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Lack of ‘Similarly Situated’ Males Dooms Tennessee Professor’s Sex Discrimination Case

female doctorIn a Title VII discrimination case, there are several hurdles in front of a plaintiff. The law requires that the employee show that she suffered discrimination and that the legitimate, non-discriminatory reasons offered by the employer were really just pretexts for discrimination. In the case of one middle Tennessee professor, her employer was able to persuade the court that the professor’s case came up short in multiple areas required by the law.

The woman who launched this sex discrimination lawsuit was a professor at a medical school of a major university in Nashville. She was also a member of the university’s medical group. As part of her employment with the university, she signed a “member agreement” covering her employment by the medical group. That agreement included a provision that detailed certain activities that were prohibited as impermissible conflicts of interest.

In 2012, the professor opened her own private practice, offering breast pathology consult services. She did not ask permission from the university or even notify anyone at the university before opening her practice. The university contacted the professor three times to inform her that she was in violation of her agreement and that she needed to close the separate practice. She did not. In 2013, the university terminated her for cause.

The professor sued under Title VII. Her termination constituted sex discrimination because the university had several male professors who operated private side practices, and the university imposed no discipline on them, she argued. The university sought and obtained an order of summary judgment. The district court opinion stated that the professor failed to show that the university had engaged in sex discrimination, and, even if she had made a prima facie showing of discrimination, her arguments failed to present a viable case of pretext.

The professor appealed, but the university won again. The appeals court didn’t address the issue of pretext because, in its opinion, the employee’s complaint never made a viable prima facie case of sex discrimination. In order to clear this “prima facie” showing hurdle, an employee needs a few things. Besides membership in a protected class and proof of being qualified for the job, the employee also needs proof that the employer imposed an adverse employment action and that “similarly situated non-protected employees were treated more favorably.”

Too many distinctions, too few similarities

Clearly, the professor’s termination was an adverse action. The crux of the professor’s prima facie case came down to this issue of “similarly situated non-protected employees.” In this case, the professor identified several male professors at the med school who she claimed were similarly situated but whom the employer did not discipline. The problem for the professor, however, was that the doctors were not sufficiently similar to satisfy the courts.

The strongest comparator among the male colleagues the professor named was a neurologist who advertised via the “Best Doctors” website. Unlike the plaintiff, though, the neurologist disclosed his work with Best Doctors on his “Conflict of Interest” form and originally agreed to cease his affiliation with Best Doctors when the university demanded it. When he resumed working with Best Doctors, the university disciplined him. The neurologist agreed to repay to the university the money he made through Best Doctors, a demand that the university also made of the plaintiff before firing her (but that she declined). The neurologist also cooperated with the university’s investigation into his conflict, while the plaintiff did not.

These differences were more than enough to establish that the plaintiff and the neurologist were not sufficiently similarly situated to allow a court to find that the pathologist had made a prima facie showing of discrimination.

The key in this case, as with many employment cases, is collecting, assessing, and presenting the evidence you need in your case. The employer won in this case in part because it presented a multitude of key pieces of proof to demonstrate that the pathologist’s case lacked a required component:  namely, any similarly situated non-protected employees. In your case, you need experienced counsel on your side to help you develop and present your case in a strong manner. The experienced Tennessee sex discrimination attorneys at Mays & Kerr have helped many employers and employees over the years and are here to assist you in your case.

To speak with one of our lawyers about your case, call 1-877-986-5529.

More blog posts:

Sixth Circuit Ruling Raises Warning to Tennessee Employers When it Comes to Handing out Disparate Discipline, Atlanta Employment Attorneys Blog, Feb. 3, 2016

Federal Court in Tennessee Allows Racial Discrimination Case to Move Forward, Atlanta Employment Attorneys Blog, June 4, 2014