‘Disparate Treatment’ Requires Comparably-Situated Employees

Tomorrow Bush, an African-American corrections officer for Houston County, Alabama, sued the County for race and gender discrimination when she was fired for violating the jail’s use-of-force policy by unjustifiably pepper-spraying an inmate. At the heart of Bush’s discrimination claim was the contention that the County had treated similarly-situated white male employees more leniently.

In dismissing Bush’s lawsuit, the federal Eleventh Circuit Court of Appeals ruled that an employee claiming disparate treatment of other employees has a clear burden of proof. The Court held that “Bush failed to create a genuine issue of material fact as to whether the County’s proffered reason for her termination – her violation of the jail’s use-of-force policy – was a mere pretext. For starters, the trial court correctly concluded that Bush failed to establish pretext through her proposed comparators because she lacked crucial information, such as the comparators’ disciplinary and employment histories, that were needed in order to prove that they were similarly situated.”

Bush v. Houston County Com’n, 2011 WL 507267 (11th Cir. 2011).

This article appears in the May 2011 issue.