On November 13, 2019, the United States Court of Appeals for the Sixth Circuit issued a recommended for full-text publication opinion that analyzed and decided the concept of what it means to be “similarly situated” in the context of proving a prima facie case of discrimination.  In Johnson v. Ohio Department of Public Safety, the plaintiff, a person of color, claimed that he was discriminated against because of his race when he was terminated for conduct that he contended was the same in degree and nature as the conduct of a white state trooper who was only suspended for his conduct.

Morris Johnson was an Ohio state trooper who was terminated for sexually harassing multiple women while on duty.  Morris Johnson pulled over a woman for a DUI, arrested her and then asked her out on a date.  The next month, he pulled over the same woman (without probable cause) and again asked her out on a date.  When the Department learned of this conduct, it considered terminating him, but instead gave him a last chance agreement.

While on the last chance agreement, Morris Johnson again arrested a woman for a DUI.  After arresting, searching and handcuffing her, he offered to take her home. During the trip home, Morris Johnson turned off his in-car camera, lingered at her home for over thirty minutes, and texted her from his personal cell phone later that day.

In his lawsuit claiming race discrimination, Morris Johnson alleged that a fellow trooper, David Johnson, engaged in substantially similar conduct but was only suspended for his infractions.  David Johnson was alleged to have sent a woman whom he had previously detained a Facebook friend request (the Sixth Circuit noted that the report was unverified). Three years later, he again sent a Facebook friend request to a woman to whom he had issued a citation.

The Court held that the two men were not similarly situated because the first Facebook friend request was unverified and even if it had been verified, the collective acts were not comparably serious. The Court stated, “When it comes to comparable seriousness, it is the particular conduct of the officers, not broad generalizations, that counts.  Drawn at too high a level of generality, the ‘comparable seriousness’ test becomes meaningless.  True, stitches and open-heart surgery are both medical procedures.  But that does not mean they are of ‘comparable seriousness.’  Same here.”

The Sixth Circuit also focused on the fact that the officers had different supervisors and that they were subject to different standards (Morris Johnson was subject to a last chance agreement; David Johnson was not).

This decision is important for employers as they consider what type of discipline is appropriate in any given situation. As employment lawyers, we routinely advise employers to treat their employees the same. And, while that advice remains sound advice, the Johnson case makes clear that differences in culpability may result in differences in discipline, even where the same policy is violated.

About the Author:

Kathryn S. Wood is a Member in the firm’s Detroit office and Co-Chair of Dickinson Wright’s South Region Labor & Employment Practice Group. She focuses her practice in the areas of employment litigation, commercial litigation, and appellate practice. She has experience with discrimination, harassment, retaliation, whistleblower, complex commercial litigation, class and collective actions and defamation claims in Michigan, Indiana and Ohio. She can be reached at 313-223-3115 or kwood@dickinsonwright.com.