Narrow reading of what it means to be "similarly situated" for purposes of showing disparate treatment
In Vasquez v. County of Los Angeles (9th Cir 11/7/03), the court held that the plaintiff’s coworker, who was not similarly disciplined for the exact same incident and infraction (insubordination), was not similarly situated to the plaintiff where the plaintiff knew they had been ordered not to engage in the conduct but the other employee did not know this.
The court also said a supervisory employee was not similarly situated to the plaintiff because supervisors “are generally not deemed to be similarly situated to lower level employees.”
Being able to factually distinguish the “comparators” offered by the plaintiff in an employment discrimination case is often key to winning summary judgment. As this case illustrates, one of many ways to do this is degree of culpability. On this issue, creative thinking and legal research into similar cases, as well as factual research into the employer’s practices, can really pay off.
