“Everybody’s Doing It” Does Not Prove a Title VII Claim

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Race discrimination
Race discrimination is not proven by arguing that “everybody’s doing it.”

Judge Scott Coogler recently granted summary judgment in favor of an employer in a Title VII race discrimination case where the employee used a generalized claim of “everybody’s doing it” to try to prove her case.  See McGuire v. 3M Company, No. 6:14-cv-02015-LSC, 2016 WL 4073961 (N.D. Ala. Aug. 1, 2016).  Arzealar McGuire claimed that she was terminated by 3M Company because of her race.

As part of a typical Title VII case, an employee like Ms. McGuire is required to show that a “comparator” (typically another white employee) committed similar misconduct and was treated more favorably.  In this case, Ms. McGuire was terminated based upon her disciplinary history, which included three suspensions in 26 months.

To meet her burden of demonstrating a comparator, Ms. McGuire generically alleged that fourteen other other employees committed misconduct, but were not disciplined as severely.  But, she presented no documentation to back-up those claims.  Thus, Judge Coogler found that she could not meet her burden of proof:

The only evidence McGuire presents on these fourteen employees is her deposition testimony. However, McGuire either admits she does not know the disciplinary histories of thirteen of the employees or she does not provide any evidence of their disciplinary histories. Specifically, McGuire has not provided any evidence of an employee who was disciplined for sleeping on the job, making sexually inappropriate comments, falsifying overtime records, engaging in sustained attendance misbehavior, violating company badge policy, and leaving work in violation of the company’s relief policy. Because McGuire had an extensive disciplinary history and it contributed to her termination, a proper comparator should likewise have an extensive disciplinary history.

McGuire, 2016 WL 4073961 at *3.

Ms. McGuire’s tactic is one that we see frequently in employment discrimination cases.  Employees claim that “everybody’s doing it” and thus claim that multiple “oomparator” employees establish their discrimination claim.  Fortunately, many judges in Alabama have required more than such generalized claims in order to prove discrimination.  Instead, plaintiffs like Ms. McGuire are required to identify comparators who engage in similar misconduct and similar amounts of misconduct.

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