We have not previously considered what it means to be "similarly situated" in an employment discrimination context. The [Texas Commission on Human Rights Act] was expressly enacted to "provide for the execution of the policies of Title VII of the Civil Rights Act of 1964 and its subsequent amendments." Tex. Labor Code § 21.001(1). Because "t]he Legislature intended to correlate state law with federal law in employment discrimination cases," we turn to analogous federal case law for guidance. Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex. 2003); NME Hosp., Inc. v. Rennels, 994 S.W.2d 142, 144 (Tex. 1999). Employees are similarly situated if their circumstances are comparable in all material respects, including similar standards, supervisors, and conduct.To prove discrimination based on disparate discipline, the disciplined and undisciplined employees' misconduct must be of "comparable seriousness." Although "precise equivalence in culpability between employees is not the ultimate question," McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 283 n.11 (1976), the Fifth Circuit has held that to prove discrimination based on disparate discipline, the plaintiff must usually show "that the misconduct for which [he] was discharged was nearly identical to that engaged in by a [female] employee whom [the company] retained." Smith v. Wal-Mart Stores, Inc., 891 F.2d 1177, 1180 (5th Cir. 1990) (quoting Davin v. Delta Air Lines, Inc., 678 F.2d 567, 570 (5th Cir. 1982)). [footnotes omitted]Ysleta Independent School District v. Monnarez (Texas 8/26/05).
The disappointed plaintiffs were two former mechanics for the school district. While enjoying a night of drinks at a bar, in anticipation of what the morning might feel like, one mechanic asked his buddy to clock in for him the next morning if he didn't make it on time. As anticipated, he was late and his buddy clocked him in. Unfortunately, it must have been a worse hangover than expected as he never made it in all day. His buddy clocked him out at the end of the day so it appeared that he worked a full day even though he never showed up. Several days later both men went to their supervisor and confessed what they had done. After it was reported up the chain of command, a review committee recommended termination.
The two sued claiming gender discrimination, alleging that female employees in the same department had also punched in for each other and not been terminated. But the difference -
In each instance in which a female employee received a written warning, the employees involved appeared for work. Moreover, testimony at trial indicated that female employees occasionally clocked-in for one another merely for the sake of convenience. Thus, the District concludes that the nature and degree of the time card violations for which female employees received written or verbal reprimands cannot be compared to the present violations. We agree. There is no evidence that the time card violations by females included a conspiracy to conceal another employee's absence from work. Thus, even though the female employees worked in the same department and were subject to the same time clock rules, there is no evidence that their respective misconduct was of "comparable seriousness."In this case it is a $500,000 difference -- the amount awarded to the two for back wages ($117,900), mental anguish ($350,000) and attorneys' fees ($30,000.)
Today's per curiam opinion contained the statement that "Justice Willett did not participate," a recognition that as of this week the Court is again at full strength and has a practitioner who specialized in labor and employment law before taking the bench. Wednesday, Don Willett, a former colleague when we were both at Haynes and Boone, became the 2nd lawyer with a labor and employment background to be appointed to the Court. Judge Xavier Rodriguez, now a United States District Judge in San Antonio was the first.
Unlike Judge Rodriguez who was a practicing labor and employment lawyer at the time of his appointment, Justice Willett had ventured into other areas, serving first as a policy advisor to then Governor Bush, followed by a tour of duty in the White House and Department of Justice before returning home to Texas where he was chief legal counsel to Texas Attorney General Greg Abbott. Even though a bit removed from his labor and employment law days, it will be good to again have a member of the Court with real world experience in an area that is an increasing part of the docket of the Texas state courts. Congratulations to Justice Willett.