Employers facing workplace discrimination claims in the 6th Circuit should find some comfort in the court’s recent decision in DeBra v. JP Morgan Chase & Co., which endorses a heightened standard for plaintiffs to demonstrate that they were treated less favorably than similarly situated employees outside their protected class.
The plaintiff worked as a bank teller for Chase until she was terminated for on-the-job errors, such as overpaying customers, leaving bank funds unsecured on counters and accidentally failing to return bank cards to several customers. She alleged, however, that the bank’s reliance on these errors for her termination was really a pretext for age discrimination because other, younger tellers committed the same errors yet were retained.
The court noted that to refute an employer’s legitimate, non-discriminatory reason for termination as pretext, employees often point to comparators; that is, similarly situated employees who were not terminated for the same infractions. When relying on similarly situated comparators to refute an employer’s otherwise legitimate, non-discriminatory reason for taking an adverse action, comparators must be similar in all relevant respects. Of particular relevance in DeBra’s case was the fact that the employees to whom she pointed to as being treated more favorably had a different supervisor who apparently was more lenient than hers. While it was true that several other tellers had committed the same errors or worse and retained their jobs, DeBra could not point to a younger employee under shared supervision who had committed as many or as significant of errors and remained on the job. Because DeBra ultimately could not point to similarly situated comparators, the court upheld the district court’s decision granting the bank’s motion for summary judgment.
To support a claim of discrimination under the ADA, Title VII and the ADEA, plaintiffs typically must rely on comparator data to demonstrate that they were treated less favorably than other similarly situated employees not in their protected class. To make this showing, plaintiffs often find it advantageous to urge the court to review the evidence from a macro-level, searching for comparators across a wider swath of the workforce to establish these differences. DeBra, however, supports the employers’ typical efforts to narrow the focus as much as possible. Here, the 6th Circuit endorsed a focus on only those employees under the supervision of the decision-maker in question. Such a narrow focus – emphasizing the decision-makers involved –often will help employers explain any differences in treatment of employees, but courts will often reject such a narrow focus when decision-makers and/or allegedly violated policies or performance standards are found at a higher level in the organization.