Last week the Sixth Circuit upheld a grant of summary judgment in the employer’s favor on a former employee’s sex discrimination claim, finding plaintiff failed to meet her burden to establish a prima facie case of discrimination.
The Case
Dr. Jean Simpson was a professor at Vanderbilt University School of Medicine. While teaching at the University, Dr. Simpson started her own private consulting practice doing breast-pathology. Upon learning of Dr. Simpson’s consulting practice, the University instructed her the external employment violated the Conflict of Interest Policy, the Vanderbilt Medical Group (“VMG”) By-Laws and the VMG Participation Agreement and asked her to cease the consulting work. She refused. The University later terminated Dr. Simpson because of these violations.
Dr. Simpson filed a complaint in the Middle District of Tennessee alleging violations of Title VII of the Civil Rights Act and state law. Specifically, she claimed that she was discriminated and retaliated against on the basis of gender. The district court granted the University’s motion for summary judgment. Dr. Simpson appealed the dismissal of her discrimination claim.
The Sixth Circuit agreed with the district court’s determination that Dr. Simpson had failed to demonstrate a prima facie case of gender discrimination. Under the landmark McDonnell Douglas test, Dr. Simpson had to prove (1) she is a member of a protected group; (2) she was subjected to an adverse employment action; (3) she was qualified for the position; and (4) similarly situated males were treated more fairly. The fourth element was the only one in dispute before the court.
Dr. Simpson pointed to various male Vanderbilt employees who she believed were similarly situated. Dr. Simpson claimed that these male employees also operated similar separate businesses but were not terminated as a result. The court found that these male professors were not, in fact, similarly situated to Dr. Simpson. Though it was true that these male employees also operated other businesses, the circumstances were different. First, the court found that even the individual who was most similarly situated to Dr. Simpson both disclosed his business to Vanderbilt (something Dr. Simpson did not do until after the University already found out about it) and ceased the outside work upon the University’s request. Second, unlike Dr. Simpson, no other employee operated an independent business that solicited University clients.
The Takeaway
Oftentimes an analysis to determine if others are similarly situated focuses on whether the individuals are performing the same job functions and have the same responsibilities as the Plaintiff. This inquiry is the starting point to determine whether discrimination has occurred. It is important, however, to drill down and evaluate all of the factors that will determine whether comparators are similarly situated.
As seen here, the other professors that Plaintiff pointed to violated the same rules as Plaintiff but were not terminated. The determinative factor was how these comparators responded to the employer after learning they had violated University rules. While each case requires a fact-specific analysis, taking a holistic approach to the analysis may lead to an early employer-friendly ruling.
This latest ruling from the Sixth Circuit comes amidst a Circuit split on this issue. Currently, the First, Second, Third, Seventh, and Tenth Circuits all do not require a showing of similarly situated employees as part of Plaintiff’s prima facie case. On the other hand, the Fourth, Fifth, Ninth, and Eleventh Circuits are in accord with the Sixth Circuit’s ruling in this case that such a showing is required. The Eighth Circuit has provided mixed rulings.