Difference in severity of past criminal history meant comparator was not similarly situated for discrimination analysis says Dallas Court of Appeals

Noris Rogers v. Pearland Independent School District, 14-41115 (Tex. APP—Dallas, June 28, 2016)

This is a race discrimination case where the Dallas Court of Appeals affirmed the granting of the employer’s summary judgment.

Rogers, an African-American male, applied for employment as a master electrician with the School District on two occasions.  The School District conducted a criminal history background check, which indicated that Rogers had prior felony convictions he had failed to disclose. When confronted about the failure to disclose, Rogers became angry and was asked to leave. The School District hired 46-year-old Rodney Taylor, who, like Rogers, was an African-American male. For the second position, Rogers disclosed the convictions. However, the School District sent him a letter noting his failure to disclose the convictions in the first application and the seriousness of the crimes rendered him ineligible. The School District subsequently hired another African-American male for the second position. Rodgers sued for race discrimination. The School District filed a motion for summary judgment noting Rodgers could not establish his prima facie case. The trial court granted the School District’s MSJ and Rodgers appealed.

First, the court held Rogers was deemed to have abandoned the disparate impact claim because he failed to brief it other than a single sentence in the statement of issues section of his brief. As to his disparate treatment claim, in order to establish a prima facie case of discrimination under Title VII, Rogers must demonstrate that (1) he belongs to a protected class; (2) he applied for the position and was qualified for the job; (3) he was not hired; and (4) the School District hired someone outside of his protected class.  Since the individuals hired by the School District were also African-American males, Rogers has failed to establish the fourth prong of the prima facie case. Further, while Rodgers asserts a white male applicant also failed to disclosure a felony conviction, the court held he was not a comparator. The white male was convicted of one drug offense and given probation, while Rodgers was convicted of at least three separate drug offenses and served much more severe sentences for more serious crimes. As a result, the trial court properly granted the School District’s MSJ.

Justice Graves concurred in part and dissented in part. Graves disagreed with the majority that the white male applicant was not a proper comparator. “Nearly identical,” is not the same as identical.

If you would like to read this opinion click here.  Judge Owen delivered the opinion. Panel includes Judge Owen, Judge Graves, and Judge Higginson.