There are Two Sides to Every Story — Eleventh Circuit Grapples With Discrimination Standard
Anyone who has ever made an employment decision has probably been confronted with two (or more) very different interpretations of the same story. When faced with differing narratives of a workplace occurrence, how does one determine whether there is enough evidence to decide on something as important as whether an employee will keep their job?
The U.S. Court of Appeals for the Eleventh Circuit — the federal appellate court hearing cases from Florida, Georgia, and Alabama — confronted this question in a recent case involving two employees of a coal company who were terminated for refusing to submit to a drug test. In the case, Demarkus Hall and Eddie Hughes v. Coal Bed Services, Inc. and Pate Holdings, the Eleventh Circuit must now decide whether to affirm a decision by the district court, which awarded summary judgment in favor of the employer, dismissing the case.
The basic facts are these: Mr. Hall and Mr. Hughes were African American employees who complained of being assigned less desirable jobs and being passed over for training opportunities. Among other things, they also claim that (as opposed to white employees) a supervisor would not call them by their names. On the day at issue, Mr. Hall and Mr. Hughes were subjected to a drug screen of all employees on the job site. Mr. Hall and Mr. Hughes refused the drug test, as did at least one white employee. A white employee who refused the test was allowed to return to work after agreeing to submit to random drug testing. Mr. Hall and Mr. Hughes also asked to return to work but were denied, and the company terminated their employment. They then sued, alleging race discrimination and retaliation under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981.
The district court granted summary judgment in favor of the employer, finding that the employee who was allowed to return to work despite refusing the drug test was not a valid comparator. Specifically, the court concluded that the white employee was not similarly situated in all respects because he had been employed by the company longer and was not in the same exact position as Mr. Hall and Mr. Hughes. The District Court also held that Mr. Hughes and Mr. Hall had not presented a “convincing mosaic” of circumstantial evidence that would support an inference of discrimination because their evidence consisted solely of “bits and pieces.” The district court finally concluded that the employer had presented a non-pretextual reason for its decision to terminate Mr. Hall and Mr. Hughes due to their drug test refusal, because they had been employed for less time with the company and overall had less experience.
Mr. Hall and Mr. Hughes appealed this ruling to the Eleventh Circuit, and the EEOC filed an amicus brief supporting the former employees’ position. The two basic issues heard before the court in oral argument on May 6, 2025, were: (1) how close must a comparator be in deciding whether an employee is subjected to disparate treatment; and (2) how much evidence is required to establish a “convincing mosaic” of discrimination? At oral argument, Judge Newsom reminded company counsel of something all employers ought to keep in mind when making employment decisions: “But it seems to me, there are two stories to tell.”
The three judges hearing the case did not necessarily tip their hand on how they would decide, though one judge did encourage the parties to mediate or settle the case. For now, though, the case is a good reminder that employers should always consider all sides of the story (including treatment of other employees) before deciding what to do, and that things may not always be as crystal clear as originally thought. The decisions will not always be easy, but this case is a reminder to take all considerations into account before making them.
