The Door Gets a Little Wider: D.C. Circuit Rules Employee-Plaintiff Can Get Comparator Discovery to Prevent Dismissal of CaseIf your employee sues you for discrimination, they don’t get to look at how the decision-makers treated everyone else, do they? Well, in Cruz vs. US Homeland Security, the D.C. Court of Appeals says yes they do. Although the district court granted summary judgment and did not let the plaintiff take discovery on how her bosses treated others, the court of appeals said not so fast. The ruling allows plaintiffs potentially to cast a wider net for information.

Coworker Complains and Plaintiff Reassigned

Elisa Cruz, an African American female of Hispanic descent, was Chief Information Security Officer for FEMA’s Office of the Chief Information Officer (OCIO). In 2012 a white male coworker complained that Cruz behaved inappropriately at multiple meetings. The head of OCIO (a white female), directed Cruz’s immediate supervisor, Maria Roat (a white female), to investigate. Ms. Roat got help from HR, who performed a “limited administrative inquiry.”

Ms. Roat and HR determined that Cruz engaged in unprofessional behavior (described as “abrasive, rude, yells, and [] condescending”) and she should receive a written warning and be reassigned (with fewer direct reports). They reassigned Cruz within DHS’s headquarters for 90 days, with no change in pay. Cruz filed an internal EEO complaint alleging discrimination based on race, color, national origin, and sex. Following that complaint, her reassignment was extended and then she was reassigned to a position outside the branch for which she did not believe she was qualified. She amended her administrative complaint to include a retaliation claim. The internal process and a later EEOC charge were concluded with no finding of discrimination.

Discovery Sought, Trial Court Denies

Cruz filed a lawsuit, and DHS filed an answer. Three weeks later, DHS moved for summary judgment, before any discovery had taken place. In response to DHS’s motion, Cruz argued that the motion was premature and she should be allowed to take discovery regarding the head of OCIO and Ms. Roat’s conduct towards and handling of other employees (both those in protected categories and not) for comparator evidence to support her claim of discrimination.

The district court granted the motion, finding that DHS’s stated reason for the reassignments was not pretextual and that the discovery Cruz sought was “extremely unlikely” to create any factual dispute regarding pretext.

Court of Appeals Reverses

The D.C. Circuit disagreed, finding that Cruz was entitled to at least look at the comparator evidence. The court found that how the decision-makers treated other employees who did not share Cruz’s protected characteristics in the same circumstances was relevant. Even though, according to the lower court, DHS had “strong evidence” to support its actions, including an independent investigation, the court held that the comparator evidence was material to the issue of pretext.


Discovery fights over comparator evidence are not uncommon. Although an employer can seek to limit disclosure on multiple bases (e.g., burden, confidentiality and privacy of others, or the requests being a “fishing expedition”), the D.C. Circuit’s opinion will give support to a claimant seeking such comparator evidence. How should you prepare?

  1. Look for comparators when you make the employment decision. Before disciplining or terminating an employee, be sure you have treated others in similar situations similarly. Look at how the decision-maker has treated similar situations and then look a little more broadly at how such situations have been handled throughout the company (within reason). Consistently applied policies are always welcome in defending a discrimination claim.
  2. Once you are in litigation, you and your counsel should thoughtfully evaluate discovery requests seeking comparator information. You may find that the comparators help your case. In any event, if the comparator information can go towards the issue of pretext (either for or against you), object and defend appropriately.