Is it worse to smoke a cigarette in a tanker truck carrying highly flammable substances or drive it recklessly?


A federal appellate court recently breathed new life into the discrimination claims of a tanker driver alleging that his race motivated his employer to terminate his employment for it deemed reckless driving. His evidence? His employer had treated him differently than other tanker drivers who engaged in conduct that was similar enough to his.

So, let’s explore how other employees may be similarly situated to one another in the context of a discrimination claim.

Our plaintiff was an African American truck driver whose duties were to load, transport, and unload petroleum products using a large tanker. Because petroleum is a highly flammable and dangerous substance, the plaintiff had to comply with a slew of safety standards.

Except he didn’t, according to the defendant. The defendant fired the plaintiff following two incidents two days apart. First, the plaintiff allegedly was speeding, tailgating, and weaving through traffic, although there was no evidence to corroborate reports of the tailgating or weaving. Two days later, the plaintiff pulled out and turned quickly onto a highway, clipping a curb.

The plaintiff believed that his race motivated the defendant to terminate his employment with the company after less than one year. In support, he pointed to three tanker drivers subject to the same driving standards and with the same supervisor who (he felt) engaged in similar (enough) misconduct. That’s what it means to be similarly situated for purposes of a disparate-discipline discrimination claim.

Employee No. 1  had “multiple” alleged disciplinary notices and rear-ended another commercial vehicle in April 2019, damaging the truck so badly that it would be “out of commission for a while.” The company did not discipline him for the April incident.

Employee No. 2 was issued only a written reprimand after he was caught smoking in his truck carrying highly flammable materials. However, after the plaintiff filed sued,  he claimed he “randomly” saw this driver smoking again while driving a tanker and took screenshots and a video. The company investigated and found no conclusive evidence.

Employer No. 3  was not terminated despite numerous disciplinary notices and allegedly reckless behavior, including hitting a pole with her truck and damaging the defendant’s vehicle and property.

Did these drivers commit acts of comparable seriousness, although not necessarily identical? The Sixth Circuit concluded that “a reasonable jury could determine that [the plaintiff’s] incidents were not sufficiently numerous to distinguish the severity of his conduct from that of his comparators.” Plus, a jury may acknowledge the plaintiff’s contrition and visual evidence but disregard the distinguishing factors that the defendant may emphasize.

There’s enough to infer discrimination for the plaintiff to advance to trial. Now, all he has to do is prove it!

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