The High Hurdle Of Showing That Employees Are Similarly Situated For Discrimination Purposes

Calvin Chism, an African-American, was employed for 16 years as a firefighter in Forrest City, Arkansas. Chism had been arrested several times for various charges during his tenure with the Department, including arrests for third degree battery in 1992, for assault in 1994, for aggravated assault in 2003, for two counts of third-degree battery in 2005, for two counts of domestic battery in 2005, and for harassing communications in 2005. He was placed on six months’ probation by Fire Department Chief Dan Curtner after the 2005 incidents.

In February 2006, Chism told his supervisors that he had been questioned by the FBI in connection with receipt of allegedly stolen merchandise. Curtner informed Chism, “When they come arrest your ass, I’m going to fire your ass,” to which Chism responded “Yes, sir.” Chism was subsequently arrested on federal felony charges of receiving stolen merchandise and Curtner sent him a letter terminating his employment shortly thereafter.

Chism sued the City, claiming in part that he was the victim of race discrimination. The federal Eighth Circuit Court of Appeals affirmed the dismissal of Chism’s lawsuit.

The Court set out the familiar three-part process for proving discrimination in the absence of any direct evidence: “Chism first must establish a prima facie case of discrimination by showing: (1) That he is a member of a protected class; (2) that he was meeting his employer’s legitimate job expectations; (3) that he suffered an adverse employment action; and (4) that similarly situated employees outside the protected class were treated differently. Once Chism satisfies his prima facie case, the burden shifts to Curtner to come forward with a legitimate, nondiscriminatory reason for taking the allegedly discriminatory action. Finally, if Curtner is able to provide such a reason, the burden shifts back to Chism to demonstrate that Curtner’s proffered explanation is mere pretext for discrimination.”

The Court found that while Chism could show that he was a member of a protected class and suffered an adverse employment action, and could also show that he was meeting the expectations of his job, he could not establish that similarly situated employees outside the protected class were treated differently. Chism claimed a white firefighter was previously arrested for DWI, but was allowed to keep his job with the Department. Chism also testified a white police officer was involved in an accident while driving under the influence and he was not terminated.

The Court found this evidence inadequate: “The test to determine whether individuals are similarly situated is rigorous and requires that the other employees be similarly situated in all relevant respects before the plaintiff can introduce evidence comparing himself to the other employees. When different decision-makers are involved in terminating employees, the employees are rarely similarly situated in all relevant respects. In this case, the white firefighter described by Chism was arrested sometime between 1998 and 2000, before Curtner became chief. Similarly, the white police officer was a member of a different City department, with a different decision-maker in place. As a result, no one who was involved in the decision to fire Chism was involved in any of the decisions with regard to those employees. Moreover, Chism could not point to another employee who had any problems with the law in his department during his tenure or Curtner’s tenure.”

Chism v. Curtner, 2010 WL 3396842 (8th Cir. 2010).

This article appears in the November 2010 issue