A terminated employee had worked for six months as a probationary supervisor for the Department of Juvenile Services (DJS). About five months into her employment, she reported that she failed to properly document an incident. Shortly thereafter, the assistant director conducted a surprise overnight inspection and found multiple officers asleep, raising concerns about supervisory oversight. The director then extended the employee’s probationary period, and the assistant director issued her the lowest possible performance evaluation, citing deficiencies in safety, communication, supervision, and management, as well as allegations that she regularly dozed during shifts. The employee admitted she occasionally “dozed” while remaining “alert” and acknowledged her failures in documentation and that she required coaching. Following a pre-disciplinary hearing, the employee emailed DJS leadership complaining that the director was disrespectful, especially toward women. Her probationary employment was terminated two days after the email was sent. The employee then brought claims against the DJS alleging sex and race discrimination and retaliation under Title VII and related state law. She also asserted a race discrimination claim under 42 U.S.C. § 1981 against the DJS and against the director and assistant director in their official capacities, which the district court dismissed. As the sole remaining defendant, the DJS then moved for summary judgment, which the district court granted, dismissing the employee’s claims with prejudice. The employee appealed.
In Wilkerson v. Parish, No. 21-30716, 2025 WL 1420530, 2025 U.S. App. LEXIS 11962 (5th Cir. May 16, 2025) (opinion not yet released for publication), the Fifth Circuit affirmed the district court’s dismissal because the terminated employee failed to establish a prima facie case of discrimination, failed to offer proper comparators, and failed to establish pretext. Applying the McDonnell Douglas framework, to establish a prima facie case of discrimination the terminated employee needed to show: (1) she was a member of a protected class; (2) she was qualified for the position; (3) she suffered an adverse employment action; and (4) she was replaced by someone outside the protected group or treated less favorably than a similarly situated employee outside the group. The “similarly situated employee” is referred to as a “comparator.” If that showing is made, the burden shifts to the employer to provide a legitimate, nondiscriminatory reason for its decision. The burden then returns to the employee to prove that the employer’s stated reason is not genuine but rather a pretext for discrimination. The terminated employee identified four coworkers outside her protected class as proposed comparators. The court concluded that none were similarly situated because they differed in material respects, including having higher performance evaluations or holding permanent, rather than probationary, employment status. The court stressed that probationary employees differ from permanent employees. In response to the employee’s retaliation claim, the court explained that she had failed to offer pretext. Although the terminated employee established her protected class, the court explained that the DJS had offered legitimate nonretaliatory reasons for her termination, and she had failed to provide a reason to conclude the DJS’s reasons for her termination were not genuine. Additionally, the court noted that the employee’s arguments were largely speculative as to the director’s motives, and such speculation was insufficient to allow a reasonable factfinder to determine that the termination would not have occurred but for her email.
By Callighan Ard [email protected]
Edited By Kristin Meurer [email protected]