Co-worker with different supervisor is appropriate comparator under Title VII

Lee v Kansas City S Ry Co, ___F.3d___(5th Cir. June 30, 2009), is an important decision to be aware of. The 5th held that a white coworker was an appropriate comparator to a discharged African-American train engineer even though they had different supervisors. The 5th held that the white coworker was similarly situated and thus, the African-American employee made out a prima facie case of racial discrimination. The engineer was fired by his supervisor for disregarding a stop signal and failing to contact his dispatcher for clearance to proceed. The labor relations director declined to grant him leniency that would have reinstated him, but he had granted such leniency to a white coworker who was fired for failing to stop his train at a signal.
The court stated that an employee who proffers a fellow employee as a comparator must show that the employment actions at issue were taken “under nearly identical circumstances.” However, “nearly identical” is not synonymous with “identical.” The comparators here held identical jobs and compiled a similar number of serious moving violations over the same period, including an identical infraction for which the engineer was fired and his coworker was granted leniency. Moreover, their ultimate employment status was decided by the same person. “It is sufficient that the ultimate decisionmaker as to the employees’ continued employment is the same individual, even if the employees do not share an immediate supervisor,” the Fifth Circuit wrote, reversing summary judgment to the employer.

Mitchell H. Rubinstein