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Meet Henry Diaz, a former police officer for the City of Somerville in Massachusetts. In the early morning hours of June 30, 2017, Diaz, who was off-duty at the time, was driving through East Boston. When a pedestrian stepped in front of his car, he stopped, got out of his car, and proceeded to repeatedly punched the pedestrian before driving away. The pedestrian reported the incident to the East police. Because the pedestrian chose not to appear for the criminal hearing in the matter, all charges were dropped. Of course, this did not end this matter.

After learning of this incident, the Somerville Police Department conducted its own internal investigation. During this Somerville Police Department investigation, Diaz attested to and then continued to maintain that he had merely defended himself out of fear for his own safety. Unfortunately for Diaz, a video of the incident and witness interviews demonstrated otherwise. (Of course, this begs the question of why where the criminal charges dropped).

A disciplinary hearing before the Massachusetts Civil Service Commission resulted in the finding that “Diaz had engaged in substantial misconduct which adversely affect[ed] the public interest and had violated departmental rules and regulations by engaging in conduct unbecoming an officer and by prevaricating during the investigation.” Prevaricate means “equivocate, fib, lie, and palter.” I had to look it up. Based on this conclusion, the employer fired Diaz.

Diaz sued the City under Title VII of the Civil Rights Act of 1964 for wrongful termination based on his race/color, Black, and his national origin, Hispanic. Essentially, Diaz argued that as a Black Hispanic officer, the City disciplined him more severely than officers of other races who had committed similar, or worse, infractions.

How do you prove discrimination under Title VII?

To prove discrimination under Title VII of the Civil Rights Act of 1964, the following elements must be established:

  1. Protected characteristic: The employee must belong to a protected class, such as race, color, religion, gender/sex, national origin, sexual orientation, and gender identity.
  2. Adverse employment action: The employee must have experienced an adverse employment action, such as termination, demotion, or failure to promote.
  3. Circumstantial evidence: The employee must provide evidence that creates an inference of discrimination, such as comments or statements made by the employer that suggest bias, a pattern of treating similarly situated individuals differently, or evidence that the employer’s stated reasons for the adverse action are false or pretextual.
  4. Causation: The employee must show a causal connection between the protected characteristic and the adverse employment action.

If these elements are established, the employer must then prove by a preponderance of the evidence that it would have taken the same action even if it had not taken the employee’s protected characteristic into account.

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What is disparate treatment under Title VII?

Disparate treatment is a type of discrimination prohibited under Title VII of the Civil Rights Act of 1964. It occurs when an employer treats an individual differently from others in the same or similar circumstances based on a protected characteristic such as race, color, LGBTQ+ statusm religion, sex, or national origin.

For example, if an employer denies an employment opportunity to a qualified individual because of their race or gender, this would be an example of disparate treatment discrimination. To prove disparate treatment, the employee must show that the employer treated them differently than similarly situated individuals who do not have the same protected characteristic.

It is important to note that an employer can also be liable for discriminatory practices even if they do not intend to discriminate, as long as the discriminatory impact is intentional or foreseeable. Disparate treatment is a form of intentional discrimination and is distinguishable from disparate impact discrimination, where the employer’s practices or policies have a disproportionate impact on members of a protected group.

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Can you prove disparate treatment claims based on the severity of discipline?

Yes, disparate treatment claims can be based on the severity of discipline. Disparate treatment in the form of discriminatory discipline occurs when an employer treats an employee differently in terms of the severity of discipline imposed, based on a protected characteristic such as race, color, religion, sex, or national origin.

For example, if an employer gives a lighter punishment to one employee for a similar infraction compared to a different employee who is a member of a protected group, this could be evidence of discriminatory discipline. To prove a disparate treatment claim based on the severity of discipline, the employee must show that the employer treated them differently from similarly situated individuals who engaged in like conduct but do not have the same protected characteristic.

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Who is considered similarly situated employee for a disparate treatment claim based on unequal discipline?

A “similarly situated employee” for purposes of a disparate treatment claim based on unequal discipline is an individual who is similar in all relevant respects to the employee, including job duties, performance record, and infraction history. The similarly situated employee must be in a similar or comparable position and have engaged in similar conduct that resulted in similar consequences.

The key is to compare the circumstances of the employee’s case with those of the similarly situated employee to determine if there is a difference in the severity of discipline imposed and if so, whether it was based on a discriminatory motive.

It is important to note that the similarly situated employee does not have to be identical to the employee in all respects, but they must be similar enough that any differences between them can be explained by legitimate, nondiscriminatory factors. The employee must also show that the similarly situated employee was treated more favorably than they were in terms of the severity of discipline imposed.

In Diaz v. City of Somerville, No. 22-1137, 2023 WL 1430115, at *6 (1st Cir. Feb. 1, 2023), the United States Court of Appeals for the First Circuit explained:

When evaluating such comparators, “[r]easonableness is the touchstone: while the plaintiff’s case and the comparison cases that he advances need not be perfect replicas, they must closely resemble one another in respect to relevant facts and circumstances.” Conward, 171 F.3d at 20.

As we have said, the test is whether a prudent person, looking objectively at the incidents, would think them roughly equivalent and the protagonists similarly situated. Much as in the lawyer’s art of distinguishing cases, the “relevant aspects” are those factual elements which determine whether reasoned analogy supports, or demands, a like result. Exact correlation is neither likely nor necessary, but the cases must be fair congeners.

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So, what happened to Diaz?

Diaz pointed to a set of white officers who engaged in physical alterations that were not fired. He then pointed to white officers who lied during investigations that were not fired. The United States Court of Appeals for the First Circuit did not buy this argument and held:

The egregiousness of Diaz’s conduct and the City’s stated reasons for his dismissal hinged on the combined force of both his assaultive conduct and his subsequent prevarication. In other words, it was the combustible mixture of unrestrained aggression and unmitigated mendacity that separated this case from Diaz’s proffered comparators. Removing an important ingredient of that mixture (say, untruthfulness about what happened or the presence of violence) renders any proposed comparison inappropriate. For a comparison to be apt, “apples should be compared with apples.” Dartmouth Rev., 889 F.2d at 19. Diaz, however, invites us to compare apples with apricots. Consequently, the district court did not err in determining that proposed comparators lacking both the elements of aggression and mendacity were not similarly situated and, thus, that Diaz’s proposed comparators were insufficient to ground a finding that the City’s reasons for terminating him were pretextual.

Id. at *7 (footnotes omitted). Mendacity also means untruthfulness and lying. I had to look that up too.

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Do I have a wrongful termination claim under Title VII for discrimination?

Best Employment Lawyer Answer: If you even think that you have been fired because of your race, national origin, gender, age, religion or disability; you need to call the right attorney to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?; Why Having Skilled Employment Attorneys Is Critical; Employment Law: Avoid Hiring The Wrong Attorney). Call our lawyers in Ohio, Michigan, North Carolina, and Kentucky to get help now. Spitz, The Employee’s Law Firm and its experienced attorneys are dedicated to protecting employees’ rights and solving employment disputes.


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