One of the essential factors for plaintiffs in discrimination cases can be showing that they were treated differently than a similarly situated co-worker — the inference being that they were treated differently because of their age, sex or race (or other legally protected status). In defending those allegations, companies often present facts as to how the workers’ situations are different. In Johnson v. Ohio Department of Public Safety, two troopers had similar type allegations, and even shared the same last name. However, the Sixth Circuit found that their circumstances were different enough to prevent them from being proper comparators.

Officers Not Being Gentlemen?

Ohio State Trooper Morris Johnson was accused of several incidents where he either asked out or hit on women that he was arresting or pulling over (one without probable cause). The Ohio Department of Safety (ODPS) considered firing him, but instead put him under a last chance agreement that allowed him to remain employed if he followed the rules for two years. After signing the agreement, there was another incident where Morris Johnson arrested a woman for DUI, gave her a ride home from the police station, turned off his body-cam and went into her house for 30 minutes. ODPS terminated him for violating the agreement.

Morris Johnson, who is African-American, filed a case of racial discrimination. In support of his claim, he pointed to a fellow trooper, David Johnson, who also had some problems following the rules. David Johnson was alleged to have sent an off-duty Facebook friend request to a woman he had detained and ticketed. David Johnson, who was white, received a one-day suspension for his behavior. Morris Johnson alleged that the two of them were similarly situated and the only reason he was treated differently was because of his race.

Not Like the Other

ODPS moved for summary judgment arguing that it disciplined the two officers differently because their situations were different, not because of their races. The court found that the two sets of allegations were not of “comparable seriousness.” While both officers acted inappropriately (and happened to share the same last name), they were not similar enough to be comparators. The district court granted summary judgment in favor of ODPS.

The Sixth Circuit agreed with the district court’s analysis. The opinion stated that while “stitches and open-heart surgery are both medical procedures,” they are not of “comparable seriousness.” The court examined the details of the allegations and found that while he was on duty Morris Johnson harassed intoxicated women that he was detaining, propositioned women to go out with him, pulled a woman over without probable cause so he could ask her out, and went into a woman’s house. The court noted that David Johnson, the alleged comparator, did none of those things. The court also noted that Plaintiff Johnson was under a last chance agreement, and the comparator Johnson was not. The court agreed that ODPS terminated Morris Johnson for abusing his power and not for any discriminatory reason.

But There’s a Dissent!

Judge Moore wrote a dissenting opinion in which she noted that comparators do not have to be identical, but instead only have to be similarly situated “in all relevant respects.” Judge Moore criticized the majority for holding that the lack of a last chance agreement was a significant difference between the two officers — both officers were subject to the overall department conduct policies, and both violated them. She also felt that there was not much difference in what each officer did: Both abused their status as law enforcement officers to develop relationships with women. Both were charged under the same offense — conduct unbecoming an officer. There was no evidence that ODPS necessarily viewed any of the prohibited behaviors as qualitatively different. Finally, Judge Moore noted that the prima facie burden was not that onerous and that summary judgment was not proper.

What Have We Learned?

This case raises the question of proportionality of discipline. Here, the Sixth Circuit felt that the differences between the two Johnsons’ behaviors were stark enough to justify termination in one case and suspension in another. However, you can see how this might become more difficult the closer the two situations resemble each other. The most important thing is to be consistent. Employers get in trouble when they don’t apply the same discipline in similar circumstances.

Another lesson is on last chance agreements — while they can be good, they also need to be applied consistently. Here, the majority found it significant that plaintiff Johnson had violated his last chance agreement, while the dissent noted that there was no explanation for why the comparator Johnson was not on one as well. If you want to use last chance agreements, establish a policy and enforce it across the board.

The final lesson is that detained or arrested individuals should not be in any police officer’s dating pool. Peace officers need to pursue other avenues for meeting potential soulmates.