California appellate court sets standard for comparator evidence in discrimination cases

For comparator evidence to be probative in an employment discrimination case, all that is required is for the comparator, who was treated more favorably, to be similarly situated to the plaintiff in all relevant respects; the plaintiff does not need to establish her clearly superior credentials before being allowed to present comparator evidence at trial. (See, Gupta v. Trustees of the California State University - filed Sept. 26, 2019, First District, Div. Three, 2019 S.O.S. 2828.)

In Gupta, Gupta (a professor) showed that the Dean of the College of Health and Social Sciences ("Dean") held her to a different standard than another professor when it came to denying her tenure. The Dean said as to one of Gupta’s SETE scores: “[Gupta’s] score of 1.9 might be acceptable if explained, but in general this is below the norm for teaching evaluations in the College . . . .” A score of 1.9 was equal to the department mean that semester, but the Dean criticized Gupta’s score, apparently by comparing it to the College mean, which was better than 1.9 that semester. He did so despite the fact that it is improper to compare scores across departments. He did not compare another similarly situated professor's scores to the College mean and excused said professor's poor scores by citing the difficulty of the classes she had taught. The Dean did not do the same for Gupta’s scores and in fact testified at trial that he did not believe that the fact that Gupta’s classes were difficult or unpopular made it more difficult for her achieve good scores. Some of Gupta’s worst scores were in the same classes the Dean identified as “difficult” to teach when it came to evaluating the other professor. Gupta showed her scores were better than the other professor's scores, and also presented evidence to show that, when the other professor did not meet the minimum standards for scholarship during the year she would normally have been evaluated for tenure, the university gave the other similarly situated professor an extra year to publish two papers to supplement her research.


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