Lack of Comparator Dooms Discrimination Claim

Randi Klein Hyatt
Randi Klein Hyatt
06/24/2022

The Seventh Circuit recently reaffirmed the need to identify a relevant comparator in discrimination claims.  In Abebe v. Health and Hospital Corporation of Marion County, Ms. Abebe worked as a dental assistant starting in 2014.  Her behavior during her employment was marked with multiple concerns about her attitude and interactions with others. 

In 2016, she received a poor review for “respect” due to her negative attitude and poor interactions with co-workers.  In 2017, Ms. Abebe received a negative performance review for “professionalism” because of her argument with a co-worker that resulted in discipline.  This review explained further that many of her co-workers considered her unapproachable.

In 2018, Ms. Abebe received another negative review because of her difficulty with teamwork and communication based on multiple incidents over the year.  She was denied a merit-based increase given her history of negative reviews.  Ms. Abebe filed a charge of discrimination with the EEOC alleging race and national origin discrimination.  

The district court granted summary judgment for the employer and on appeal the Seventh Circuit affirmed the lower court ruling.  The appellate court focused, in part, on Ms. Abebe’s failure to identify a proper comparator to support her allegations, namely a similarly disrespectful employee outside of her protected classes that was treated more favorably by her employer.  

Accurate and proper documentation is critical in employee performance management, particularly when needing to defend those decisions in the future.  Treating employees consistently and in line with existing policies and procedures goes a long way toward employee satisfaction and the ability to successfully defend against discriminatory treatment allegations.

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