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Most cases involving allegations of discipline or discharge based on discrimination are brought under the disparate treatment theory. In a case of disparate treatment under Title VII, an individual initially establishes a prima facie case of intentional discrimination. In the Eleventh Circuit, a plaintiff may establish a prima facie case of discrimination by showing: (1) they are qualified; (2) they suffered an adverse employment action such as termination or discipline; and (3) similarly situated employees outside of their protected class were treated more favorably. See E.E.O.C. v. Joe’s Stone Crabs, 296 F.3d 1265, 1273 (11th Cir. 2002).
The plaintiff typically identifies a comparator, or an individual outside of their protected class who was treated more favorably. The Eleventh Circuit “require[s] that the quantity and quality of the comparator's misconduct be nearly identical to prevent courts from second-guessing employers' reasonable decisions and confusing apples with oranges.” Maniccia v. Brown, 171 F.3d 1364, 1368-69 (11th Cir. 1999) (citing Dartmouth Review v. Dartmouth College, 889 F.2d 13, 19 (1st Cir. 1989)).
However, a plaintiff’s failure to produce a comparator does not necessarily doom the plaintiff’s case. The plaintiff may survive summary judgment if he presents circumstantial evidence that creates a triable issue concerning the employer’s discriminatory intent. A triable issue of fact exists if the record, viewed in a light most favorable to the plaintiff, presents a “convincing mosaic” of circumstantial evidence that would allow a jury to infer intentional discrimination by the decisionmaker.
The Eleventh Circuit recently reaffirmed the vague “convincing mosaic” standard in Lewis v. Union City, Georgia, 877 F.3d 1000 (11th Cir. 2017). A “convincing mosaic” may be shown by evidence that demonstrates, among other things, suspicious timing, ambiguous statements, and other bits and pieces from which an inference of discriminatory intent may be drawn.The “convincing mosaic” standard makes it easier for plaintiffs to show discrimination using evidence that, taken separately may seem insignificant, but viewed as a whole, may be enough for a plaintiff to present a prima facie case. Now that the Eleventh Circuit has reaffirmed the use of this standard, employers should consider conducting additional training for managers and decisionmakers to enforce that all decisions need to be made without any discriminatory intent or malice and even small incidents can be compiled later to paint a picture of discrimination.