Sergeant’s offered comparators we not “nearly identical” to support discrimination claim says 1st Court of Appeals


Harris County, Texas v. Kenneth Bankhead, 01-13-01005-CV (Tex. App. – Houston [1st Dist.], December 30, 2014)

This is an interlocutory appeal from the denial of a plea to the jurisdiction in a race discrimination employment case. The First District Court of Appeals reversed the denial and dismissed the case.

Bankhead was a sergeant with the Harris County Sheriff’s Office. Bankhead got into a verbal altercation with an inmate in the mental housing ward where he struck the inmate causing a cut requiring fourteen sutures. After an IA investigation, Bankhead was terminated for unjustified force and policy violations. The termination was upheld by the Civil Service Commission. Bankhead filed a race discrimination claim. The County filed a plea to the jurisdiction which the trial court denied and the County appealed.

The Houston Court of Appeals noted that an essential element of any discrimination claim is to show a comparator of a different protected group was treated more favorably. The court focused a lot of attention on the “nearly identical” requirement of the comparator. Bankhead listed three comparators and the court went through a detailed analysis of each to determine whether they were “nearly identical.”  The first was not nearly identical because it resulted in no injuries and the duties were not similar in any respect. The second was not a law enforcement officer or supervisor. The third was never found to have used unjustified force, although several complaints were filed against him.   The court seemed very focused on the comparator job duties being similar and that Bankhead’s position as a supervisor required him to set an good example for lower level employees. As a result, Bankhead failed to create a fact issue on an essential element of the claim and the plea should have been granted.

If you would like to read this opinion click here. Panel: Justice Higley, Justice Bland and Justice Sharp. Memorandum Opinion by Justice Sharp. The attorney listed for Bankhead is Peter Costea. The attorney listed for the County is Bruce S. Powers.

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