The "Incident Doer" is the person who made the decision to discipline Complainant. Almost always the Doer is a Respondent supervisor/manager. Anyone who had input or influence in the discipline decision may be considered a Doer. For some incidents, there may be more than one Doer. There may be several. Sometimes the Doer is a panel of Respondent supervisors/managers. It is extremely important to accurately identify each of the Doers. The identity of the Doer or Doers determines the boundaries of the pool of possibly similarly situated persons. The higher up in Respondent's line of authority the Incident Doer is, the larger the pool -- the greater the number of possibly similarly situated persons.
The Incident Doer must be asked: "Why did you [incident]
Complainant?" If the Doer answers in generalities, she/he
must be pressed for specifics. For example, if Doer answers "because
she was tardy too much," the Doer must be asked: "What
do you mean 'tardy too much?'" "How tardy?" "How
many minutes?" "How often?" After the Doer gives
specific reasons for the incident, the Doer must be asked: "Is
there any other reason?" That question freezes the Doer so
that later, at a public hearing, she/he cannot offer a new reason
and claim that the investigator (Gator) never asked for all of
the reasons or did not allow a fair opportunity to state or explain
all of the reasons.
If the reason is "tardy ten minutes three different times
in the last two weeks," then the Gator must determine whether
Complainant was actually tardy ten minutes three different times
in the last two weeks. Interviews with co-workers and a review
of time cards should resolve the issue. If Complainant was actually
tardy ten minutes three different times in the last two weeks,
then the Gator should begin the search for similarly situated
If Complainant was not as tardy as claimed by the Incident
Doer, then the Gator must determine whether the Doer reasonably
believed that Complainant was as tardy as claimed. If the Doer
reasonably believed that Complainant was tardy ten minutes three
different times in the last two weeks then Complainant was as
tardy as claimed. Reasonably held perception is reality. A similarly
situated person would then be someone who was supervised by the
Doer who was known or reasonably believed by the Doer as being
tardy ten minutes three different times or more in a two week
period. If Complainant was not as tardy as claimed and the Doer
did not reasonably believe Complainant to be that tardy, then
a Gator conclusion that the Doer is covering up the real reason
with exaggeration may be warranted. The Doer should first be given
an opportunity, however, to explain the apparent exaggeration.
"Nonbasis persons" are persons who do not share Complainant's basis. For example, if Complainant is white, then nonbasis persons are nonwhite persons. If Complainant is 65 years old, then nonbasis persons are persons younger than 65. In the Gator's search for Comparative, the Gator tracks the treatment by the Incident Doer of similarly situated nonbasis persons.
A "similarly situated" person is a person who committed a "similar-in-kind" or "similar-in-effect" act while supervised by the Incident Doer.
A "similar-in-kind" act is an act just like Complainant's act. For example, co-worker Bob -- while supervised by the Incident Doer -- was also tardy five times or more in a two week period.
A "similar-in-effect" act is an act not necessarily
like Complainant's act but an act which had consequences similar
to Complainant's act. For example, co-worker Alice while supervised
by the Incident Doer instigated horseplay which cost Respondent
in lost production time equal to the time lost by Complainant's
acts of tardiness.
Investigative interviews must be conducted in a particular
order. Complainant is interviewed first, then Respondent management
persons, and then co- workers/witnesses. If, after all of the
interviews have been conducted and all the information collected
has been analyzed, there appears to be different treatment, that
a similarly situated nonbasis person may have escaped the incident,
then the Gator must go back to the Incident Doer and offer the
Doer an opportunity to explain the apparent different treatment.
Neutrality and fairness demands it. If an explanation is offered,
then the Gator must investigate the offered explanation and determine
whether the explanation is legitimate and worthy of belief.
"Negative Comparative" is evidence of similar treatment. Similarly situated nonbasis persons were similarly disciplined by the Incident Doer. Negative Comparative negates Comparative, destroying any inference of discrimination created by Comparative. Negative Comparative without any Comparative goes a long way by itself in supporting a No Probable Cause finding. Powerful Direct Evidence would be necessary to overcome Negative Comparative.