Legal writing on display in latest en banc back and forth

This time it's a civil case and it's Judge Newsom for the majority, in which ED CARNES, Chief Judge, TJOFLAT, MARCUS, WILSON, WILLIAM PRYOR, JORDAN, BRANCH, and GRANT, Circuit Judges, joined.

Judge Rosenbaum filed an opinion concurring in part and dissenting in part, in which MARTIN and JILL PRYOR, Circuit Judges, joined.

Newsom frames the issue:

Faced with a defendant’s motion for summary judgment, a plaintiff asserting an intentional-discrimination claim under Title VII of the Civil Rights Act of 1964, the Equal Protection Clause, or 42 U.S.C. § 1981 must make a sufficient factual showing to permit a reasonable jury to rule in her favor. She can do so in a variety of ways, one of which is by navigating the now-familiar three-part burden-shifting framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under that framework, the plaintiff bears the initial burden of establishing a prima facie case of discrimination by proving, among other things, that she was treated differently from another “similarly situated” individual―in court-speak, a “comparator.” Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 258–59 (1981) (citing McDonnell Douglas, 411 U.S. at 804). The obvious question: Just how “similarly situated” must a plaintiff and her comparator(s) be?
To date, our attempts to answer that question have only sown confusion. In some cases, we have required a proper comparator to be “nearly identical” to the plaintiff. See, e.g., Nix v. WLCY Radio/Rahall Commc’ns, 738 F.2d 1181, 1185 (11th Cir. 1984) (citations omitted). In others, we have expressly rejected a nearly-identical standard. See, e.g., Alexander v. Fulton Cty., 207 F.3d 1303, 1333–34 (11th Cir. 2000). In still others, without even mentioning the nearly-identical benchmark, we have deemed it sufficient that the plaintiff and the comparator engaged in the “same or similar” conduct. See, e.g., Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997) (per curiam). And to make matters worse, in still others we have applied both the nearly-identical and same-or-similar standards simultaneously. See, e.g., Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999). It’s a mess.
In an effort to clean up, and to clarify once and for all the proper standard for comparator evidence in intentional-discrimination cases, we took this case en banc and instructed the parties to address the following issue:

The Supreme Court has held that in order to make out a prima facie case of discrimination under Title VII of the Civil Rights Act of 1964, the Equal Protection Clause of the Fourteenth Amendment, or 42 U.S.C. § 1981, a plaintiff must prove, among other things, that she was treated differently from another “similarly situated” individual. What standard does the phrase “similarly situated” impose on the plaintiff: (1) “same or similar,” (2) “nearly identical,” or (3) some other standard?

 More:

So, we are left to try to find the sweet spot between Lewis’s squishy not-useless standard and the City’s preferred nearly-identical standard. For reasons explained below, we hold that a plaintiff proceeding under McDonnell Douglas must show that she and her comparators are “similarly situated in all material respects.”

Judge Rosenbaum has this to say about the Majority:

The Majority Opinion tries to hide the “not onerous” elephant in the McDonnell Douglas framework by wishing it away as a mere “descriptor that doesn’t pertain to the substantive standard that governs the prima facie analysis.” Id. In the Majority Opinion’s view, then, the plaintiff’s burden to establish a prima facie case is “not onerous” with respect to something other than her burden to establish a prima facie case under the substance of the standards governing the prima facie case.
Wait . . . what?
Of course, whether standards are onerous or not governs whether the plaintiff’s burden on the prima facie case is onerous or not. It makes no sense to speak of the plaintiff’s prima facie burden as “not onerous” if the plaintiff must, in fact, satisfy an onerous substantive standard to meet her prima facie burden.