Apples and oranges do not make a Title VII claim

Employment discrimination cases are harder to win the plaintiff has done something wrong. The plaintiff can say that she was singled out and that management looked the other way when male workers screwed up, but these disparate treatment cases face a high hurdle, and the Second Circuit is not too fond of them.

The case is Desir v. City of New York, a summary order decided on November 2. Desir was a probationary teacher who got unsatisfactory ratings for the 2004-05 school year and was relieved of his duties. The Second Circuit (Livingston, Walker and Straub) summarizes Desir's case: "Desir principally relies on the fact that he was both the only African-American teacher of the five who received unsatisfactory ratings for the 2004-2005 school year and the only one of those five who was fired." Now, if you are not that familiar with Title VII law, this might seems a good case. Desir was singled out, right? What about the teachers who got unsatisfactory ratings who weren't fired?

The problem with Desir's case is that the white teachers were not similarly-situated to Desir. They are not comparable because these other teachers were all tenured. Desir was a probationary teacher. He therefore was not subject to the same performance standards as the other teachers. In order to win a disparate-treatment case like this, you have to be "subject to the same performance evaluation and discipline standards and engaged in comparable conduct." Since Desir was a newer teacher still on probation, he is held to different standards to the tenured teachers who got unsatisfactory ratings. As far as the Court of Appeals is concerned, this is apples and oranges.

Desir also sued under the First Amendment. He cannot do so because the speech he claims prompted his retaliatory termination was not on a matter of public concern. It was a personal matter. "Although Desir argues he addressed organizational problems with the home instruction program and not just personal matters, his speech fundamentally concerned his own entitlement to privileges as a home instructor and therefore cannot be considered to have encompassed matters of public concern."