San Antonio Court of Appeals Rejects Race Discrimination Claim Because the Plaintiff Failed to Show That Other Employees Were Similarly Situated
The San Antonio Court of Appeals considered a race discrimination claim in Grice v. Alamo Community College District, No. 04-12-00524-CV (Tex. App. -- San Antonio April 24, 2013) (memorandum opinion).
The plaintiff was a black man who worked for ACCD in an administrative position. He had a sexual relationship with a temporary employee who was initially under his direct supervision and later under his indirect supervision. He claimed that the relationship was consensual, but nonetheless she filed a sexual harassment complaint against him. After ACCD investigated the matter, it fired the plaintiff.
The plaintiff then brought a claim for race and sex discrimination. ACCD moved for summary judgment, and the trial court granted the motion. The issue on appeal was whether the plaintiff had established a prima facie case of race discrimination. (Apparently, the plaintiff had no evidence of sex discrimination, and the court summarily affirmed the summary judgment on that claim.)
The plaintiff claimed that he had established a prima case because ACCD had not fired other non-black employees who were similarly situated. The court stated the legal standard as follows:
ACCD conceded for the limited purpose of the summary judgment proceeding that Grice could establish the first three elements of his prima facie case (member of a protected class; qualified for his position; and terminated by the employer). However, it moved for summary judgment on the ground that there was no evidence Grice was treated less favorably than similarly situated females or non-African-American employees. In this context, "[e]mployees are similarly situated if their circumstances are comparable in all material respects, including similar standards, supervisors, and conduct." To be evidence of discrimination based on disparate discipline, "the disciplined and undisciplined employees’ misconduct must be of ‘comparable seriousness.’" "The situations and conduct of the employees in question must be ‘nearly identical.’" "Employees with different responsibilities, supervisors, capabilities, work rule violations, or disciplinary records are not considered to be ‘nearly identical.’"
(citations omitted). Applying that standard to the facts of the case, the court rejected the plaintiff's argument with respect to an Hispanic employee:
Grice relies primarily on the case of Larry Y., a Hispanic male, against whom a claim of sexual harassment complaint was filed in 2006. Larry Y. was a Recruiter Advisor at St. Philip’s College and was found to have committed sexual harassment against a co-worker. He did not have any supervisory authority over the complainant, nor did he make any hiring, firing, or promotion decisions or exercise direct authority over any subordinates. The investigative committee recommended Larry Y. be disciplined, but not terminated.
We agree with ACCD that Larry Y. was not situated similarly to Grice. Unlike Larry Y., Grice directly supervised the complainant he was found to have sexually harassed. Grice held an upper-level management position at the college and had responsibility for hiring and supervising subordinates. Larry Y. had no supervisory responsibilities. Moreover, as Interim Dean, Grice was expected to provide direction and leadership to other staff. These circumstances place Grice in a significantly different position than Larry Y.
The court also rejected an argument based on a rumor that the plaintiff had heard about another employee:
The incomplete information in the record about the adjunct professor Dr. Loston referred to in April 2009 does not support Grice’s prima facie case. The record does not establish the adjunct’s conduct or the findings of any investigation with any degree of certainty. Thus there is insufficient information to show the adjunct was similarly situated to Grice. Further, there is no evidence in the record that an adjunct professor found to have had a relationship with a student was allowed to remain employed at the college and therefore no evidence of more favorable treatment.
The court therefore affirmed the summary judgment in favor of ACCD.
The lesson from this case for employers is that it is important to be consistent in disciplinary decisions. If ACCD had imposed a lesser sanction against an employee who was similarly situated to the plaintiff, the result of the case might have been different. The focus would have shifted to whether the plaintiff could show that the reasons for his firing were pretextual or whether ACCD had mixed motives. The plaintiff might have had evidence to support such a finding.
The lesson for employees is that the courts are strict when it comes to whether a co-worker is similarly situated. Unless there is a clear example of disparate treatment, it will be hard to persuade a court that the plaintiff has established a prima facie case. There are other ways to establish a prima facie case, such as showing that the plaintiff was replaced by someone who is outside of the protected class. For example, if the plaintiff in this case had been replaced by a white or Hispanic employee, then there would be no need to focus on similarly situated employees in order to establish a prima facie case. Presumably, this was not true for the plaintiff in this case.
David C. Holmes is a Houston employment lawyer with The Law Offices of David C. Holmes