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Eleventh Circuit Court Requires Comparables "Similarly Situated in All Respects"

December 2008

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.

by Paul J. Siegel, Esq.
Jackson Lewis LLP

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 be recognized.


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 intent.

Opinions expressed in Expert Commentary articles are those of the author and are not necessarily held by the author's employer or IRMI. Expert Commentary articles and other IRMI Online content do not purport to provide legal, accounting, or other professional advice or opinion. If such advice is needed, consult with your attorney, accountant, or other qualified adviser.

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