In Gholston v. Minority Auto Handling Services, the Michigan Court of Appeals addressed in an unpublished decision the similarly situated requirement of a prima facie case in the context of a racial discrimination claim under state law. Two employees had been discharged for fighting. The trial court had granted the company's motion for summary disposition on the basis that the plaintiffs did not establish that similarly situated employees were treated differently. The employees had submitted evidence of four other altercations that had taken in the workplace where not protected class employees were not terminated. The company submitted a statement of twenty-three facts which it said differentiated the plaintiffs' misconduct from the other employees who were not terminated. The trial court stated that those incidents were not as serious as the one involving the plaintiffs.
A verbal altercation occurred during work, and afterwards, the employees had a confrontation in the parking lot where one employee used a screwdriver as a weapon. The fight ended, but one employee tried to hit the other with his car after the screwdriver was thrown at the vehicle. Another vehicle was damaged when one of the employees tried to drive out of the lot. Someone called the police who subsequently made a report of the incident.
The court of appeals addressed the altercation that appeared closet to the plaintiffs' situation and noted that the affidavit which had been submitted concerning that fight was not based on personal knowledge of the affiant and was not admissible as evidence. As a result, the affidavit could not create an issue of admissible fact. The court stated that employees are similarly situated if all relevant aspects of their employment situations are "nearly identical."
In reviewing the four altercations alleged to be comparable, the court of appeals stated that while the other employees had engaged in physical misconduct where objects were thrown and where individuals were struck, none of the incidents resulted in a third party calling the police or in a validated report of damage. As a result, the other incidents were not nearly identical.
"Nearly identical" as applied in this decision is very strict standard for plaintiffs. To the court, all fights are not the same requiring similar discipline, and the employees failed to demonstrate disparate treatment. The failure to establish this element of the prima facie case resulted in the dismissal of their case.