Wednesday, June 7, 2017

"The other guy did it also" provides no basis for Title VII relief

Yet another Second Circuit ruling reminds us how difficult is is to show that you suffered discrimination because other guys at work who also broke the rules were not punished.

The case is Diggs v. Niagara Mohawk, a summary order decided on May 31. I was in court when this case was being argued, waiting to argue my own case. The plaintiff's lawyer told the Court of Appeals (Kearse, Livingston and Lohier) that he was an experienced lawyer and believed it was getting harder and harder to win racial discrimination cases without explicit evidence of racial bias, i.e., racist statements. The judges listened quietly before asking questions about the plaintiff's honesty.

Under the rules, if management singles you out for discipline but lets others get away with misconduct, you can bring a Title VII case if you and the others were "similarly situated in all material respects." I cannot tell you how much I loathe the phrase "similarly situated," a clunky choice of words that cannot be understood by non-lawyers. The better word is 'comparable." Anyway, plaintiff -- disciplined for using a company backhoe for personal reasons without permission and then lying about -- is not comparable to the others at work who broke the rules. The case is dismissed.

Not only did plaintiff lose an arbitration hearing arising from these shenanigans (which gives the employer an advantage in federal court), it is not quite true that he did not mislead management about what he had done. We also cannot say the other wrongdoers were comparable to plaintiff.

It is true that Diggs never explicitly stated that he did not use the backhoe to try and remove a tree stump. However, it is undisputed that, despite a series of questions about what he did with the backhoe, Diggs contended that he had used the backhoe for transportation only and did not tell the company representatives that he used the backhoe to try and remove the stump until they presented the photographs to him. Second, Diggs points to the fact that the company convened two meetings about Contento’s misconduct as evidence that Contento was similarly dishonest during those proceedings. But this fact, standing alone, does not constitute strong evidence that Contento or any of Diggs’s alleged comparators were dishonest during their investigations. Indeed, Diggs points to no record evidence that Bain, Walker, and Contento lied about their conduct during the
investigatory meetings and further concedes that there is no evidence that Bailey was dishonest. Diggs’s speculation is insufficient to raise a genuine issue of material fact. We agree with the district court that in these circumstances, Diggs’s showing falls short of the “strong evidence” required to determine that the arbitrator’s decision was wrong as a matter of fact. Based on this record, a reasonable jury could not conclude that Diggs was similarly situated to his comparators.

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