By Peyton S. Irby

    Mississippi employment lawA recent case from the U.S. Court of Appeals for the 5th Circuit—which covers Louisiana, Mississippi, and Texas—dealt with an age discrimination case in which the discharged employee argued that similarly situated younger employees weren’t terminated for similar performance violations. Let’s see how the court analyzed the matter.


    James Hinga worked as a machinist for MIC, a company that assembles and sells actuators (industrial parts that control the flow of liquids and gases). The top casing of an actuator must be flattened (or “lapped”) to within .001 inches of level, and the bottom casing must be lapped to within .002 inches of level. This standard limits the size of the seam through which a spark may escape and ignite volatile gas.

    One of MIC’s distributors informed it that a number of its actuators had failed an inspection of the lapping tolerances. MIC ended up recalling 662 actuators and found a number of them to have lapping violations. The cost of the recall was approximately $194,000.

    MIC’s subsequent investigation identified two employees responsible for the recall: Hinga, the machinist who lapped the defective parts and failed to inspect the tolerances, and Joel Watts, an employee in the final assembly department who failed to properly inspect the parts. Both were given the option of resigning instead of being terminated, and both resigned. Hinga was 76 years old at the time.

    Hinga sued MIC, arguing that three similarly situated younger employees, Billy Ashorn, Kevin Glenz, and Ronald Warson, had committed similar violations but weren’t discharged. The trial court disagreed and dismissed his case. Hinga appealed to the 5th Circuit.

    Court’s decision

    The court noted that to be considered similarly situated, the employees Hinga used for comparison had to (1) have the same job responsibilities as he did, (2) share the same supervisor or have their employment status determined by the same person, and (3) have a comparable history of violations. According to the court, a comparator need not be “entirely” identical to the complaining employee, but if their differences account for the difference in their treatment, then the employees are not similarly situated for an employment discrimination analysis.

    The court held that Ashorn, Glenz, and Warson were not appropriate comparators because they didn’t have the same job responsibilities as Hinga. Their jobs required them to assemble parts they received from inventory, and none of them was a machinist. Further, their assemblies were not defective. Thus, they couldn’t have engaged in conduct nearly identical to Hinga’s because none of them was responsible for inspecting actuators for flatness.

    Because the parts were defectively lapped, not defectively assembled, Hinga’s conduct was dissimilar to the conduct of his proposed comparators. In addition, none of the comparators had a history of reprimands, while Hinga had at least one previous reprimand. The 5th Circuit therefore upheld the dismissal of his age discrimination claim .Hinga v. MIC Group, LLC, 2015 WL 2084021 U.S. Ct. Appls. (5th Cir.)

    Pay attention to what employees do

    When you’re considering disciplining an employee, it’s always wise to examine how you disciplined any “nearly identical” employees with a similar history. As this case demonstrates, employees with different job responsibilities who don’t have the same supervisor or the same level of responsibility are generally not going to be considered valid comparators. If you fail to conduct a “similarly situated” analysis, you could end up on the losing side of a lawsuit.

    Peyton Irby, a member of The Kullman Firm in Jackson, and an editor of Mississippi Employment Law Letter, can be reached at 601-366-2990 or