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Employees in different city divisions, with different skills, not proper comparators

By Nicole D. Prysby, J.D.

Given the differences in job duties and skills of an African-American employee and the two white individuals he named, the individuals were not proper comparators for the purpose of the employee’s Section 1983 race discrimination claim. Therefore, the mayors the employee had sued individually were entitled to qualified immunity, the Fifth Circuit held, because the employee had not demonstrated there was a constitutional violation. Although all three individuals were employed by the city’s public works department, the employee worked in the water division and the comparators in the street division. His alleged comparators were skilled in working with heavy machinery and had supervisory tasks the employee did not; they also had backgrounds in different areas than the employee and therefore were not “nearly identical” to him (Mitchell v. Mills, July 10, 2018, Jolly, E.).

Employee’s job duties. The employee worked in the city’s water department. He brought claims against the former and current mayors of the city under Section 1983, alleging that they paid him less than two comparable white coworkers on account of his race. His job included monitoring wells, checking lift stations, cleaning the sewer plant, reading water meters, and clearing debris from the roads. He also worked on repair of water and sewer leaks and occasionally drove a truck.

Comparators. He named two comparators, both in the street department. The first was employed as a street superintendent. He took turns with the employee on the job of cleaning the sewer plant, but also supervised street projects and operated the city’s motor grader. The second comparator had been essentially the predecessor of the first comparator and had a comparable skill set; in addition, he was a welder.

After the mayors claimed qualified immunity as to the equal protection claims brought against them in their individual capacities, the district court denied qualified immunity, holding that there was a question of fact as to whether the employee and comparators were similarly situated. The mayors appealed, arguing that the employee had not established a prima facie case for his equal-protection claim—and thus no constitutional violation—because his named comparators were not proper comparators as a matter of law.

No proper comparators. Considering whether the employee had shown a violation of a constitutional right, the appeals court concluded that he had not, because the difference in job responsibilities between the employee and his purported comparators negated his prima facie case of discrimination. The employee worked in the water department; the comparators worked in the street department. The first comparator had skills and prior experience operating a motor grader and lay-down machine; skills that the employee did not possess and were not required for working in the water department. Although the employee occasionally worked on street projects, he was limited to driving a dump truck and did not operate the heavy machinery. In addition, the first comparator had supervisory responsibilities including drafting budgets and planning street projects.

The second comparator also had skills and experience operating heavy machinery, such as a motor grader. He also had an extensive background in welding, construction, and operating heavy machinery, while the employee’s background was in plumbing, driving, and electrical work. Given the job duties and skills, neither was “nearly identical” to the employee and therefore neither was a proper comparator. Because the employee failed to make a prima facie case of discrimination, he failed to demonstrate a violation of a constitutional right and could not overcome the mayors’ claims of qualified immunity, concluded the appeals court, reversing the decision of the district court.