Court finds no discrimination in the decision to fire employee after receiving criminal charges for serving alcohol to minors.

This employment discrimination lawsuit, Perez v. Corpus Christi Indep. Sch. Dist., No. 2:17-CV-187, 2018 WL 1518556 (S.D. Tex. Mar. 28, 2018), was filed against Corpus Christi ISD by a woman who was employed at-will as a senior buyer for the district.  The record showed that she was arrested at her daughter’s 18th birthday party and charged with serving alcohol to minors, a misdemeanor.

The district’s Policy DH –Educator’s Code of Ethics – required district educators to comply with state law.  It also prohibited them from (1) treating minors in a way that might adversely affect or endanger them, and (2) furnishing alcohol or drugs to a person under the age of 21.

The day after the arrest, the woman followed district policy and reported the matter to the district.  After media reports surfaced, the woman was placed on administrative leave without pay pending an investigation.  In the criminal proceedings, she admitted guilt under a plea agreement that allowed her to avoid conviction as long as she met a number of conditions. The district then terminated her but told her that she was eligible for re-hire if she met all of the conditions in the plea agreement.

The lawsuit alleged gender discrimination and specifically that male employees who were charged with serious drug offenses were not suspended without pay and terminated as she was.  This is known as a “disparate treatment” case and it requires a showing that other employees outside of the plaintiff’s protected class (i.e., male) were treated more favorably than the plaintiff under “nearly identical circumstances.”

The plaintiff, in this case, offered a number of so-called “comparators” that included a male employee charged with assault, but the charges were dropped.  That same employee was later charged with possession of marijuana and resigned.  Three others were charged with driving while intoxicated.  None of the offenses had anything to do with minors.

To establish a disparate treatment case using other employees as comparators, a plaintiff in a discrimination lawsuit must show as follows:

[W]e require that an employee who proffers a fellow employee as a comparator demonstrate that the employment actions at issue were taken “under nearly identical circumstances.” The employment actions being compared will be deemed to have been taken under nearly identical circumstances when the employees being compared held the same job or responsibilities, shared the same supervisor or had their employment status determined by the same person, and have essentially comparable violation histories. And, critically, the plaintiff’s conduct that drew the adverse employment decision must have been “nearly identical” to that of the proffered comparator who allegedly drew dissimilar employment decisions.

According to the court, if the “difference between the plaintiff’s conduct and that of those alleged to be similarly situated accounts for the difference in treatment received from the employer,” the employees are not similarly situated for the purposes of an employment discrimination analysis.

The plaintiff in this case lost because her conduct in serving alcohol to minors was not nearly identical to the assault, marijuana possession, and DWI charges, mainly because her conduct had the potential to endanger minors.  Testimony showed that the plaintiff was the only employee known to have been charged with and admitted guilt to furnishing alcohol to minors.  Because the male “comparators” did not engage in similar misconduct, that evidence did not establish discrimination.  The woman failed to produce sufficient evidence of discriminatory treatment and, as a result, the trial court granted judgment in favor of the district.

Interesting note:  According to the suit, this employee worked as a buyer for the district and, yet, the Educator Code of Ethics applied to her as if she was a certified educator.  TASB’s Model Policy DH(LOCAL) includes language that applies the Educator Code of Ethics in DH(EXHIBIT) to ALL employees, not just those who are certified.  If you’re wondering if the same ethics rules apply to non-certified employees in your district, check out policy DH.


Tomorrow:   Are you superstitious?