidence was sufficient to raise an inference of causation given the disparate treatment and the Sixth Circuit explained further as follows:
A plaintiff who chooses to prove retaliatory intent by using comparative ors must show that he "and the employee with whom [he] seeks to compare himself ... [are] similar in all of the relevant aspects." Ercegovich v Goodyear Tire & Rubber Co, 154 F3d 344, 352 (6th Cir. 1998). However, when the sample size of possible comparable employees is small, a court should not apply the "similarly-situated" requirement so stringently that it "deprive[s a plaintiff] of any remedy to which he may be entitled under the law." Jackson v. FedEx Corp Servs, Inc, 518 F3d 344, 352 (6th Cir. 2008).
This is a common-sense formulation, recognizing simply that this evidence is enough for a jury to ponder fairly and draw from it (or not) inferences either way. The similarly-situated doctrine, like any evidentiary doctrine, must be flexible and adaptive to context. The Seventh Circuit stated this best in Elkhatib v Dunkin Donuts, Inc, 493 F3d 827 (7th Cir 2007):
The similarly-situated requirement should not be applied mechanically or inflexibly, but rather is a common-sense flexible inquiry that seeks to determine whether there are enough common features between the individuals to allow a meaningful comparison. Substantial similarity, not complete identity, is required.
