Las Vegas POA

The Need For Very Close ‘Comparators’ In Discrimination Cases

Written on 12/10/2020
Will Aitchison

Nicole Wells was a corrections officer at the Lakeland Correctional Facility in Michigan. While still on probation she was terminated for following improper security procedures while assigned to a gate and for repeated personal use of the Employer’s computers.

Wells filed a discrimination lawsuit under both Title VII of the Civil Rights Act and its Michigan counterpart. Wells’ primary argument was that she was treated more harshly than non-African American “comparator” employees.

The Michigan Court of Appeals rejected the lawsuit. The Court noted that “Wells is correct that she can attempt to prove discrimination by showing that she was treated unequally to a similarly-situated employee who was not African American. An employer’s differing treatment of employees who were similar to the employee in all relevant respects, except for their race, can give rise to an inference of unlawful discrimination. However, to give rise to such an inference of discrimination, the comparable employees must be nearly identical to the employee in all relevant respects.

“With regard to the gate incident, Wells referred to two other officers who were involved, Julie Ferguson and Sergeant Beacham, and claimed that they were non-African American similarly situated employees. But Wells failed to prove that either Ferguson or Beacham were probationary employees. In fact, Beacham was a Sergeant. She also did not prove that they were performing the same assignment as Wells at the time of the incident – that of the gatekeeper at Lakeland Correctional Facility. In other words, from the record evidence it appears that only Wells was assigned to check the identification of prisoners coming through that facility’s gate.

“And with regard to the computer usage issue, Wells likewise failed to prove that any non-African American probationary employee was caught using the work computers for personal reasons to the same extent as Wells and yet was not disciplined. In fact, defendant’s discipline coordinator averred in her affidavit that she had never seen another investigatory report showing so much non-work-related computer usage. Moreover, and again, Wells admitted that she was given a copy of the computer use policy but she did not read it.

“Although Wells argues that the records produced by defendant did not demonstrate that any other employee was terminated for personal computer usage, Wells also was not terminated for computer usage. Rather, Wells was terminated because she was already on an extended probationary period for an unsatisfactory performance rating and this was her second major rule violation during her short tenure. Further, other than listing names of other employees who supposedly used work computers for personal reasons, no other information was provided, and thus, no reasonable comparison could be made as to whether they were actually similarly situated employees.”

Wells v. Department of Corrections, 2020 WL 6111625 (Mich. Ct. App. 2020).

The post The Need For Very Close ‘Comparators’ In Discrimination Cases appeared first on Labor Relations Information System.