Comparative

 

A. The Search for Comparative - An Overview

  1. What is the incident?
  2. Who is the Incident Doer (the person who made the decision to discipline Complainant)?
  3. Are you sure?
  4. No one else "advised" or "influenced" Doer?
  5. What are the Doer's reasons?
  6. Are there any other reasons?
  7. Did Complainant really do what the Doer says she/he did?
  8. Did anyone else do what Complainant did?
  9. Did anyone else do something as bad as what Complainant did?
  10. Were those people supervised by the Doer?
  11. Did the Doer know what those people did?
  12. Did any of those people escape the incident?
  13. Are any of those "escapees" nonbasis?
  14. How does the Doer explain the apparent different treatment?
  15. Is the Doer's explanation credible?

 

B. Incident Doer

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.

 

C. Incident Doer's Reasons

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.

D. Complainant's Actions

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 persons.

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.

E. Nonbasis Persons

"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.

 

F. Similarly Situated Person

A "similarly situated" person is a person who committed a "similar-in-kind" or "similar-in-effect" act while supervised by the Incident Doer.

 

G. Similar-In-Kind Act

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.

 

H. Similar-In-Effect Act

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.

I. Incident Doer's Explanation (for the Apparent Different Treatment)

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.

J. Negative Comparative

"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.

 

 

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