The district court erred in granting summary judgment for an employer as to the plaintiff’s race discrimination claims.
Here, a white comparator with the same supervisor had several workplace infractions, including twice using a cellphone while driving, driving while distracted, and responding to a traffic situation late. The comparator also became angry and yelled at the supervisor before quitting his job. Yet he was permitted to return to his job, while the plaintiff, a black man who had fewer infractions and did not yell at his supervisor, was terminated and not permitted to return. A reasonable factfinder could conclude that the employees were appropriate comparators because they dealt with the same supervisor, were subject to the same standards, and engaged in similar conduct. Indeed, it appears that the comparator, who had more infractions and was less respectful to his superiors, may have engaged in more egregious conduct yet received more favorable treatment.
Even assuming that the plaintiff’s infractions caused damage while his comparator’s didn’t, this fact alone wouldn’t necessarily end the comparator analysis. Especially given the dangerous nature of the comparator’s offenses, a factfinder could reasonably determine that the two were proper comparators.
Moreover, the employer’s reason for the plaintiff’s termination has changed substantially over time. This change is sufficient evidence of pretext. The employer now asserts for the first time during this litigation an entirely different reason for the termination than was offered initially: the plaintiff’s poor attitude. The initial reason was “job abandonment,” even though the plaintiff’s behavior didn’t meet the employer’s policy definition for that cause. While an employer can certainly expand on its original reason for a termination, such evidence of substantial changes to the proffered reason for the termination in this case permits an inference of pretext.
Reversed and remanded.