April 2015 - Issue 38

Dave Dravecky, Keynote Speaker at 20th Annual Risk Management Educational Forum

Authority Introducing a Newly Enhanced Website

EEOC Issues Proposed Wellness Incentives Rule

Cudahy and Irwindale Achieve Success with Performance Improvement Plan


California Standards Board Approves Heat Illness Changes

Competent Playground Inspections

Court Defines ‘Similarly Situated’ Employee for Bias Cases

News: Worthy

Dave Dravecky, Keynote Speaker at 20th Annual Risk Management Educational Forum

Are you a champion? A champion can be many things; a parent, sibling, coach, friend, mentor, victor, change agent, or advocate. A champion has purpose and passion, seizes the moment, and learns life’s lessons. A champion is comfortable with resistance and struggle.


This year’s keynote speaker truly exemplifies how to Manage Risk Like a Champion.  The Authority is pleased to announce our keynote speaker will be Dave Dravecky, former Major League pitcher for the San Diego Padres and San Francisco Giants and 1983 All Star.  Drawing from his personal experience with cancer, Dave will share what he has learned about the meaning of success versus significance and how to find encouragement through adversity.  Dave will describe how the power of your team can be an important asset in an age of austerity and fewer resources.  By examining relationships with your co-workers, teams, and benefactors, he will define how you can discover your true worth.

Come join us at San Francisco’s Mark Hopkins Hotel, September 23 - 25, to learn from the experts and meet the California JPIA team. Our speakers and sessions will help you to stay focused, learn from losses, measure improvement, know the score, and never give up in managing risk. So, mark your calendar!

For 2015, the Authority’s Executive Committee has again waived registration for members. Lodging scholarships will be available on a limited basis.  Non-member registration fee is $450.00.  Registration will open in late spring.

For questions, email us at forum@cjpia.org.

News: Worthy

Authority Introducing a Newly Enhanced Website

The Authority is launching an enhanced website in May. One of the key features of the new site includes the ability to access all website features, including trainings, with one username and password. Members will also be able to log in to the website using any media device, such as an iPad, iPhone, and Android and Windows mobile phones. The website will be supported by Chrome, Internet Explorer, and Firefox for navigation. The Resource Center, which members currently use to register for trainings and access their certificates of completion, is being integrated into the newly-enhanced website in order to facilitate easier access to training needs. Once logged in, members will be able to register for training utilizing the training calendar or the online training catalog.Look for more details to come soon.

News Worthy

EEOC Issues Proposed Wellness Incentives Rule

(Reprinted from the Society for Human Resources Management website, April 16, 2015)

Programs must be voluntary and nondiscriminatory

The U.S. Equal Employment Opportunity Commission (EEOC) has issued a proposed rule to help clear up confusion over using financial incentives in worksite wellness programs. 
The proposal, which the EEOC announced April 16, 2015, would amend regulations implementing the equal employment provisions of the Americans with Disabilities Act (ADA) to address the interaction between Title I of the ADA and financial incentives as part of wellness programs offered through employer group health plans.

The proposal will be published April 20, 2015, in the Federal Register for a 60-day public notice and comment period. 

The proposal provides what an EEOC press release described as “much needed guidance” to employers and employees about “how wellness programs offered as part of an employer’s group health plan can comply with the ADA consistent with provisions governing wellness programs in the Health Insurance Portability and Accountability Act (HIPAA), as amended by the Affordable Care Act (ACA).”

Many companies that provide health insurance offer wellness programs that encourage healthier lifestyles. To participate in these wellness programs, employees may be required to undergo health risk assessments that measure body weight and cholesterol, blood glucose, and blood pressure levels. Some programs offer employees financial and other incentives to encourage them to participate. 

The ADA limits the circumstances in which employers may ask employees about their health or require them to undergo medical examinations. It allows such inquiries and exams if they are voluntary and part of an employee health program. Workers, however, can’t be required to participate in such programs, and they can’t be denied health coverage or disciplined if they refuse to participate. 

The EEOC and the Republican-led Congress have been at loggerheads over the acceptability of “aggressive” financial incentives in wellness programs. On March 24, the House Education and the Workforce Committee held a hearing on a proposed bill that would limit EEOC enforcement activity toward these initiatives—H.R. 1189, the Preserving Employee Wellness Programs Act.

In recent months, the EEOC has filed three lawsuits alleging that employees lost out on financial incentives because they declined to participate in their employers’ wellness programs, and that this violated the ADA because the incentives rendered the programs involuntary. The proposed legislation is intended to protect wellness programs that offer incentives that fall within the maximums established by the ACA: up to 30 percent of the cost of annual health coverage; and for tobacco cessation programs, up to 50 percent of the cost of health coverage.

In addition, the ACA and its implementing regulations require that wellness programs provide a reasonable alternative or waiver for achieving the incentive if an individual can’t participate or achieve program goals due to a health condition or disability. 

The EEOC’s proposed rule makes clear that wellness programs are permitted under the ADA, but that they may not be used to discriminate based on disability.
“Employers … may not subject employees to interference with their ADA rights, threats, intimidation, or coercion for refusing to participate in a wellness program or for failing to achieve certain health outcomes,” the press release states. “Individuals with disabilities must be provided with reasonable accommodations that allow them to participate in wellness programs and to earn whatever incentive an employer offers.”The EEOC is also publishing a Fact Sheet for Small Businesses and a Question and Answer document for the public.

Re: Members

Cudahy and Irwindale Achieve Success with Performance Improvement Plan

In 2010, the California JPIA implemented what is known as the Healthy Members Protocol.  Behind the healthy member theory is the fundamental belief that the Authority should be acutely involved in the actions of each member, especially when those activities adversely affect the other members of the pool.
The Executive Committee supported the formalization of a process whereby staff is able to identify members whose actions are of concern to the Authority and its members, and to intervene progressively in their affairs when a member is unable or unwilling to mitigate areas of concern.  As such, the Authority has worked to position itself to get involved in a member’s operations effectively and at the appropriate point in time by way of a performance improvement plan.
Upon the Executive Committee’s approval of the performance improvement plan, the member must formally agree to the performance improvement plan by adopting a resolution by action of its governing body. The member is given a maximum of 24 months to complete the performance improvement plan. Regardless of their origin, concerns regarding member governance or activity will generally be measured against one or more of the six following criteria:
  • Increases in member claim frequency or severity;
  • Frequency and severity of claims involving libel/slander, civil rights, employment, or class action;
  • Allegations or reports of bribery, conflicts of interest, unfairness, dishonesty, or fraud;
  • Actions that negatively affect employee morale and performance, including allegations or reports of harassment or discrimination, or nepotism;
  • Adverse public policy, including actions or inactions that create legal liability; and
  • Inability to pay owed contributions or other cost allocation fees. 

In October 2012, the Executive Committee adopted a Performance Improvement Agreement for the City of Cudahy. The agreement included a Performance Improvement Plan (PIP) that outlined seven standards to be completed by March 28, 2014.  The purpose of the plan was to mitigate the risk exposure to the City and the pool caused by the City’s poor governance and poor public policy.

Over the succeeding 24 months, the City of Cudahy worked diligently to fulfill the obligation of completing all of the plan’s defined standards.  City staff is dedicated to improving the city’s risk management efforts and actively participated in the Authority’s training workshops, Risk Management Roundtables, specialized academies, and the annual Risk Management Educational Forum to broaden their risk management knowledge base.  

At its meeting of December 17, 2014, the Executive Committee determined that the City of Cudahy complied with all of the standards of Performance Improvement Plan and voted unanimously to dissolve the performance improvement plan and restore the City to a member in good standing.  

“I know such an achievement does not come easily. I compliment my staff for their hard work and commitment to risk management. I am grateful for the guidance of the California JPIA staff and our risk manager, Melaina Francis. This is a proud moment for the City of Cudahy. We look forward to continued success in the future,” commented Jose E. Pulido, City Manager.

The Executive Committee adopted a Performance Improvement Agreement for the City of Irwindale on September 25, 2013.  The agreement included a Performance Improvement Plan (PIP) which outlined eight standards to be completed by March 25, 2015.  The purpose of the plan was to mitigate the risk exposure to the City and the pool caused by numerous issues within the police department, poor governance, and poor public policy demonstrated by the city.

Over the past 18 months, the City actively worked to meet the completion of all of the plan’s defined standards.  Significant improvements have been made in the City’s governance, police department, and at the agency as a whole.  City staff and the City Council understand that the Authority is positioned to help maintain healthy members in accordance with its mission statement.

At its meeting of March 25, 2015, the Executive Committee determined that the City of Irwindale complied with all of the standards of Performance Improvement Plan and voted unanimously to dissolve the performance improvement plan and restore the City to a member in good standing.

City Manager, John Davidson expressed his sentiment, "The Mayor, City Council, and staff are extremely proud and pleased to have received the news that the City of Irwindale successfully completed the California JPIA requirements for being removed from the Performance Improvement Plan.  As a result of our collective efforts, our City is better positioned to meet the needs and safety of our organization and the community we serve.  Special thanks to the California JPIA team and our risk manager, Maria Galvan, for all of the help, support and professionalism she provided over the past 18 months."

Risk Solutions


by Alex Mellor, Risk Manager

With summer just around the corner, this is an opportune time for members to begin thinking about loss exposures associated with increased use of public facilities such as parks, playgrounds, and swimming pools.

First Aid/CPR
Larger crowds coupled with an increase in temperatures during summer months makes it more likely that staff will have to respond to an ill or injured member of the public or fellow employee. The odds of a favorable outcome can be improved by ensuring that key staff are formally trained in First Aid, CPR and AED use. The California JPIA offers American Heart Association (AHA) First Aid, CPR and AED training to members at no additional cost. The AHA requires re-training every two years, so if it’s been a while since your employees received this training, it would be a good idea to review your records and determine if certifications have expired.

Parks & Playgrounds
Ensuring the safety of our children while they enjoy the parks and playgrounds in our communities is of paramount importance to every California JPIA member. This is a great time of the year to review your Playground Inspection and Maintenance Plan, ensure that periodic inspections are being conducted and documented, and take any corrective actions necessary.

If playgrounds owned by your agency have not received an audit from a Certified Playground Safety Inspector (CPSI), this should be made a priority to ensure your playgrounds meet nationally recognized standards. You can locate a CPSI in your area through the National Recreation and Park Association website (NRPA): https://www.nrpa.org/CPSI_registry/default.aspx.
Effective January 1, 2015, California has updated regulations affecting the operation of public swimming pools. Among other items, updates include:
  • Violations that may result in pool closure by the enforcing agent (i.e. county) have been expanded and now include:
    • Failure to meet microbiological or chemical water-quality standards
    • Presence of inhalation hazards
    • Missing or broken suction outlet covers
    • Missing or broken pool enclosures, including fencing and gates
    • Hazards to pool users
  • Water flow rate must not fall below 75% of the rate required by the system (increased from 65%)

  • Response to incidents such as fecal, vomit, blood contamination and near drowning/drowning must now follow a defined procedure (laid out in the code) and document compliance with that procedure

  • All pools exceeding 75 feet in length or 50 feet in width must provide a rescue pole or life ring on at least two opposing sides of the pool at centralized locations (previously only one piece of rescue equipment was required)

  • Pools with lifeguards must now provide a 10-person industrial first aid kit or equivalent, an operating telephone, and a backboard and head immobilizer

A full copy of the updated regulations can be found here:http://www.cdph.ca.gov/healthinfo/environhealth/water/pages/californiapublicswimmingpoolrequirements.aspx.

Special Events Program
Summertime brings with it an increase in the number of special events in which public agencies are involved. Event organizers or members of the public wishing to use member-owned facilities may have difficulty obtaining minimum liability insurance limits recommended by the California JPIA (typically $1 million per occurrence). This is where our Special Events Program can help. The program provides liability insurance when member-owned premises are used for special events or short-term activities. Examples include weddings, art festivals, parades, yoga classes, and member-sponsored events such as fairs, carnivals, and swap meets. There is no deductible for this coverage, and members are automatically added as additional insured.

For more information, visit the Special Events page of the California JPIA’s website:http://www.cjpia.org/protection/coverage-programs/special-event-program.

Risk Solutions

California Standards Board Approves Heat Illness Changes 

by Melaina Francis, Risk Manager

The Office of Administrative Law approved the California Occupational Safety & Health Standards Board's proposed amendments to the current heat illness regulation.  The amended regulations will go into effect on May 1, 2015, in time for this year's growing season and warmer weather.  The amendments specify water and shade requirements, and add new language on emergency response procedures, acclimation, and training. 

All California employer’s with outdoor work environments must comply with the Heat Illness Prevention Standard T8 CCR 3395. “Heat Illness” means a serious medical condition resulting from the body's inability to cope with a particular heat load, and includes heat cramps, heat exhaustion, heat syncope (fainting due to heat) and heat stroke. Environmental risk factors for heat illness include working conditions that create the possibility that heat illness could occur, including air temperature, relative humidity, radiant heat from the sun and other sources, conductive heat sources such as the ground, air movement, workload severity and duration, protective clothing and personal protective equipment worn by employees.The amended requirements for employers include the following:
  • Employees shall be allowed and encouraged to take a preventative cool-down rest in the shade when they feel the need to do so to protect themselves from overheating. Such access to shade shall be permitted at all times. “If a worker shows signs or symptoms of heat illness, he or she must not be ordered back to work and must be continuously observed until the symptoms are abated.” -DOSH
  • The supervisor shall monitor the employee that is taking a preventative cool-down rest by asking him or her if they are experiencing symptoms of heat illness and encourage the worker to remain in the shade. Early warning signs of heat exposure include: pale skin, heavy sweating, headaches, muscle cramps, and fatigue. First aid measures must be provided right away and if heat illness is suspected, contact emergency medical assistance.
  • High-heat procedures remain triggered at 95 degrees. During high heat, employees must be effectively observed and monitored by the employer; this includes the use of a mandatory buddy system and regular communication with supervisors.
  • The amendments also require designating one or more employees on each work site as authorized to call 911, and allowing other employees to call 911 when no designated employee is available; remind employees throughout the work shift to drink plenty of water; hold pre-shift or tailgate meetings before the work starts to review high-heat procedures; encourage staff to drink plenty of water; and remind employees of their right to take a cool-down rest when necessary.
  • New emergency response procedures include ensuring that effective communication by voice, observation, or electronic means is maintained so that employees at the work site can contact a supervisor or medical services when necessary.
  • The revisions enhance the previous heat illness prevention plan requirements including:
    • Respond to signs and symptoms of possible heat illness, including but not limited to first aid measures and how emergency medical services will be provided.
    • If a supervisor observes, or any employee reports, any signs or symptoms of heat illness in any employee, the supervisor shall take immediate action commensurate with the severity.
    • If the signs/symptoms are indicators of severe heat illness (such as, but not limited to, decreased level of consciousness, staggering, vomiting, disorientation, irrational behavior or convulsions) the employer must implement emergency response procedures.
    • An employee displaying signs/symptoms of heat illness shall be monitored and not left alone or sent home without being offered onsite first aid and/or being provided with emergency medical services.
    • Contacting 911 and, if necessary transporting employees to a place where they can be reached by an emergency medical provider.
    • Ensure that clear and precise directions to the work site can and will be provided to 911.
  • A new requirement is acclimatization, which requires that all employees be closely observed by a supervisor or designee during a heat wave. A ‘heat wave’ means any day in which the predicted high temperature for the day will be at least 80 degrees and at least ten degrees higher than the average high daily temperature in the preceding five days. It also applies to an employee that has been newly assigned to a high heat area and shall be closely observed by a supervisor or designee for the first 14 days of his/her employment.
  • The revised regulation now specifically requires effective training in the following topics and shall be provided to each supervisor and non-supervisory employee before the employee begins work that should reasonably be anticipated to result in exposure to the risk of heat illness:
    • The employer’s procedures for complying with the requirements of this standard, including but not limited to, the employer’s responsibility to provide water, shade, cool-down rests, and access to first aid as well as the employees’ right to exercise their rights under this standard without retaliation.
    • The concept, importance, and methods of acclimatization pursuant to the employer’s procedures under subsection (i)(4).
    • The different types of heat illness, common signs and symptoms of heat illness and appropriate first aid and or emergency responses to the different types of heat illness and in addition that heat illness may progress quickly from mild symptoms and signs to serious life-threatening illnesses.

Members are encouraged to review current heat illness and prevention plans and amend them to reflect the new requirements, including the new water requirements, shade requirements, preventative cool-down rest periods, high heat procedures, acclimation, and training policies and procedures.

The Authority is in the process of revising its Heat Illness Prevention Plan template and will provide notification to members once it is available. 
Information about the new regulations is available at the Division of Occupational Safety and Health website https://www.dir.ca.gov/dosh/heatillnessinfo.html.

Risk Solutions

Competent Playground Inspections

by Melaina Francis, Risk Manager

Playgrounds and outdoor play equipment are carefully designed to provide a safe setting that offers children fresh air, friends, and exercise. In recent years, it is estimated that there were more than 200,000 injuries annually on public playgrounds across the country that required emergency room treatment. The operation of a playground requires a system of regular inspections and detailed audits to keep the facility ready for use and help prevent injuries. 

Is your agency on the right path when it comes to conducting competent playground inspections?  Generally, park and recreation or public works personnel are responsible for playground inspections.  Appropriate personnel need to be competent -- not complacent -- with inspections of playground equipment and surrounding park areas. 
California law on playgrounds (Health and Safety Code section 115725-115735) begins:

(a) All new playgrounds open to the public built by a public agency or any other entity shall conform to the playground-related standards set forth by the American Society for Testing and Materials and the playground-related guidelines set forth by the United States Consumer Product Safety Commission.

(b) Replacement of equipment or modification of components inside existing playgrounds shall conform to the playground-related standards set forth by the American Society for Testing and Materials and the playground-related guidelines set forth by the United States Consumer Product Safety Commission.

(c) All public agencies operating playgrounds and all other entities operating playgrounds open to the public shall have a playground safety inspector, certified by the National Playground Safety Institute, conduct an initial inspection for the purpose of aiding compliance with the requirements set forth in subdivision (a) or (b), as applicable. Any inspection report may serve as a reference when the upgrades are made, but is not intended for any other use.

California standards conform to playground-related national technical standards set forth by the American Society on Testing and Materials (ASTM) (e.g., F1487 for equipment standards, F1292 for surfacing, andThe Public Playground Safety Handbook: Publication #325 by the U.S. Consumer Product Safety Commission [CPSC]). 

A playground audit is an initial comprehensive examination of a playground. The purpose of an audit is to check a playground for compliance with standards and identify hazards. Audits should be conducted by Certified Playground Safety Inspectors (CPSI).

Whether an audit is conducted in-house by trained staff members, or the agency contracts with a third-party operator, specialized knowledge and skill are essential. Auditors need to know the standards, be competent using playground test gauges and probes, and have the knowledge to identify hazards and the ability to clearly document their findings. 

The CPSI should inspect playgrounds upon initial installation and conduct annual comprehensive playground equipment audits. Playgrounds modified by adding new equipment or installation of new surfacing requires inspection by the CPSI, including how the modification interfaces with other playground components (e.g., to make sure that the fall zone for the new swings is large enough so that if youngsters do fall off, they don’t hit other equipment or barriers like fences).  ADA standards are built into the national playground standards. Whenever a playground is updated, it must also be brought into compliance with ADA.

Although a playground may be a recent installation, regular inspections are essential. For example, rain run-off or wind can displace sand or other loose-fill material that could lead to an injury if a child should fall and there is not sufficient material to attenuate the impact. “Focus on surfacing. Falls to surface are responsible for 75% of playground occurrences that equates to 500 injuries per day,” said Butch DeFillippo, Managing Partner at PlaySafe, LLC during his session titled ‘Competent Playground Inspections’ presented last October at the Authority’s annual Risk Management Educational Forum.

An inspection involves a systematic assessment of a playground to look for breakage, wear, litter, exposure, deterioration, vandalism, or damage.  Inspections should be performed by trained staff members. Inspections alone do not constitute a comprehensive maintenance program. Any problems found during the inspection should be noted and fixed as soon as possible.  Frequency of inspections should be based on the level of use on the playground, environmental issues, type of surfacing, type of equipment, and other pertinent factors.  Supervisors should periodically conduct unannounced field inspections to ensure staff is conducting effectual playground inspections.

Trained staff should have the appropriate tools and equipment necessary to conduct competent inspections, including: inspection forms specific to equipment they are inspecting, copies of the ASTM F1487, CPSC Publication 325, and materials provided by the manufacturer. Appropriate testing equipment includes:

  • Head and torso probes – needed to check for head and neck entrapments. Any opening where the torso probe can be inserted must be large enough for insertion of the head probe.
  • Protrusion gauges – a set includes four gauges for checking protrusions and possible entanglements.
  • Fish probe – used to check for partially bound head and neck entrapments.

Additionally, trained staff should look for open S-hooks, worn chain links, shackles, or other connecting fasteners and have these replaced before they fail. Inspect swing seats; flipping them over looking for cracks or excessive wear. Inspect components for separations, sharp edges, loose or protruding bolts, anything that could cause impalement, and strangulation. Look for things that do not belong on playgrounds such as bottles/cans, trash, broken glass, and even discarded needles.

If damaged playground equipment is identified, it should be taken out of service until repairs or replacement can be made. This should be done by removing the entire component (e.g., a defective swing seat requires chain removal as well). When barricading to prevent access, do so in such a way that ensures temporary materials are secure and will not pose a safety hazard. Caution tape is not an acceptable means to render equipment out of service.

Ongoing preventative maintenance is important. From sweeping or using a leaf blower on rubberized/pour-in place surfacing to ensure abrasives, such as sand, is removed from the surface, to the raking of sand and engineered wood fiber ensuring that these materials are maintained at a depth of least 12 inches (placing surface level marking stickers on each component is a good way to accomplish this task).

Ideally, there should be appropriate age separation for play equipment with signage also indicating adult supervision is recommended.

  • Toddler – 6 to 23 months
  • Preschool – 2 to 5 years
  • School Age – 5 to 12 years

Proper documentation of hazards and corrective action is essential. Software programs such as City Reporter and Park Protector can help make these audits much more efficient with park inspection modules loaded with checklists based on ASTM standards, CPSC recommendations, and ADA regulations.  

Although playground standards are self-policing, an out-of-compliance playground can place children at risk of injury or death and create liability exposures to the members.

The Court Report

Court Defines ‘Similarly Situated’ Employee for Bias Cases

by Traci I. Park Partner, Burke, Williams & Sorensen, LLP 

In employment discrimination cases, plaintiff-employees often attempt to prove that they were treated differently due to their membership in a protected category, such as age, race or gender, by offering evidence that they were subject to different standards or more harsh treatment than counterparts outside of their protected class.  For example, a female employee might try to prove gender discrimination with evidence that her male counterparts were paid more for comparable work.  Or, an Hispanic employee might try to prove that he was discriminated against based on his race with evidence that Caucasian co-workers were not comparably disciplined for similar misconduct.  For such evidence to be relevant and admissible in court, the proponent must establish a requisite threshold of similarity between the facts and circumstances of his or her situation to that of the comparative situation he or she intends to offer at trial as proof of discrimination.

For cases involving comparative discipline evidence, the Ninth Circuit Court of Appeals utilizes a “violation of similar company policies” standard to assess whether employees are “similarly situated.”  An “exact match” between violations is not required, but the policy violations must be of “comparable seriousness.”  See Earl v. Nielsen Media Research, Inc. (9th Cir. 2011) 658 F.3d 1108.

Recently, the Eighth Circuit Court of Appeals took the “similarly situated” analysis a slight step further than the 9th Circuit’s approach when it ruled that employees can be deemed “similarly situated in all relevant respects” if they engage in misconduct that is “comparable to or more serious than” the misconduct of the plaintiff.  See Austin v. Long, 8th Cir., No. 14-2044 (Feb. 23, 2015).

In the Austin case, the Eighth Circuit ruled that an African-American prosecutor could proceed to trial on his race bias claims. 

Gary Austin was employed by the First Judicial District for the state of Arkansas as a deputy prosecuting attorney. Fletcher Long was the prosecuting attorney for the First Judicial District and Austin’s manager. Austin was employed from January 2006 through August 2011, at which time his employment was terminated, allegedly for poor performance in several aspects of his job, including failure to follow protocol on office expenses, deviation from office policy on felony bond reduction orders and expungement orders, and incurring extraordinary expenses without prior approval. Following his discharge, Austin brought claims of race discrimination against Long in his official and individual capacities pursuant to 42 U.S.C. Sections 1981 and 1983 and the 14th Amendment of the Constitution. 

Long filed a motion for summary judgment in the District Court for the Eastern District of Arkansas, arguing that Austin could not succeed on his claim for race discrimination.  In opposing Long’s motion for summary judgment, Austin argued that Long’s stated reasons for discharge were pretextual because Long had failed to discharge two white prosecutors who engaged in more serious misconduct—one had been convicted of driving while intoxicated and one had received a formal sanction from the Committee on Professional Conduct for ethics violations. The district court denied Long’s motion for summary judgment.

On appeal, the 8th Circuit first addressed the district court’s ruling that Austin could proceed to a jury to decide whether Long’s stated reasons for terminating Austin’s employment were pretext for discrimination (following the common burden-shifting analysis used in cases brought under Title VII of the 1964 Civil Rights Act, which is also applicable to cases under §§ 1981 and 1983). The court reasoned that a comparable employee may be “similarly situated in all relevant respects” even if he did not engage in the exact misconduct as the plaintiff. The 8th Circuit noted that “the similarly situated co-worker inquiry is a search for a substantially similar employee, not for a clone. Co-workers can be similarly situated in all relevant respects if their misconduct is comparable to or more serious than that of the plaintiff.” As such, the 8th Circuit was unwilling to upset the ruling by the district court that Austin’s proffering of two white employees who engaged in more serious misconduct was sufficient to survive summary judgment.  Accordingly, the 8th Circuit upheld the district court’s decision in its entirety, allowing Austin to proceed to trial on his claim of race discrimination against Long in his official and individual capacities.

While the Ninth Circuit’s approach in the Austin case is stated slightly differently than the test articulated by the Eighth Circuit in the Earl case, if faced with similar facts, the Ninth Circuit could follow the lead of the Eighth Circuit on this important and ever-evolving issue.