Judicial intentional-race-discrimination requirement

basis: no-evidence; party: Nelson and ABCBS; theory: Qualifications show promotion pretext; subject: party=Nelson and ABCBS; theory=Qualifications show promotion pretext

Nelson, an African-American woman, began working at Arkansas Blue Cross and Blue Shield ("ABCBS") in May 2004. She started as a Customer Service Representative, became a Claims Specialist, and now works as a Market Service Representative. As a Market Service Representative, Nelson "is responsible for coordinating and conducting all enrollment activity for new group customers." While working at ABCBS, Nelson was nominated for and participated in ABCBS's Leadership Development Initiative, a program designed to help employees develop management skills. Prior to working at ABCBS, Nelson worked as a salesperson for eleven years in retail clothing stores, including T.J. Max and Nine West. Nelson has a master's degree in management.

Evidence kind: fact; polarity: supports; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

Bryan Dorathy, ABCBS's regional executive for the Southeast region, was in charge of filling the position. Dorathy interviewed three employees for the position: Nelson, Melissa Watkins, and Jason Aud. Watkins and Aud are both Caucasian. Dorathy asked each applicant the same questions and scored their responses 1-5 in eleven separate categories. During the interviews, Dorathy told the candidates that he was looking for someone with retail experience because the new Manager of Operations would be responsible for developing a retail storefront concept at the Pine Bluff office where customers could come in, ask questions, and select insurance products. In their respective interviews, Watkins scored a 45 and Nelson scored a 42.5. They were the two highest scoring candidates.

Evidence kind: fact; polarity: cuts-against; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

Finally, the burden shifts back to the plaintiff to demonstrate that the reason offered by the employer was pretext for discrimination. Id. at 1046. A plaintiff can show pretext in at least two ways: (1) "[a] plaintiff may show that the employer's explanation is 'unworthy of credence ... because it has no basis in fact' "; or (2) "a plaintiff may show ... 'that a [prohibited] reason more likely motivated the employer.' " Id. at 1047 (alteration in original) (quoting Wallace v. DTG Operations, Inc., 442 F.3d 1112, 1120 (8th Cir. 2006) ). Ultimately, the plaintiff must "show[ ] that a prohibited reason, rather than the employer's stated reason, actually motivated the employer's action." Id.

Evidence kind: rule; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

Here, Nelson has not met this burden. First, she argues that she was more qualified than Watkins for the position. Yet "a comparative analysis of [their] qualifications" gives us no "reason to disbelieve [ABCBS's] proffered reason for its employment decision." Wingate v. Gage Cty. Sch. Dist., No. 34, 528 F.3d 1074, 1079 (8th Cir. 2008) (quoting Chambers v. Metro. Prop. & Cas. Ins. Co., 351 F.3d 848, 857 (8th Cir. 2003) ). Both women scored well on the interview and were well acquainted with ABCBS products. In addition, while Nelson had more years of retail experience, her experience was largely transactional, whereas Watkins's experience involved providing full customer service, which was more relevant to the retail storefront development at the Pine Bluff office. Thus, the comparison "reveals that [Nelson] was only similarly qualified," and therefore, "no inference of [race] discrimination ... arise[s]." Id. at 1080.

Evidence kind: held; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

basis: no-evidence; party: Nelson and ABCBS; theory: Allegedly reduced requirements show preselection; subject: party=Nelson and ABCBS; theory=Allegedly reduced requirements show preselection

Second, Nelson argues that Dorathy had pre-selected Watkins for the Manager of Operations position and reduced the minimum job requirements to ensure that Watkins qualified. Specifically, Nelson argues that, unlike other Manager of Operations positions within ABCBS, the Manager of Operations for the Southeast region and Pine Bluff office did not require a college degree or management experience.

Evidence kind: fact; polarity: supports; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

However, even assuming the minimum job requirements were reduced, Nelson presents no evidence, other than her conclusory allegations, that suggests Dorathy pre-selected Watkins or had any role in the reduction.

Evidence kind: fact; polarity: cuts-against; absent flag: 1; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

Ultimately, Nelson has not "produce[d] evidence sufficient to create a genuine issue of material fact regarding whether [ABCBS's] proffered nondiscriminatory justifications are mere pretext for intentional discrimination." Torgerson, 643 F.3d at 1046 (quoting Pope v. ESA Servs., Inc., 406 F.3d 1001, 1007 (8th Cir. 2005) ). Accordingly, we affirm the judgment of the district court.

Evidence kind: held; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

basis: triable; party: Haynes and WCI; theory: White employee with comparable or more serious infractions; subject: party=Haynes and WCI; theory=White employee with comparable or more serious infractions

James Fountain, a white man, hired Haynes to work for WCI in 2006 and supervised Haynes for the duration of his employment. During his employment, Haynes drove a large, multi-ton "front-end loader" truck in Duncan, South Carolina, to pick up trash from WCI's customers.

Evidence kind: fact; polarity: supports; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

Haynes has produced evidence that Joe Hicks, a white employee also supervised by Fountain, had several workplace infractions, including twice using a cellphone while driving, driving while distracted, and responding to a traffic situation late. Haynes also pointed to evidence, which appears undisputed, that Hicks became angry and yelled at Fountain before quitting his job. Yet, Hicks was permitted to return to his job, and Haynes, who had fewer infractions and did not yell at his supervisor, was not permitted to return to his job and instead had his employment terminated. Considering this evidence, a reasonable fact finder could conclude that Hicks and Haynes were appropriate comparators, because they dealt with the same supervisor, were subject to the same standards, and engaged in similar conduct. See Cook , 988 F.2d at 511. Indeed, it appears that Hicks, who had more infractions and was less respectful to his superiors, may have engaged in more egregious conduct, yet received more favorable treatment.

Evidence kind: fact; polarity: supports; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

Contrary to WCI's argument, the nature of Haynes's previous infractions does not render Hicks an inappropriate comparator. WCI argues in particular that Haynes and Hicks are not proper comparators, because Haynes's infractions caused damage and Hicks's did not. As an initial matter, disputes of fact in the record call into question WCI's assertion that Haynes's infractions caused damage to property. For example, Haynes points to evidence that the police officer did not issue any citation as a result of his undershooting a driveway because there was no damage and that Fountain himself said the incident was not that bad.

Evidence kind: fact; polarity: supports; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

Turning first to the issue of an appropriate comparator, this Court has emphasized that a comparison between similar employees "will never involve precisely the same set of work-related offenses occurring over the same period of time and under the same sets of circumstances." Cook v. CSX Transp. Corp. , 988 F.2d 507, 511 (4th Cir. 1993). Rather, to establish a valid comparator, the plaintiff must produce evidence that the plaintiff and comparator "dealt with the same supervisor, [were] subject to the same standards and ... engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of them for it." Haywood v. Locke , 387 F. App'x 355, 359 (4th Cir. 2010) (quoting Mitchell v. Toledo Hosp ., 964 F.2d 577, 583 (6th Cir. 1992) ) (alterations in original).

Evidence kind: rule; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

Taken as a whole, the evidence in the record could permit a reasonable factfinder to conclude that Haynes and Hicks are proper comparators. Because Haynes is similar to Hicks in all relevant respects but was treated differently from Hicks, a white employee, the district court erred in holding that Haynes had failed to establish a proper comparator.

Evidence kind: held; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

basis: triable; party: Haynes and WCI; theory: Pretext; subject: party=Haynes and WCI; theory=Pretext

Before receiving Haynes's call, Fountain spoke with the company mechanics. According to WCI, the mechanics said that Haynes seemed frustrated with the delay to repair his normal truck and said, "Forget this" or "F*** this." After speaking with the mechanics, Fountain met with the district manager and human resources manager and decided that Haynes's employment should be terminated. On October 8, 2015, Fountain and the district manager informed Haynes that his employment was being terminated for job abandonment.

Evidence kind: fact; polarity: cuts-against; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

Here, because Haynes has produced evidence that WCI's reason for his termination has changed substantially over time, he has presented sufficient evidence of pretext. Perhaps most importantly, WCI now asserts for the first time during this litigation an entirely different reason for the termination than was offered initially: Haynes's poor attitude. Additionally, when Haynes's employment was terminated, Fountain told him that he had met with the human resources department and that the reason for the termination was "job abandonment." J.A. 201. As Haynes points out, WCI's own policy defines job abandonment as "three days, no call and no show," which is inconsistent with Haynes's behavior on October 7. Haynes had in fact texted and called before returning to work after only one day.

Evidence kind: fact; polarity: supports; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

The district court likewise erred in determining that Haynes had not shown any evidence of pretext. In order to show pretext, a plaintiff may show that an employer's proffered nondiscriminatory reasons for the termination are inconsistent over time, false, or based on mistakes of fact. E.E.O.C. v. Sears Roebuck & Co. , 243 F.3d 846, 852-53 (4th Cir. 2001). Once the plaintiff offers such circumstantial evidence, the case must be decided by a trier of fact and cannot be resolved on summary judgment. Id. This Court has allowed an inference of pretext in cases where an employer has made substantial changes to its proffered reason for discharge over time. Id. ; Wesley v. Arlington Cnty. , 354 F. App'x 775, 782 (4th Cir. 2009).

Evidence kind: rule; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

While an employer is certainly permitted to expand on its original reason for a termination, such evidence of substantial changes to WCI's proffered reason for the termination permits an inference of pretext. See Sears Roebuck & Co. , 243 F.3d at 852-53. Thus, because Haynes has pointed to sufficient evidence to create a genuine issue of material fact as to whether WCI's proffered reason for the termination is pretext, summary judgment on this basis would be in error.

Evidence kind: held; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

basis: pleaded; party: Hu, 888 Consulting, and NY Drilling against DOB defendants; theory: Race-based selective code enforcement; subject: party=Hu, 888 Consulting, and NY Drilling against DOB defendants; theory=Race-based selective code enforcement

This action centers primarily on Burkart's "personal vendetta" against Asians in general and Hu in particular. Burkart's racial animus stems from his belief that Asians were responsible for the downfall of a construction company that he owned prior to his employment at DOB. In particular, Burkart blames Asians for undercutting his rates to the point where he could no longer compete.

Evidence kind: fact; polarity: supports; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

The first proffered comparator concerns work conducted at the 34th Avenue Jobsite. Specifically, the plaintiffs allege that Burkart issued them a violation "for having a pool of water" on the 34th Avenue Jobsite. Hu Appx. at A37 ¶ 190. Later, Burkart returned to the location when white workers were performing work on the jobsite. Even though these white workers were also working next to a pool of water, Burkart did not issue them a notice of violation or otherwise interrupt their work. Instead, Burkart reserved "such negative treatment for Asian workers." Id. at A39 ¶ 202.

Evidence kind: fact; polarity: supports; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

According to the plaintiffs' review of building code violations, Burkart issues 63 percent of his violations to Asian-run construction companies, workers, or sites, as compared to between 8 and 28 percent for other DOB inspectors.

Evidence kind: fact; polarity: supports; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

For the same reasons that we vacate the District Court's dismissal of the plaintiffs' LeClair claims, we vacate its dismissal of the plaintiffs' section 1981 claim for race-based interference with the plaintiffs' rights to make and enforce contracts. As the District Court correctly noted, "plaintiffs must meet the same pleading standard for their § 1981 claims as for their § 1983 claims under the Equal Protection Clause." Brown v. City of Oneonta, New York , 221 F.3d 329, 339 (2d Cir. 2000). Thus, to prevail on a section 1981 claim, a plaintiff must allege at least one instance in which he was treated differently from a similarly situated non-minority. Id. (citing Albert , 851 F.2d at 573 ). The section 1981 standard for determining whether a plaintiff and a comparator are similarly situated is identical to the similarity standard for a LeClair Equal Protection claim. Compare supra at 95-96, with Lizardo , 270 F.3d at 101 ( section 1981 race discrimination claim).

Evidence kind: rule; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

Recognizing these parallels, the District Court dismissed the plaintiffs' section 1981 claim for the same reason that it dismissed their Equal Protection claims, namely, failure to plausibly allege differential treatment of a similarly situated comparator. We now vacate, on that issue, having concluded that the Amended Complaint does, in fact, state an Equal Protection claim under LeClair .

Evidence kind: held; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

basis: no-evidence; party: Councilman Holcomb and other officials; theory: Independent or combined municipal discrimination; subject: party=Councilman Holcomb and other officials; theory=Independent or combined municipal discrimination

Ridgell sued the City and Hollingsworth under 42 U.S.C. § 1983, claiming that they had racially discriminated against him in violation of 42 U.S.C. § 1981. At trial, Ridgell presented evidence of alleged comparator employees. Steve Miller, the Caucasian head of the City's Finance Department, had been disciplined, but not terminated, for failing to comply with one of Hollingsworth's directives, for going to the gym while taking leave under the Family and Medical Leave Act, and for tardiness. Ridgell testified that Robert Tucker, a Caucasian male, regularly arrived late to work but had never been disciplined.

Evidence kind: fact; polarity: supports; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

Having reviewed the record, we conclude that there was insufficient evidence from which a reasonable jury could have concluded that Holcomb's vote against overriding the mayor's action was based on race. Holcomb voted to override Hollingsworth's first termination of Ridgell because he believed at the time that Ridgell "was in the right." He later met with the City's human resources director and Hollingsworth and learned about the problems with Ridgell's work performance and tardiness. Based on this information, he concluded that Ridgell's second termination was the right decision, and said he had no reason to believe that Hollingsworth's decision was motivated by race.

Evidence kind: fact; polarity: cuts-against; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

There was no evidence to contradict Holcomb's testimony, and Ridgell presented no other evidence supporting an inference that Holcomb voted against reinstatement because of Ridgell's race.

Evidence kind: fact; polarity: cuts-against; absent flag: 1; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

In sum, Ridgell does not challenge the jury's finding that Hollingsworth did not discriminate against Ridgell based on race. There is insufficient evidence that any other city official, or a combination of Hollingsworth and other municipal officials or employees, discriminated against Ridgell based on race.

Evidence kind: held; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)