When looking to establish pretext for alleged racial discrimination, courts often look to “similarly situated” employees at the same organization. The recent case of Austin v. Long provides a working example of this practice.

Job performance issues

The plaintiff was an African-American and former deputy prosecutor of an Arkansas judicial district. He filed a Section 1983 claim against the head state prosecutor, alleging that he (the plaintiff) was terminated because of his race.

The head state prosecutor had originally hired the plaintiff as a second deputy prosecutor. The plaintiff had replaced an African-American, as was the individual hired to replace him following his termination.

While working, the plaintiff had assisted the county’s senior deputy prosecutor. The plaintiff and the senior deputy prosecutor both received county funds each month for expenses. The head state prosecutor and the senior deputy prosecutor both believed that the plaintiff should have given his expense checks to the senior deputy prosecutor, who would then have paid the office expenses. The plaintiff failed to contribute his expense check for four months — even after the head state prosecutor had advised him to follow the senior deputy prosecutor’s instructions regarding the funds.

In addition, the head state prosecutor alleged that the plaintiff had job performance issues such as:

• Being out of touch during business hours,
• Deviating from office policy on bond reduction orders,
• Accumulating extraordinary, unapproved expenses, and
• Failing to appear in court.

The head state prosecutor allegedly met with the plaintiff regarding these problems, but the plaintiff offered no explanation and was therefore terminated. The plaintiff contended that he was never given an explanation for his termination.

At trial, the head state prosecutor moved for summary judgment. The trial court denied the motion, finding that there were disputes of material fact over whether the head state prosecutor’s stated reasons for firing the plaintiff were pretext for racial discrimination. The head state prosecutor appealed.

Not a clone

The U.S. Court of Appeals for the Eighth Circuit affirmed the trial court’s denial. The appeals court found that the plaintiff could demonstrate triable issues of fact concerning pretext by showing that he was treated differently from other employees who were similarly situated in all relevant respects.

The head state prosecutor argued that the other employees in question weren’t similarly situated. He pointed out that other prosecutors had been cited for performance issues, but their misconduct included being convicted for driving under the influence and sanctioned for ethics violations. The plaintiff’s misconduct was his failure to follow instructions from the senior deputy prosecutor and head state prosecutor to contribute checks to the senior deputy prosecutor’s operational expenses.

But the appeals court stated that a similarly situated co-worker is one who’s substantially similar to the plaintiff — not a clone. The court further held that a co-worker can be similarly situated in all relevant respects if that person’s misconduct is comparable to or more serious than the plaintiff’s. And the conduct of the other two prosecutors here was comparable to or more serious than the plaintiff’s failure to contribute funds for operational expenses.

Well-established right

To prevail in a Sec. 1983 claim, a plaintiff must prove that a person subjected the plaintiff to conduct that occurred under color of state law. The plaintiff also must prove that the conduct deprived him or her of rights, privileges or immunities guaranteed under the U.S. constitution.

The head state prosecutor asserted that the plaintiff had failed to set forth a violation of a clearly established constitutional right. But the appeals court stated that
the constitutional right to be free from discrimination is so well established that public officials must be charged with knowledge of it. Therefore, the plaintiff did allege a violation of his clearly established right to be free from employment discrimination.

Important points

You can still face legal liability if you replace a terminated employee with someone of the same race. When taking adverse employment actions, treat similarly situated employees consistently. Such employees are not only those whose offenses are exactly the same, but also those whose offenses are comparable or more serious in nature.  

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