Judge Robin Rosenbaum, U.S. Court of Appeals for the Eleventh Circuit
A split federal appeals court slightly eased the standard it uses to determine when workers qualify to pursue employment discrimination lawsuits and created a circuit split along the way.
Observers say Lewis v. City of Union City might be a vehicle for the U.S. Supreme Court to clear up litigation of the viability of workplace bias claims.
The full U.S. Court of Appeals for the Eleventh Circuit retreated Thursday from its former standard, which said employees to be considered "similarly situated" had to present "nearly identical" facts to survive dismissal.
The majority stepped away from that high bar, ruling employees who say they've faced discrimination can point to differing treatment accorded fellow workers under "same or similar" conditions. Using its old standard, the Atlanta court killed more lawsuits than other circuits.
But the panel on a 9-3 vote said courts must do that analysis early in the litigation. In a 100-page opinion, the majority said similarity “in all material respects” must be determined early in the litigation to survive summary judgment.
The majority decision, written by Judge Kevin Newsom, concluded that under either standard, the trial judge was correct to dismiss claims by former Union City, Georgia, police officer Jacqueline Lewis, who is black, that she was a victim of racial, gender and disability discrimination when she was fired in 2010 shortly after refusing to undergo a Taser shock or be pepper-sprayed.
A factual key to Lewis’ case was evidence that two white, male detectives had been given substantial time off to deal with health issues. She has heart disease.
Concurring in Newsom's opinion were Chief Judge Ed Carnes and Judges Gerald Tjoflat, Stanley Marcus, Charles Wilson, William Pryor, Adalberto Jordan, Elizabeth Branch and Britt Grant.
While Circuit Judge Robin Rosenbaum welcomed the court's decision to walk away from the "nearly identical" standard, she said in a forceful dissent that the majority's position on timing outweighed its impact, tilting the playing field radically in favor of employers.
The majority opinion “drops an anvil on the employer’s side of the balance” in such cases, wrote Rosenbaum, who was joined in the dissent by Judges Beverly Martin and Jill Pryor.
In a footnote, Newsom disputed the dissenting judges’ “colorful characterization" of the majority opinion, “particularly given that we are rejecting as too strict the ‘nearly identical’ standard that has pervaded our case law for decades.”
The trial judge in the case, Judge Richard Story dismissed Lewis’ case, but in 2017 a three-judge panel of the Eleventh Circuit, divided 2-1, overruled him and revived the case. Rosenbaum and Senior Judge Lewis Kaplan of the U.S. District Court for the Southern District of New York, sitting by designation, said Lewis’ case should have been allowed to proceed, while Tjoflat dissented.
One key question in presenting a prima facie case of discrimination, Newsom wrote, is just how “similarly situated” a plaintiff and her comparators must be. He wrote a history of the court's standard and concluded, “It’s a mess.”