‘Mosaic’ of Evidence Was Enough to Send Case to Trial


By Stephen B. Rotter November 6, 2019
‘Mosaic’ of Evidence Was Enough to Send Case to Trial

Sometimes it's not one action but many considered together that can result in discrimination claims going forward to trial, according to the 11th U.S. Circuit Court of Appeals. As the 11th Circuit put it, a "convincing mosaic of circumstantial evidence" can be enough for a case to advance. The court provided a list of actions that might be considered to be part of such a mosaic.

The city of Union City, Ga., employed the plaintiff as a police officer for approximately 10 years until she was terminated after allegedly not being able to fulfill her job duties. During her tenure with the police department, the plaintiff had a heart attack but returned to full active duty. Approximately one year later, the Union City Police Department mandated that its officers carry Tasers and pepper spray and that they undergo certification training, including receiving a five-second Taser shock and exposure to pepper spray.

Concerned that her previous heart attack may increase her injury risk when exposed to a Taser shock or pepper spray, the plaintiff consulted with her doctor. The doctor recommended that she not undergo the police department's training as related to Tasers and pepper spray.

In response, Union City placed the plaintiff on administrative leave until she was released to full duty by her physician. Shortly thereafter, Union City fired the plaintiff for exhausting her paid leave and not turning in Family and Medical Leave Act (FMLA) paperwork, even though no deadline was given to return the paperwork, thereby causing her to allegedly be absent without leave.

The plaintiff, a black police detective, brought disability, race, gender and other claims to a Georgia trial court, alleging that Union City and its police chief discriminated against her when she was fired for not showing up for work after she was placed on administrative leave. As part of her case, the plaintiff argued that two white male employees had failed their physical fitness tests but were given a second opportunity to demonstrate they could be on full duty and granted extended leave, and thus were treated more favorably.

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The trial court ruled for Union City, finding that the other employees were not similarly situated, and dismissed the case.

On appeal, an 11th Circuit panel held that the plaintiff could move forward with her disability, gender and race claims because Union City regarded her as having a disability by putting her on leave and firing her for not completing FMLA paperwork. Moreover, she presented "a convincing mosaic" of indirect evidence that could "allow a jury to infer intentional discrimination" regardless of her evidence involving co-workers.

In separate proceedings, the full 11th Circuit court determined that so-called comparators like the co-workers in the case needed to be "similarly situated in all material respects," which raised the bar for employees to establish discrimination claims; in this regard, it held, the plaintiff had failed. The full court also directed the 11th Circuit panel to reconsider whether the plaintiff properly established any of her claims in light of its new findings.

The 11th Circuit panel again decided that a "plaintiff's failure to produce a comparator does not necessarily doom its case" if a plaintiff presents enough indirect evidence to show that an employer may have acted with discriminatory intent. The court found that by showing a "convincing mosaic of circumstantial evidence," a plaintiff could reach a judge or jury—similar to presenting direct evidence of discrimination or proper comparators.

The court described evidence to support a "convincing mosaic" to include the following examples:

  • An employer's suspicious timing between incidents and an employment action.
  • Ambiguous statements about the plaintiff.
  • Arbitrary employer actions, arguably such as Union City placing the plaintiff on indefinite administrative leave and then firing her for being absent without leave.
  • Better treatment of similarly situated employees.
  • Showing an employer's stated reason for its actions are false or not what actually motivated its conduct.
  • An employer's failure to follow its own policies when taking action against an employee.

Lewis v. City of Union City, Ga., 11th Cir., No. 15-11362 (Aug. 15, 2019).

Professional Pointer: Employers should review the 11th Circuit's list of examples an employee may use to establish a convincing mosaic of circumstantial evidence and should implement procedures to protect their workplaces.

Stephen B. Rotter is an attorney with The Workplace Counsel, the Worklaw® Network member firm in Denver.


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