To prove claims of employment discrimination and retaliation, plaintiffs frequently rely on the similarly situated comparator — a coworker who engaged in the same misconduct alleged against the plaintiff, but without the same adverse consequences. Indeed, employers defending such claims often receive exceptionally broad pretrial discovery requests for information about coworkers who engaged in similar misconduct.

Such discovery requests from plaintiffs are overbroad and the concept of the similarly situated comparator is much narrower, the Court of Appeals for the Eleventh Circuit, in Atlanta, has confirmed. Feise v. North Broward Hosp. Dist., No. 15-15261 (11th Cir. Mar. 24, 2017).

Stacie Feise was a registered nurse for North Broward Hospital District (“NBHD”). She claimed that, while on a break, she had closed her eyes at the nurses’ station, but never fell asleep. Her supervisor contended she witnessed Feise sleeping at the nurses’ station and saw surveillance footage showing Feise sleeping intermittently for three minutes and continuously for another three minutes. NBHD policy prohibited sleeping on breaks and Feise was terminated.

Feise had returned from Family and Medical Leave Act leave (“FMLA”) Shortly before this incident. Thus, she sued NBHD for FMLA retaliation. Feise identified several comparators who engaged in similar misconduct, but were not terminated by NBHD. On appeal, only two of them remained relevant: (1) a medical technician who engaged in misconduct that, in Feise’s view, was more serious than sleeping on the job (repeatedly abandoning a child patient under close observation because he had threatened self-harm), but was referred only to an employee assistance program and required to undergo re-training; and (2) a Senior Medical Technologist caught sleeping in a chemistry lab, who was suspended only for two days. The district court was not persuaded by Feise’s comparators and she appealed.

The Eleventh Circuit affirmed the district court’s ruling that these were not appropriate comparators.

The Court quickly dispensed with Feise’s first purported comparator, explaining that courts are not permitted to evaluate different types of misconduct and determine which is worse. Indeed, “on the ground determinations of the severity of different types of workplace misconduct and how best to deal with them are exactly the sort of judgments about which [courts] defer to employers.” Thus, the appropriate question is whether the alleged misconduct was sufficiently similar. Here, it was not.

Regarding the second purported comparator, the Court explained that misconduct that “might be tolerated or treated with progressive discipline” in one position need not be “similarly accepted in other positions.” The district court had reasonably concluded that there were sufficient differences between the duties of a nurse and a technologist so as to render the technologist an unsuitable comparator. Nurses (unlike technologists) have a responsibility to respond with immediacy to patient needs and a nurse sleeping in a public area could undermine the public’s confidence in the hospital.