In a recent decision, the U.S. Court of Appeals for the Fifth Circuit reaffirmed a familiar — but increasingly debated — principle in employment discrimination law: Plaintiffs proceeding under the McDonnell Douglas framework must identify a similarly situated comparator outside their protected class who was treated more favorably to survive summary judgment (Bravo v. Dallas Independent School District).
The opinion is noteworthy because the plaintiff argued that the U.S. Supreme Court’s 2025 decision in Ames v. Ohio Department of Youth Services eliminated or at least relaxed that requirement. The Fifth Circuit disagreed, doubling down on its precedent and underscoring a growing divide among the circuits.
The Case: No Comparator, No Prima Facie Case
Joe Martin Bravo, a Mexican-American teacher, was terminated after multiple student complaints alleging he made racially insensitive remarks in the classroom. Bravo filed suit under Title VII, alleging discrimination based on his ancestry.
The district court granted summary judgment, finding that Bravo failed to establish a prima facie case under McDonnell Douglas. Specifically, he could not show that he was treated less favorably than similarly situated employees outside his protected class.
The Fifth Circuit affirmed. It reiterated that in cases relying on circumstantial evidence, a plaintiff must show:
- Membership in a protected class;
- Qualification for the position;
- An adverse employment action; and
- Less favorable treatment than “similarly situated employees who were not members of the protected class, under nearly identical circumstances.”
Because Bravo “fail[ed] to offer any evidence of a similarly situated comparator,” his claim could not proceed.
The Plaintiff’s Argument: Ames Changed the Rules
Bravo’s primary argument on appeal was that the Supreme Court’s decision in Ames undermined Fifth Circuit precedent requiring comparator evidence. In Ames, the Supreme Court rejected a Sixth Circuit rule that imposed heightened evidentiary requirements on majority-group plaintiffs and cautioned against “inflexible formulations” of the McDonnell Douglas prima facie case framework. This language has prompted litigants across jurisdictions to argue for greater flexibility in establishing discrimination claims at the summary judgment stage.
The Fifth Circuit rejected Bravo’s reliance on Ames, invoking its “rule of orderliness.” Under that doctrine, a panel must follow prior circuit precedent unless a Supreme Court decision “unequivocally overrule[s]” it. The court concluded that Ames did not meet that standard:
- Ames addressed a different issue — heightened evidentiary burdens for majority-group plaintiffs.
- It did not clearly eliminate or prohibit comparator evidence requirements.
- The Fifth Circuit’s existing framework, in the court’s view, remains sufficiently “flexible” to coexist with Ames.
Accordingly, the court held that its precedent remains binding: A Title VII plaintiff must still identify a similarly situated comparator who the employer treated more favorably to establish a prima facie case under McDonnell Douglas.
A Circuit Split Continues to Develop
The Fifth Circuit’s decision places it firmly on one side of an emerging divide.
As the court acknowledged, other circuits have taken a more flexible approach. For example, the Eleventh Circuit has held that a plaintiff can survive summary judgment without comparator evidence, treating the prima facie case as a non-exclusive “evidentiary tool.” And even within the Fifth Circuit, concurring opinions have questioned the rigidity of the comparator requirement, suggesting it may be inconsistent with both Title VII and Rule 56.
Despite these criticisms, the majority opinion makes clear that the comparator requirement remains firmly entrenched in the Fifth Circuit.
Practical Takeaways for Employers
For employers operating in Texas, Louisiana, and Mississippi, this decision reinforces a favorable summary judgment landscape:
- Comparator Evidence Remains a Gatekeeper
Plaintiffs who cannot identify a similarly situated comparator face an uphill battle. This continues to provide employers with a powerful basis for early dismissal.
- “Nearly Identical” Still Matters
Although the court reiterated that comparator analysis cannot be “too rigid,” it reaffirmed the requirement that comparators be similarly situated under “nearly identical circumstances.” Employers should continue to document distinctions in employee conduct, discipline history, and decision-making factors.
- Maintain Consistent Documentation and Discipline Practices
Because comparator analysis remains central, employers should ensure that disciplinary actions are well-documented and consistently applied across employees. This remains one of the most effective ways to defeat claims of discrimination.