A terminated licensed practical nurse could
not establish a prima facie case of racial discrimination where she did not
identify a nonminority employee who was similarly situated to her in all respects—namely,
that another employee had as many unexcused absences from work or falsified
patient assessment records without discipline as she did.
J. Siegel, Esq.
In Shockley v. HealthSouth Cent. Ga. Rehab. Hosp.,
2008 U.S. App. LEXIS 20071 (11th Cir., Sept. 17, 2008), the plaintiff sued following
her termination, alleging race discrimination and retaliation in violation of
Title VII of the Civil Rights Act of 1964. The district court granted summary
judgment on each of her claims.
According to the court, Ms. Shockley could not show differences between the
disciplinary actions received by her and by other employees who were similarly
situated. Her evidence that other employees were involved in falsifying patient
medical records was based largely on inadmissible hearsay and occurrences about
which she lacked personal knowledge. Specifically, she alleged that she witnessed
her supervisor complete information on the medical chart of a patient to whom
he had not provided care, although she admitted that she lacked knowledge of
which patient charts were signed by her supervisor.
The plaintiff Shockley also alleged that she overheard two registered nurses
discussing that they signed patient charts on behalf of other nurses. Ms. Shockley,
again, could not offer testimony to corroborate these occurrences.
The court observed that Ms. Shockley did not show either (1) that any other
employee had as many unexcused absences from work as she did or (2) that any
other employee falsified patient assessment records without discipline. Because
she failed to identify any nonminority employee who was "similarly situated
in all relevant respects," the court held that she failed to establish a prima
facie case of discrimination and affirmed the district court's ruling.
Generally, an employment discrimination claimant must show that the employer
discriminated because of membership in a protected group. A common way of proving
discriminatory intent is for the plaintiff to identify to a similarly situated
employee (comparator) whom the employer treated differently. A number of courts
have required a plaintiff to prove, as part of the prima facie case, that he
or she was treated differently than similarly situated employees who were not
members of the protected group. To establish that similarly situated status,
a claimant is required to show that other employees, who were not in the protected
class, were treated better, including showing that those individuals dealt with
the same supervisor, were subject to the same standards, and engaged in the
same conduct (without any mitigating or distinguishing circumstances). Clearly,
this narrow requirement makes it more difficult for plaintiffs to establish
a claim of discrimination because distinctions between employees can always
The Circuit Courts of Appeal are split about whether employment discrimination
plaintiffs must point to a similarly situated plaintiff as part of their prima
facie case. In six Circuits—the Fourth, Fifth, Seventh, Ninth, Eleventh, and
the District of Columbia—the courts generally require that the quantity and
quality of the comparator's misconduct be nearly identical. Three Circuits—the
First, Second, and Tenth—reject the requirement. The Third, Sixth, and Eighth
Circuits remain undecided.
Opponents of the "similarly situated" concept argue that courts should not
require a similarly situated showing as an element of the plaintiff's prima
facie case because it allegedly is possible to prove discriminatory intent in
a number of ways, and such a rigid requirement makes demonstrating a prima facie
case onerous. In contrast, employers argue that such a requirement is essential,
in the absence of direct evidence of discrimination, to prove discriminatory
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