No comparison in failed discrimination case

One of the most awkward phrases in the Title VII lexicon is "similarly situated." That phrase is not as bad as "adverse employment action," but it comes close. Yet, similarly-situated is an important concept that can make or break a lawsuit. It breaks this one.

The case is Perez-Dickson v. Bridgeport Board of Education, a summary order decided on January 24. Plaintiff was a school principal who was disciplined by the School Board. She said it was racial discrimination. The Board said it was her bad behavior, i.e., alleged physical abuse of students.

If you are disciplined at work and believe it was the product of unlawful discrimination, one way to win is by showing that others at work engaged in similar misconduct and were not disciplined. There may be no clearer way to prove unlawful discrimination. This is where the similarly-situated concept kicks in. To prove this unfair treatment, the other employees must have been similarly-situated to you. Having identical titles and job duties with the same supervisors is the best way to show these people were similarly-situated. If the comparators are not right on point, you can still reach a jury on this issue if they are close enough, so long as they are "similarly-situated in all material respects."

Plaintiff cannot prove that here, the Court of Appeals (Raggi, Chin and Lohier) says, because none of the comparators held the title of school principal, and most were only accused of a single act of misconduct, unlike the plaintiff, whose actions were preserved on videotape. My guess is that if plaintiff was the principal, she was also held to a higher standard than any of her comparators.

Remember when we were kids? We got caught doing something wrong and said that everyone else was doing it. Why are you picking on me? We do it as adults also. You can get pulled over for speeding and while the officer writes you a ticket, others whiz by at 100 miles an hour. Our parents and teachers did not put up with that crap. But that argument works in discrimination cases. The law is a wonderful thing.