Does a defendant have the ability to limit a plaintiff’s discovery into company records to locate similarly situated individuals in an employment discrimination case based on disparate treatment?
Walleon Bobo is an African-American man who worked as a supervisor at United Parcel Service. He was a military reservist who spent two weeks each year undergoing military training. When Bobo turned in his training orders, his supervisor commented that he would have to choose between the military and UPS.
Bobo trained new drivers and conducted annual daylong safety rides with each employee he supervised. The number of drivers reporting to Bobo is in dispute, with Bobo claiming he supervised 83 drivers to the other supervisors’ 40 to 46 drivers. UPS claims the number of people Bobo supervised was less and that the figure of 83 was a clerical error. Bobo also claims his supervisor told him not to approve a female driver candidate.
Bobo’s department fell behind in its safety evaluation rides and, in response, reduced the safety rides to half a day but still required the same paperwork. Bobo falsified some of his reports and did not complete the full training sessions with some employees. A complaint led him to admit to violating the UPS Integrity Policy. A group of senior managers reviewed the situation, and Bobo was given the option of resigning or being fired. He chose termination.
Bobo filed a discrimination suit alleging disparate treatment based on race and military status. The court granted summary judgment in favor of UPS, stating that Bobo had not demonstrated there were any similarly situated individuals who were treated differently. UPS named one individual who resigned after being threatened with termination by the same managers who terminated Bobo for violating the UPS Integrity Policy. The court denied Bobo the opportunity to conduct additional interviews and review UPS files in an attempt to locate other similarly situated employees.
The appeals court reversed the summary judgment, finding there were sufficient factors to raise the possibility of discrimination against Bobo. The court stated that the requirement that all similarly situated employees have the same supervisor was not absolute and defendants could not limit discovery only to the employees it claimed were similarly situated. The plaintiff and the court must be allowed to have input on determining who they think is similarly situated for purposes of a disparate treatment claim. The court also stated that this may be an instance of “cat’s paw discrimination” in that even though the managers who terminated Bobo never expressed any discriminatory actions or language toward him, they relied on the statements of Bobo’s supervisor in regard to Bobo’s violation of the UPS policy. The possibility that the supervisor hid his actual reasons for advocating for Bobo’s termination opens UPS to the possibility of liability for discrimination. The supervisor may have turned his negative opinion of Bobo’s military service into an attempt to have management discharge him for reasons that were not valid.
The selection of similarly situated employees for purposes of demonstrating disparate treatment should be determined on a case-by-case basis. In determining whether other employees’ positions are similarly situated, they need only be comparable in the factors relevant
to the discrimination claim.
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