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Federal Employees: You be the Judge


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wizard  
#1 Posted : Wednesday, February 08, 2012 9:53:20 PM(UTC)
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Let's discuss similarly situated. How do the courts define similarly situated employees?
Knight  
#2 Posted : Wednesday, February 08, 2012 11:01:17 PM(UTC)
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Let me GOOGLE that for you.
 
 
wizard  
#3 Posted : Wednesday, February 08, 2012 11:45:30 PM(UTC)
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Knight wrote:
Let me GOOGLE that for you.
 
 
Care to discuss some of the results of that google search? Or were you just trying to be a smart ass?Tongue
Knight  
#4 Posted : Wednesday, February 08, 2012 11:50:02 PM(UTC)
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Being a smart ass of course. All I can do is read the links and guess at it since I am not in the law profession. It looks to me a person has to be a twin/clone of you to be truly called a "similarly situated employee." Or as close as an office situation allows.
Tryno  
#5 Posted : Thursday, February 09, 2012 2:23:54 AM(UTC)
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Wizard I really think you need hire an attorney, or if you have one - fire him/her and hire a new one.  The one your getting advice from now isn't going help you much. 
wizard  
#6 Posted : Saturday, February 11, 2012 4:36:47 AM(UTC)
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It is true that in the context of allegations of discriminatory discipline, this court has looked to whether the plaintiff and others with whom he seeks to compare himself worked under the same supervisor. See, e.g., Aramburu v. Boeing Co., 112 F.3d 1398, 1404, (10th Cir. 1007). When, as here, the plaintiff contends he is the victim of the discriminatory application of a facility-wide policy and has other evidence of that policy, however, we have specifically held that the failure of the plaintiff and affiant to share the same supervisor does not preclude the consideration of that evidence of disparate treatment. See Horizon/CMS Healthcare, 220 F.3d at 1198 n.10 ("Defendant, however, has not demonstrated how the `same supervisor' test is legally relevant to the inquiry of whether [plaintiff has] been the victim[] of an allegedly discriminatory company-wide policy. Thus, the fact that [plaintiff] and the affiants did not share the same supervisor does not preclude consideration of [affiants'] evidence.") We believe this holding is equally applicable to Mr. Gossett's allegation that the Nursing School routinely discriminated on the basis of gender in applying its school-wide policy of allowing failing students to receive incomplete grades and extra time to improve their performance.



wizard  
#7 Posted : Saturday, February 11, 2012 4:42:26 AM(UTC)
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NOT NECESSARY TO SHOW THAT A SIMILARLY SITUATED PERSON WAS TREATED DIFFERENTLY

Saenz v. Department of the Navy, EEOC Request No. 05950927 (January 9, 1998).

The agency rated appellant as “Exceeds Fully Satisfactory” on her 1992 annual performance appraisal. She filed an EEO complaint alleging that she should have received an “Outstanding” rating, and that her given rating was prompted by national origin (Hispanic), sex, and age discrimination and reprisal. A GS-12 Personnel Management Specialist, appellant compared her treatment with a Satellite Branch Manager (Hispanic male) who worked for the agency at another facility. He was rated “Outstanding.” The agency Personnel Director had rated both employees. An EEOC AJ in a recommended decision found no national origin or age discrimination but did find sex discrimination and retaliation. He found that the agency gave the comparison employee credit for work that appellant and her staff performed. In a later appellate decision, the Commission ruled those findings proper. 

The agency filed a request to reconsider, arguing that appellant could not establish a prima facie case of sex discrimination because she was not similarly situated to the comparison employee, and therefore could not show that she was treated less favorably. The Commission, while recognizing the frequency with which the “similarly situated” standard is used, stated that it is not mandatory for an appellant to follow it. Rather, an appellant must present evidence which would support an inference of discrimination. The Commission found that appellant here was arguing, in essence, a case of “sex-plus” discrimination; that is, the Personnel Director treated her, an Hispanic female, less favorably than he treated non-Hispanic females and all males. Appellant and several other witnesses testified that the Personnel Director treated Hispanic women more harshly than he treated other persons under his supervision. The Commission decided that the testimony supported an inference of discrimination. The Commission went on to decide that the agency’s articulated reasons for appellant’s rating were a pretext for sex discrimination and reprisal. The agency was ordered to raise appellant’s 1992 performance appraisal to “Outstanding,” and to consider the request for compensatory damages that she had raised during the hearing before the AJ.



wizard  
#8 Posted : Sunday, February 19, 2012 1:54:21 PM(UTC)
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Ninth Circuit Provides Clarity on Similarly Situated Standard for Discrimination Cases


On August 16, 2010, the United States Court of Appeals for the Ninth Circuit affirmed the United States District Court for the District of Arizona's grant of summary judgment in favor of former employer Executive Jet Management ("Executive Management") against three former employees Gregory Hawn, Michael Prince and Aric Aldrich ("Plaintiffs") on their Title VII sex discrimination claims. In Hawn, et al. v. Executive Jet Management, Case No. 08-15903, the Ninth Circuit found that a determination of whether plaintiffs are similarly situated to other employees is a factual inquiry that can be resolved on summary judgment. The answer may turn on whether the same or similar misconduct is perceived to be unwelcome or complaints arise from it. The court further held that no per se rule of admissibility for all documents related to an Equal Employment Opportunity Commission ("EEOC") inquiry exists. 


Plaintiffs were male pilots who were terminated after a female flight attendant, Robin McCrea, alleged that Plaintiffs sexually harassed her and created a hostile work environment through a variety of conduct including sexualized and crude banter, jokes, and sharing of crude and/or pornographic emails and websites. Within a few days of a training session in which Ms. McCrea alleged plaintiff Aldrich behaved inappropriately, Ms. McCrea complained to her supervisor, and her supervisor reported the complaint to the Human Resources Director. Ms. McCrea then faxed a letter claiming she experienced a hostile work environment and requested a transfer. In response, the Chief Pilot interviewed Plaintiffs, Ms. McCrea as well as other relevant witnesses, and made a report of his findings. Among other findings, this report indicated that Plaintiffs were "shocked" by the allegations because Ms. McCrea had participated in and often encouraged this type of behavior about which she now complained. 


A few days later, Ms. McCrea faxed another letter to the Human Resources Director detailing her allegations against plaintiff Aldrich, and including allegations against the remaining Plaintiffs and others. Executive Jet then hired an independent investigator to review these more detailed allegations. The findings of the independent investigator included that certain instances of a few of the behaviors were confirmed, while a greater number of incidents were either unconfirmed, denied or told in a different manner. Plaintiffs were terminated on April 18, 2003. 


In addition, during the two month investigation by Executive Jet's independent investigator, Ms. McCrea also filed a discrimination charge with the EEOC on January 27, 2003. In July 2003, the EEOC issued a determination of the merits of Ms. McCrea's complaint and found, in part, that "the evidence revealed that Respondent fostered a hostile work environment created by demeaning, crude, derogatory sex based remarks." 


Plaintiffs filed their own claim of discrimination with the EEOC in February 2004, and all claims were dismissed. Plaintiffs then filed an action in the district court alleging discrimination on the basis of race, sex and national origin in violation of Title VII. In sum, Plaintiffs complained their terminations were discriminatory because Executive Jet was aware of similar behavior from female employees who were not disciplined or terminated for such conduct. Plaintiffs also sought to strike and exclude all evidence of, and reference to, the EEOC's determination regarding Ms. McCrea's charge. The district court entered summary judgment in favor of Executive Jet on the grounds that Plaintiffs failed to establish a prima facie case of employment discrimination and failed to raise a triable issue of material fact as to pretext. Plaintiffs appealed the decision only as to the gender discrimination claim and to the court’s ruling to exclude the evidence relating to the EEOC's determination of Ms. McCrea's charges. 


The Ninth Circuit reviewed the district court's entry of summary judgment de novo and analyzed Plaintiffs' claims under the burden shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The Ninth Circuit primarily focused on the element of the prima facie inquiry as to whether similarly situated employees engaged in similar conduct but received more favorable treatment. The district court had previously found the employees were not similarly situated on two different grounds: (1) they did not report to the same supervisor, and (2) Plaintiffs' conduct gave rise to a complaint whereas Ms. McCrea's did not. As an initial matter, Plaintiffs claimed the district court engaged in an overly narrow inquiry by focusing on the similarity of the situation between themselves and the female employees rather than examining whether the inference of discrimination was supported on the record as a whole. The Ninth Circuit reasoned that "

laintiffs' case relies on a comparison between themselves and a group of female employees….The district court did not err by focusing on the inference of discrimination that is central to

laintiffs' case." 


As to the first point of the district court's finding, the Ninth Circuit did find that the court incorrectly applied the "same supervisor" requirement. While the Ninth Circuit acknowledged that the presence or absence of a shared supervisor might be relevant in some cases, it was not relevant here because Plaintiffs' supervisor was excluded from the decision to terminate, and the relevant decision maker, Executive Jet's President, was aware of both the allegations against Plaintiffs' and what Plaintiffs alleged against the females. As such, based on these facts, determining similarity solely on the basis that plaintiffs shared the same supervisor as the females was not appropriate. 


On the second point, however, the Ninth Circuit confirmed that the pilots and the female flight attendants were dissimilar because alleged conduct of the female was not unwelcome and did not result in a complaint. This dissimilarity was an independent and sufficient basis to affirm the district court's summary judgment. Here, it was undisputed that at least some of the instances of sexually harassing behavior occurred in the manner alleged by Ms. McCrea. It further was undisputed that Plaintiffs' did not complain of the behavior of the female flight attendances until made defensively in response to accusations against them, and even then, did not lodge a formal complaint or claim to have found the conduct harassing or unwelcome. The Ninth Circuit noted, "[w]e have distinguished misconduct by one employee from misconduct by another employee on the basis of whether it prompted complaints or consternation by other employees." As such, the difference between Plaintiffs' conduct, which was the subject of complaints of harassment and as unwelcome conduct, in contrast to the behavior of the female flight attendants, neither the subject of formal complaint (other than raised in defense) nor unwelcome, was properly taken into consideration when the district court found them to be dissimilar and entered summary judgment in favor of Executive Jet. 


Finally, as to the admissibility of the EEOC documents, the Ninth Circuit clarified that its holding in Plummer v. Western International Hotels Co., 652 F.2d 502, 505 (9th Cir. 1981) allowing a plaintiff the right to introduce an EEOC probable cause determination in a Title VII lawsuit "did not establish a per se rule of admissibility of all EEOC documents." The cour confirmed that the district court should instead exercise its discretion to admit or exclude a letter of violation. In this case, the admission of the EEOC determination was not considered to be an abuse of discretion because the district court was exercising its discretion in weighing its admissibility and Plaintiffs made no showing of prejudice from the admission. 


The main lesson learned from Hawn is that whether parties are similarly situated depends on the unique factual situation in each case, and what the plaintiff himself pleads. In this particular factual configuration, Plaintiffs were found not to be similarly situated with the female employees (and summary judgment proper), because of Plaintiffs' own reliance on this group of individuals for purposes of comparison, and the fact that Plaintiffs never complained about the female employees' conduct nor did they report it to be harassing or unwelcome. 



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