Not long ago posted a piece entitled, “Who Are the Similarly Situated.”  We noted that at least one circuit court did not require that the employees in the compared cases have the same supervisor, seriousness of offense, and standards.

Now a second circuit court has stepped up to make the same point, which should boost the union’s ability to defend members. In fact, the court made clear that  there need not be an “exact correlation” or “precise equivalence” between two cases. (See McDole v. Saginaw, 2012)

It drew on a previous ruling (McMillian v. Castro) where it had noted that, “The fact that the two individuals had different supervisors did not prevent them from being deemed similarly situated, we reasoned, because ‘all of the people involved in the decision-making process, including Plaintiff’s immediate supervisor and the department manager, were well-aware of the discipline meted out to past violators, including [the non-protected employee], who had violated the policy on at least two occasions.’”  

These rulings enable the union to search more broadly for a case to compare to that of the currently represented employee.

About AdminUN

FEDSMILL staff has over 40 years of federal sector labor relations experience on the union as well as management side of the table and even some time as a neutral.
This entry was posted in Discipline/Adverse Action, EEO/Discrimination, Grievance/Arbitration and tagged . Bookmark the permalink.

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