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Tuesday, February 27, 2018

Disparate Treatment: Proving Pretext By Comparison

by Gregory Williams, Esq. | Under the McDonnell Douglas Burden-Shifting Scheme (hereinafter, “McDonnell Douglas“), may a WA State disparate treatment plaintiff establish pretext by comparisonHere’s my point of view (NOTE: please read our DISCLAIMER before proceeding).


In the summary judgment context, to succeed on a claim of disparate treatment using McDonnell Douglas, the plaintiff must first establish a prima facie case of discrimination. See Noyes v. Kelly Servs., 488 F.3d 1163, 1168 (9th Cir. 2007). If the plaintiff states a prima facie case, the burden shifts to the defendant-employer to articulate a legitimate, non-discriminatory reason for the challenged action. Chuang v. Univ. of Cal. Davis, Bd. Of Trs., 225 F.3d 1115, 1123-24 (9th Cir. 2000) (quotation marks omitted). If the employer meets this burden, the plaintiff must then show a triable issue of material fact as to whether the defendant’s stated reason is mere pretext for unlawful discrimination. Hawn v. Exec. Jet Mgmt, Inc., 615 F.3d 1151, 1155 (9th Cir. 2010) (quotation marks omitted) (emphasis added). This last requirement is know as the prextext prong.


Generally, to prove pretext under McDonnell Douglas, a plaintiff must show that the defendant’s articulated reasons (1) had no basis in fact, (2) were not really motivating factors for its decision, (3) were not temporally connected to the adverse employment action, or (4) were not motivating factors in employment decisions for other employees in the same circumstances. Id. (internal citation omitted) (emphasis added). The fourth element allows a plaintiff to prove pretext by using comparison.


Accordingly, to prove pretext by comparison in Washington State, a plaintiff must show that (1) an employee outside the protected class (2) committed acts of comparable seriousness (3) but was not demoted or similarly disciplined. Johnson v. Department of Social & Health Services, 907 P.2d 1223, 80 Wn.App. 212, 227 (Wash.App. Div. 2 1996) (referencing Hiatt v. Rockwell Int’l Corp., 26 F.3d 761, 770 (7th Cir.1994)). And, arguably, acts of comparable seriousness need not be violations of identical company disciplinary rules. See, e.g., Hiatt v. Rockwell Intern. Corp., 26 F.3d 761, 770 (7th Cir. 1994) (Court previously held that "acts of comparable seriousness need not be violations of identical company disciplinary rules") (internal citation omitted). Plaintiffs are free to compare similar conduct, focusing more on the nature of the misconduct rather than on specific company rules. Id. (internal citation omitted).


However, plaintiffs may need to demonstrate more than occasional leniency toward other employees who had engaged in conduct of a similar nature. See id. at 771 (internal citation and quotation marks omitted). Ultimately, "incomplete or arbitrary comparisons reveal nothing concerning discrimination." Id. (internal citations omitted).


If you would like to learn more, then consider contacting an experienced Washington State Employment Discrimination Attorney as soon as possible to discuss your case. Please note: the information contained in this article is not offered as legal advice and will not form an attorney-client relationship with either this author or Williams Law Group, PS; please see our DISCLAIMER.

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