Shameka BROWN v. THE BLOOD CENTER

NO. 2017-CA-0750

Court of Appeal of Louisiana, Fourth Circuit.

MARCH 15, 2018

Jody F. Jackson, Mary B. Jackson, JACKSON + JACKSON, 201 St. Charles Avenue, Ste. 2500, New Orleans, LA 70170, COUNSEL FOR PLAINTIFF/APPELLANT, SHAMEKA BROWN

Leslie W. Ehret, Peter E. Sperling, Benjamin M. Castoriano, FRILOT, L.L.C., 1100 Poydras Street, 3700 Energy Centre, New Orleans, LA 70163, COUNSEL FOR DEFENDANT/APPELLEE, THE BLOOD CENTER

(Court composed of Judge Terri F. Love, Judge Joy Cossich Lobrano, Judge Dennis R. Bagneris, Sr., Pro Tempore)

Judge, Dennis R. Bagneris, Sr., Pro Tempore *989Plaintiff, Shameka A. Brown, appeals a judgment of the district court granting a motion for summary judgment in favor of defendant, The Blood Center (TBC), and dismissing all claims asserted by Ms. Brown against TBC. For reasons that follow, we affirm.

**PROCEDURAL HISTORY**

On July 22, 2015, Shameka Brown filed a lawsuit seeking damages for unlawful termination from her job as a supervisor of a mobile blood center operated by defendant, TBC. Ms. Brown makes claims for damages pursuant to the Louisiana Employment Discrimination Law embodied in La. R.S. 23:301 *et seq.* , and the Louisiana Pregnancy Discrimination Act set forth in La. R.S. 23:341 *et seq.* TBC answered the petition and asserted several affirmative defenses including the inability of plaintiff to establish a *prima facie* case of discrimination under either the Louisiana Employment Discrimination Act or the Louisiana Pregnancy Discrimination Act.

In the petition Ms. Brown asserts that on August 9, 2014, she became ill at work due to a difficult pregnancy and vomited and urinated on herself. The petition alleges that, because of this incident, she was terminated for abandonment of her job before her next shift despite the fact that a medical emergency required her to leave work temporarily to shower and change her clothes.

The parties conducted discovery, after which TBC filed a motion for summary judgment on September 23, 2016. The trial court denied that motion, but allowed TBC to re-urge the motion after the taking of a deposition of a TBC representative regarding the work rule allegedly violated by Ms. Brown.

On February 8, 2017, TBC filed a second motion for summary judgment. After a hearing on the motion, the trial court rendered judgment on May 4, 2017, granting the summary judgment and dismissing all of Ms. Brown's claims against TBC with prejudice. Ms. Brown filed a timely appeal from that judgment.

**FACTS**

Shameka Brown is a whole blood apheresis technician who held the title of mobile supervisor with TBC since 2010. On August 9, 2014, Ms. Brown was the supervisor on duty at the Slidell blood donation center. At that time she was about seven months pregnant with her first child. Due to the difficult pregnancy, Ms. Brown suddenly became ill with nausea and dizziness, causing her to vomit and urinate on herself. Ms. Brown left the blood center and went home to shower and change. She called her supervisor about two hours later to explain what happened and why she left her job without permission. After that conversation, Ms. Brown returned to work and completed the remainder of her shift.

A few days later Ms. Brown was terminated for abandoning her assigned duty as the scheduled supervisor without appropriate notification in violation of company policy. This policy is incorporated in the company manual introduced into the record. The manual specifically states that employment at TBC is at-will and that leaving a work station without permission while on duty is cause for immediate dismissal.

In her deposition, Ms. Brown admitted she left her post without notifying her supervisor. She also admitted she knew *990that behavior was grounds for immediate termination. Ms. Brown testified that she was embarrassed by the incident and could not continue working in her soiled clothing. Ms. Brown told a co-worker she was leaving, but did not notify her immediate supervisor about the incident until about two hours after she left her job. In the interim, the TBC facility was without supervision.

The report supporting the decision to terminate Ms. Brown's employment shows that Jerry Himel, the marketing manager, went to the Slidell donor center at about 2:30 p.m. He found two fire trucks outside and five donors waiting to give blood. The "bleeding area" was empty. When Mr. Himel questioned staff, he learned that the supervisor, Shemeka Brown, left about 1:00 p.m. due to an illness. Mr. Himel notified Antonio White, Ms. Brown's immediate supervisor, of the problem. It was about this time that Ms. Brown called Mr. White to tell him she left her post. After speaking with Mr. White, Ms. Brown returned to her job at about 3:00 p.m. Ms. Brown did not dispute any of these facts; although she did state that she told a co-worker she was leaving, but not her supervisor.

Antonio White, Ms. Brown's immediate supervisor, testified that he learned of her absence when he got a phone call from another employee who told him the blood center was busy and there was no supervisor on duty. Mr. White later received a call from Ms. Brown, who told him she left her post because she wasn't feeling well. She also stated she knew the blood center was busy, but she could not return because she was not wearing her uniform. At that time, Ms. Brown did not provide any details of her illness.

**DISCUSSION**

"After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law."1 A motion for summary judgment should be granted when there is no genuine issue of fact remaining to be decided for all or part of the relief sought by a litigant.2 In determining whether summary judgment is appropriate, appellate courts review the evidence *de novo* using the same standard applicable to the trial court.3 This standard of review requires this Court to consider evidence presented in the record, and to make an independent determination that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law.4 Generally, the burden of proof rests with the mover. However, "if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense."5

Claimant makes two claims in her action against TBC for wrongful termination from her employment. She asserts she was *991discriminated against because of a disability and/or a pregnancy-related condition.

Our Louisiana law follows the Americans with Disabilities Act, set forth in 42 USC § 12101, et seq.6 Accordingly, we are guided by federal jurisprudence interpreting discrimination cases and our review of Ms. Brown's claims will follow the analysis set forth under federal law.7 The requirements for a discrimination claim were articulated in *McDonnell Douglas Corp. v. Green*8 . Under the *McDonnell Douglas* test, a plaintiff is required to show that: (1) she was a member of a protected class, (2) she was qualified for the position she lost, (3) she suffered an adverse employment action, and (4) that others similarly situated were more favorably treated.9

La. R.S. 23:323A provides that, "(n)o otherwise qualified person with a disability shall, on the basis of a disability, be subjected to discrimination in employment." "To defeat a motion for summary judgment against an employment disability claim, the claimant must establish a *prima facie* case that: (1) he has a disability, as defined by the statute, (2) he is qualified for the job, and (3) an adverse employment decision was made solely because of the disability."10 Thus, our first inquiry is whether Ms. Brown meets the statutory definition of "disabled."11

An 'otherwise qualified disabled person' is defined "a disabled person who, with reasonable accommodation, can perform the essential functions of the employment position that such person holds or desires."12 A disabled person "means any person who has a physical or mental impairment which substantially limits one or more of the major life activities ..."13 " 'Major life activities' means functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working."14

Claimant's only assertion in support of her disability claim is that she was experiencing a difficult pregnancy and that she was unable to stay at work on the day she was terminated due to a pregnancy-related illness. While that fact is not disputed, this assertion does not establish the threshold requirement of a *prima facie* case under the disability act in that it does not show the claimant had a disability as defined in the relevant statute.

Ms. Brown seeks to incorporate the language of La. R.S. 23:341(B)(1) into the definition of disability contained in La. R.S. 23:323. The text of La. R.S. 23:341(B)(1) provides: "for purposes of this Part." Ms. Brown's attempt to expand the definition of disability fails because the definition is contained in *992La. R.S. 23:323 outside the "Part" for the purposes of La. R.S. 23:341(B)(1).

Additionally, even if she were considered disabled, Ms. Brown failed to meet her burden of establishing a *prima facie* case that "an adverse employment decision was made solely because of the disability." *Thomas v. Louisiana Casino Cruises, Inc.* , 03-1937, p. 3 (La. App. 1 Cir. 6/25/04), 886 So.2d 468, 470. Once TBC demonstrated the "absence of factual support for" Ms. Brown's disability discrimination claim pursuant to La. R.S. 23:323, the burden shifted to Ms. Brown "to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law." La. C.C.P. art 966(D)(1).

Ms. Brown testified that other workers who left work without notifying their supervisor were not terminated, but she was, as a pregnant employee. However, she produced no evidence for corroboration other than her self-serving testimony. While she named a specific employee that she believed was treated differently, she did not attach an affidavit or deposition testimony of said employee. Thus, her assertion was not supported by any corroborating evidence and does not create a genuine issue of material fact. *See**Schwarzenberger v. Louisiana State Univ. Sciences Ctr. New Orleans* , 17-0024, p. 14 (La. App. 4 Cir. 8/24/17), 226 So. 3d 1200, 1209. Therefore, we find an essential element of Ms. Brown's claim, that she is an individual protected under La. R.S. 23:323, lacks any factual support.

Ms. Brown has also made the claim that she was wrongfully terminated from her employment because of her pregnancy. This cause of action arises under La. R.S. 23:342, which provides in pertinent part that:

> It shall be an unlawful employment practice unless based upon a bona fide occupational qualification:

> (1) For any employer, because of the pregnancy, childbirth, or related medical condition of any female employee, to refuse to promote her, or to refuse to select her for a training program leading to promotion, provided she is able to complete the training program at least three months prior to the anticipated date of departure for her pregnancy leave, or to discharge her from employment or from a training program leading to promotion, or to discriminate against her in compensation or in terms, conditions, or privileges of employment.

In the trial court, TBC argued successfully that claimant could not meet the final requirement of the *McDonnell Douglas* test for discrimination, in that she could not show others similarly situated were more favorably treated. Additionally, TBC argued that Ms. Brown was terminated for a legitimate, non-discriminatory reason. Simply put, TBC asserts claimant was fired because she left her job without notifying her immediate superior, not because she was pregnant.

The trial court was persuaded by this argument and determined that summary judgment should be granted. On *de novo* review of the record, we arrive at the same conclusion. TBC has shown, and claimant does not dispute, that the reason for the termination of employment was a violation of a clearly defined company policy. She was not fired because she suffered a pregnancy-related illness that caused her to leave her job, or because she is disabled. Her employment was terminated because she did not notify her immediate supervisor that an illness required her to leave her duty assignment until two hours after she left. This failure to notify a supervisor before leaving her work station is listed in *993the employment manual as grounds for immediate dismissal. Ms. Brown was aware of this policy and that her violation of the policy subjected her to termination from her employment.

Additionally, we note that there is no evidence to show that others similarly situated were treated differently. In her deposition, Ms. Brown confirmed that she was unaware of any instance in which a supervisor left a blood center unattended without a supervisor on duty.

For the foregoing reasons, we find no merit in Appellant's assignments of error and we affirm the trial court's judgment granting summary judgment in favor of The Blood Center.

**AFFIRMED**

1

La. C.C.P. art. 966 A(3).

2

La. C.C.P. art. 966.

3

*Samaha v. Rau* , 2007-1726 (La. 2/26/08), 977 So.2d 880, 882.

4

*Marigny v. Allstate Ins. Co.* , 95-0952 (La. App. 4 Cir. 1/31/96), 667 So.2d 1229, 1231, *writ denied* , 96-0693 (La. 4/26/96), 672 So.2d 910.

5

La. C.C.P. art. 966 D(1).

6

*Thomas v. Louisiana Casino Cruises, Inc.* , 2003-1937, p. 3 (La. App. 1 Cir. 6/25/04), 886 So.2d 468, 470, *writ denied* , 2004-1904 (La. 10/29/04), 885 So.2d 598.

7

*Id.* Wrongful termination because of pregnancy is also prohibited by Title VII of the Civil Rights Act of 1964.

8

411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).

9

*McDonnell Douglas Corp. v. Green* , *supra.*

10

*Thomas v. Louisiana Casino Cruises, Inc.* , *supra* , 886 So.2d at 470, (citing *Hook v. Georgia-Gulf Corporation,* 99-2791, p. 8 (La. App. 1 Cir. 1/12/01), 788 So.2d 47, 53, *writ denied* , 01-1098 (La. 6/1/01), 793 So.2d 200.)

11

*Hook v. Georgia-Gulf Corporation,* 99-2791, p. 8 (La. App. 1 Cir. 1/12/01), 788 So.2d 47, 53, *writ denied* , 01-1098 (La. 6/1/01), 793 So.2d 200.

12

La. R.S. 23:322(8).

13

La. R.S. 23:322(3).

14

La. R.S. 23:322(7).

LOBRANO, J., CONCURS IN PART, DISSENTS IN PART, AND ASSIGNS REASONS

LOBRANO, J., CONCURS IN PART, DISSENTS IN PART, AND ASSIGNS REASONS.

I respectfully concur in part and dissent in part from the majority opinion. First, I concur in the part of the majority opinion affirming the district court's grant of summary judgment in favor of appellee, The Blood Center ("TBC"), and against appellant, Shameka Brown ("Ms. Brown"), as to Ms. Brown's disability discrimination claim. I dissent, however, from the part of the majority opinion affirming the district court's grant of summary judgment in favor of TBC as to Ms. Brown's pregnancy discrimination claim under La. R.S. 23:342. I would reverse that portion of the district court's judgment because genuine issues of material fact remain as to whether TBC provided more favorable treatment to other employees whose situations were similar in nature to Ms. Brown's emergency and whether disparate treatment occurred under the relevant TBC policies.

Under La. C.C.P. art. 966(A)(3), a motion for summary judgment shall only be granted when there is no genuine issue of material fact remaining and the mover is entitled to judgment as a matter of law. "Facts are material if they potentially insure or preclude recovery, affect a litigant's ultimate success, or determine the outcome of the legal dispute." *Wood v. Lindsey* , 2014-0907, p. 5 (La. App. 4 Cir. 1/28/15), 158 So.3d 939, 942. Although the burden of proof on summary judgment generally rests with the mover, "if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim...but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim...." La. C.C.P. art. 966(D)(1). Depositions may be filed in support of or in opposition to motions for summary judgment. La. C.C.P. art. 966 (A)(4) (stating, "[t]he only documents that may be filed in support of or in opposition to the motion are ...pleadings...."). Moreover, a litigant's testimony, although self-serving, may be sufficient to create a genuine issue of material fact such that the movant is not entitled to summary judgment as a matter of law. *Weddborn v. Doe* , 2015-1088, p. 4 (La. App. 4 Cir. 5/4/16), 194 So.3d 80, 84 (stating "[w]hile we acknowledge that those affidavits are self-serving, we find that they are sufficient to create an issue of material fact....").

The record before this Court evidences that genuine issues of material fact remain as to Ms. Brown's pregnancy discrimination claim. Specifically, genuine issues of material fact remain as to whether other *994employees were treated differently and disparate treatment occurred under TBC's policies. As quoted in the majority opinion, the policy TBC alleges that Ms. Brown violated states:

> ABSENTEEISM AND TARDINESS... Except where not practical under FMLA, employees must call their manager at least one hour before their scheduled shift if they are not going to report to work or if they must leave before the end of their scheduled shift. If the manager is unavailable at the time of their call, they must contact their department director or the individual who is on call in their department. Failure to report your absence before your shift begins or leaving work without authorization are grounds for immediate termination.

TBC also requires that employees maintain clean uniforms which are appropriate for the workplace or face immediate termination. See fn. 4, *infra* .

Ms. Brown brings her pregnancy discrimination claim under La. R.S. 23:342. Louisiana courts, for guidance in these claims, look to the framework set forth in federal cases for discrimination under Title VII of the Civil Rights Act of 1964. *See, e.g.,**Delaney v. City of Alexandria,* 2001-1076, p. 3, fn. 3 (La. 11/28/01), 800 So.2d 806, 807 (finding it appropriate to look to federal jurisprudence for guidance in discrimination claims where the applicable Louisiana statute is very similar); *Ott v. Families Helping Families of Greater New Orleans,* 2005-1324, p. 5 (La. App. 4 Cir. 8/16/06), 940 So.2d 1, 5 (finding that, due to the similarity of federal statutes to Louisiana's anti-discrimination laws, Louisiana courts routinely look to federal jurisprudence for guidance in discrimination cases); *Suire v. LCS Corr. Servs., Inc.,* 2005-1332, p. 3 (La. App. 3 Cir. 5/3/06), 930 So.2d 221, 224 (finding that a pregnancy discrimination claim under La. R.S. 23:342 should be reviewed "following the analysis set forth in federal cases for discrimination under Title VII").

As noted by the court in *Suire* , to make a successful pregnancy discrimination claim, Ms. Brown first must make a prima facie showing of discrimination by establishing the following factors: "(1) she was a member of a protected class, (2) she was qualified for the position she lost, (3) she suffered an adverse employment action, and (4) that others similarly situated were more favorably treated." 2005-1332 at p. 3, 930 So.2d at 224. This is the first step of the burden-shifting test established by United States Supreme Court case *McDonnell Douglas Corp. v. Green* . 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). After an employee makes such a showing, the burden shifts to the employer to state a legitimate, non-discriminatory reason for the adverse employment action. *Id.* If the employer successfully does so, the burden shifts back to the employee to show that the employer's stated reason for the adverse employment action was a pretext or discriminatory in its application. *Id.* at 807, 93 S.Ct. 1817. *McDonnell Douglas* addressed racial discrimination under Title VII. However, the test it employs has since been applied to other types of discrimination, both by the federal courts, *see, e.g.,**Fairchild v. All Am. Check Cashing, Inc.,*815 F.3d 959, 966 (5th Cir. 2016) (applying the *McDonnell Douglas* test in a pregnancy discrimination case brought under Title VII as modified by the federal Pregnancy Discrimination Act) and by Louisiana courts analyzing Louisiana anti-discrimination law. *See, e.g.,**Motton v. Lockheed Martin Corp.* , 2003-0962, p. 7 (La. App. 4 Cir. 3/2/05), 900 So.2d 901, 909 (applying the *McDonnell Douglas* test in a sex discrimination case).

*995The fourth factor of the prima facia showing, the "same-treatment" analysis, is echoed in La. R.S. 23:342(2)(a), which provides that with respect to any "female employee affected by pregnancy, childbirth, or related medical conditions", an employer must provide such pregnant employee with "the same privileges that the employer grants to other persons not so affected who are similar in their ability or inability to work." The "same treatment" analysis often requires lower courts to make credibility determinations as to whether an employer provided more favorable treatment to other employees "whose situation cannot reasonably be distinguished" from the employee's situation that resulted in termination of employment. *Young v. United Parcel Serv., Inc.* , --- U.S ----, 135 S.Ct. 1338, 1355, 191 L.Ed.2d 279 (2015) (finding a genuine dispute of material fact where the evidence introduced by the employee created a question as to whether the employer "provided more favorable treatment to at least some employees whose situation cannot reasonably be distinguished from [the employee's situation]"). Pregnancy discrimination laws do not provide pregnant women with favorable treatment; however, these laws were enacted to ensure that pregnant women receive equal and same treatment in the workplace.1 Thus, the "same treatment" analysis, which usually involves conflicting testimony making summary judgment improper, is crucial to a pregnancy discrimination claim.

Although the majority finds that "there is no evidence to show that others similarly situated were treated differently," Ms. Brown testified in her deposition that other employees were not terminated when they failed to notify supervisors prior to leaving work. Ms. Brown specifically identified at least one employee who was not terminated after he failed to notify a supervisor when he missed work.2 TBC's argues that the employee Ms. Brown identified is not similarly situated. However, this inquiry is a factual determination that is improper for summary judgment. *See, e.g., id.*3 A factual determination as to the nature of Ms. Brown's emergency medical situation at work is also necessary to determine whether TBC treated Ms. Brown the same as other similarly situated employees. Given the evidence presented by Ms. Brown and the nature of her claim, the "same-treatment" analysis requires the district court to make credibility determinations as to whether TBC provided more favorable treatment to other employees in reasonably similar situations.

The majority finds that Ms. Brown's testimony alone is not sufficient to create a genuine issue of material fact. In support, they cite *Schwarzenberger v. Louisiana State Univ. Health Scis. Ctr. New Orleans,* 2017-0024 (La. App. 4 Cir. 8/24/17), 226 So.3d 1200. In *Schwarzenberger,* the district *996court "properly discounted the self-serving and uncorroborated testimony of the appellant regarding loss of profits" when granting summary judgment as to the appellant's contract claims. *Id.* at 2017-0024, p. 14, 226 So.3d at 1210. As the *Schwarzenberger* court went on to state, in contract claims, loss of profits is only recoverable if the plaintiff shows that a loss of profits "is more probable than not," which this Court found, on de novo review, that the affidavits were not sufficient to establish. *Id.* at 2017-0024, p. 15, 226 So.3d at 1210.

This Court has not automatically disregarded all self-serving testimony on summary judgment. As this Court found in *Weddborn v. Doe* , an admittedly self-serving affidavit can create a genuine issue of material fact where it is not sufficiently countered by the movant. *Doe,* 2015-1088, p. 4, 194 So.3d at 84 (stating that the district court erred in granting summary judgment "as neither insurer properly supported its respective motion, given Ms. Weddborn's affidavits submitted in opposition to each motion. While we acknowledge that those affidavits are self-serving, we find that they are sufficient to create an issue of material fact....). Accordingly, the majority's reliance on *Schwarzenberger* for the general proposition that all self-serving testimony must be disregarded is misplaced. Additionally, in the case *sub judice* , the testimony at issue arose during a deposition where TBC was represented and had the opportunity to cross-examine. Accordingly, any issue regarding the self-serving nature of the testimony should have been addressed with contradictory evidence arising from such cross-examination.

Moreover, TBC's policies are contradictory such that a factual determination as to whether disparate treatment occurred must be made. The record indicates that TBC's policies require that employee uniforms be clean, decent, and appropriate.4 If employees violate this policy, they are subject to immediate termination. However, under the policies relevant to the case *sub judice* , TBC does not allow an employee to leave without delay should their uniform become soiled and thus in violation of its dress code. The policies when read together seem to result in a precarious situation in which Ms. Brown would have been immediately terminated had she been observed in her soiled clothing while making a call to a supervisor. The demonstrable absurdity of this result underscores the inappropriateness of summary judgment in this case.

Furthermore, the majority opinion evidences an improper merging of the steps *997of the *McDonnell Douglas* test. The majority writes as if it believes that Ms. Brown cannot prove that TBR's nondiscriminatory reason is a pretext for discrimination. Accordingly, the majority concludes that there is no genuine issue of material fact. Such analysis is improper on summary judgment. *See**Istre v. Meche,* 2005-2508, p. 5 (La. 6/16/06), 931 So.2d 361, 364 (stating that "[w]hether a given action is reasonable under the circumstances is a factual determination which should not be made in the context of a summary judgment proceeding.").

In conclusion, there are genuine issues of material fact as to whether Ms. Brown received equal treatment from TBC. Considering the contradictions evident in TBC's policies, the likelihood of disparate treatment given those contradictions, and the fact that the likelihood of disparate treatment significantly weakens TBC's stated justification for terminating Ms. Brown, this pregnancy discrimination claim raises genuine issues of material fact requiring a full trial on its merits. For these reasons, I respectfully dissent.

1

*See**Young,*135 S.Ct. at 1361-62 (J. Scalia dissenting) (stating that the purpose of the Pregnancy Discrimination Act is to ensure that pregnant women are "treated the same" as others of similar ability or inability).

2

*Contrast**King v. Phelps Dunbar, L.L.P.,* 2001-1735, pp. 17-18 (La. App. 4 Cir. 4/2/03), 844 So.2d 1012, 1023 (finding that where member of an ethnic minority presented only his conclusory allegations that he was treated unequally from other associates at his law firm, no genuine issue of material fact remained as to unequal treatment preventing summary judgment).

3

*Compare**Perez v. Tex. Dep't of Criminal Justice,*395 F.3d 206, 213 (5th Cir. 2004) (finding that "in disparate treatment cases involving separate incidents of misconduct ... for employees to be similarly situated those employees' circumstances, including their misconduct, must have been 'nearly identical' "). The question of two employees' misconduct is sufficiently similar is factual in nature.

4

TBC's Employee Handbook states, in relevant part:

> The Following Is A Non-Exhaustive List of Causes for Immediate Dismissal

> * * *

> 4. Immoral, indecent, or disorderly conduct, including fighting.

> * * *

> 18. Disregard of Dress Code

Antonio White ("Mr. White"), Ms. Brown's immediate supervisor at the time when she was terminated from TBC, elaborated on the "immoral, indecent, or disorderly" policy in his deposition. He stated that it would be "indecent" for an employee to remain on the worksite in a uniform that is not clean, which, according to the above-quoted policy, would subject that employee to immediate termination. Mr. White further stated that had an employee soiled themselves when he was present at the work site, he would have authorized them to leave. Moreover, TBC's dress code policy requires employees to dress "appropriately for the work [the employees] will be doing that day." The above-quoted portion of TBC's employee handbook indicates that disregard of the dress code subjects an employee to immediate termination. It is an issue for trial as to whether soiled clothing would meet TBC's dress code requirement to dress appropriate for a blood center.