In Belton v. GEO Group, Inc., No. 21-30144, 2021 WL 5832953 (5th Cir. Dec. 8, 2021), the U.S. Court of Appeals for the Fifth Circuit affirmed the dismissal of plaintiff’s claim of race discrimination claims under, inter alia, 42 U.S.C. 1981.
Here, the plaintiff (a black man) claims that they were disciplined more harshly than a person outside their protected class (a white woman), under what they alleged were similar circumstances (both having sexual harassment claims asserted against them). The court disagreed, and held that the plaintiff’s and the proffered comparator’s situations were different, and therefore the different treatment – plaintiff was fired, the comparator was not – did not amount to unlawful discrimination.
From the decision:
A plaintiff can establish a prima facie case of racial discrimination by showing that (1) he is a member of a protected class; (2) he is qualified for the position at issue; (3) he was subject to an adverse employment action; and (4) he was replaced by someone outside the protected class or treated less favorably than someone outside the protected class. The first three requirements are not at issue here. To satisfy the fourth element, Belton must show either that he was replaced by someone outside of his protected class or that he was treated less favorably than a similarly situated comparator outside the protected class. Here, Belton alleges he was treated less favorably by GEO than Roberts was in response to the sexual harassment allegations brought against each of them.
This Court requires that a plaintiff proffering a comparator must “demonstrate that the employment actions at issue were taken under nearly identical circumstances.” Although the district court took issue with Belton’s comparator, Roberts, because they had different supervisors, we do not “interpret nearly identical as synonymous with identical.” The “ultimate decisionmaker as to employees’ continued employment” was the same, and thus Roberts could have been a valid comparator.
Belton argues that he was discriminated against because although both he and Roberts received disciplinary sanctions for sexual harassment, he was fired, while she was not. However, to make a prima facie showing on racial discrimination,
Belton must show that “he was treated less favorably … under nearly identical circumstances.” Belton and Roberts did not face nearly identical circumstances. The criminal charges against Belton were still pending when he was fired. We must evaluate GEO’s decision at the time it was made, without the advantage of knowing that the charges were later dismissed. There is no evidence that Roberts was ever criminally charged regarding the sexual harassment complaints made against her.
The court concluded that “[g]iven the difference in circumstances surrounding Belton and Roberts, Roberts is not a valid comparator and Belton has not made a prima facie showing that he was racially discriminated against under § 1981.”