NEW JERSEY FEDERAL DISTRICT COURT SAYS THAT ALTHOUGH A PLAINTIFF MAY USE COMPARATOR EVIDENCE TO SHOW HE WAS WRONGFULLY DISCHARGED BECAUSE OF HIS RACE, THE ONLY “VARIABLE” IN THE COMPARATOR EVIDENCE SHOULD BE THE RACE OF THE PLAINTIFF

Although a Plaintiff may attempt to prove his discrimination claim by showing how he was treated differently than similarly situated workers not of his protected class, e.g., race, according to a recent decision of the federal District Court of New Jersey there must be little or no difference in the offered comparator evidence other than the protected class characteristic of the Plaintiff. Wilson v. M & M Mgmt. Co., 2019 U.S. Dist. LEXIS 107955 (D.N.J. decided June 27, 2019). For example, in the race discrimination claim brought in Wilson, the Court required an African American Plaintiff to show there was no discernable difference between his conduct and those of the Caucasian coworkers he was comparing himself to other than their race. Unfortunately, for Aaron Wilson he was not able to do so.

Plaintiff Aaron Wilson worked as a driver for Defendant M & M Management Company which housed a thrift store located in West Berlin, New Jersey. Id. at *1. Wilson was terminated in January 2016, after which he filed a lawsuit against his employer alleging hostile, work environment, retaliation and wrongful discharge based on his African American race under both Title VII and the New Jersey Law Against Discrimination (LAD) Id. at *6-7. Wilson alleged that M & M terminated him in retaliation for his complaints about a white coworker’s racially discriminatory behavior toward him. Id. However, M & M argued instead that the actual reason for Wilson’s termination was his excessive documented disciplinary infractions over a period of two years. Id.

In its decision the district court emphasized that even though M & M met its burden of articulating a legitimate nondiscriminatory reason for firing Wilson based on his extensive disciplinary record, Wilson would still have opportunity to prevail on his claims if he was able to show the reasons offered by the employer for firing him were pretextual, and in fact he was actually terminated in retaliation for the exercise of his protected right to complain of a racially biased hostile work environment. Id. (citing to McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) for the proposition that once a plaintiff makes prima facie showing of discrimination and a defendant successfully refutes it, the burden shifts to the plaintiff to show that defendant’s reasons were pretextual). To show pretext, the relevant standard requires a plaintiff to “demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its actions that a reasonable factfinder could rationally find them ‘unworthy of credence.’” Wilson at *11 (quoting Keller v. Orix Credit Alliance, 130 F.3d 1101, 1109 (3d Cir. 1997).

One way a plaintiff may establish pretext is by proving disparate treatment through the presentment to the court of comparator evidence, or evidence the plaintiff was treated differently than coworkers who were similarly situated in all respects as plaintiff. Wilson at *20 (citing Amfosakyi v. Frito Lay, Inc., 496 F. Appx. 218, 224 (3d Cir. 2012)). Wilson attempted to make this showing by providing evidence that his white coworkers were not disciplined as much as he was for committing disciplinary infractions. However, the Court found Wilson failed to show sufficient evidence to demonstrate these comparator employees were similarly situated because their disciplinary infractions were different than Wilson’s. Wilson at *21. Specifically, while Wilson alleged other drivers were not disciplined as severely for calling into dispatch repeatedly as he was, he failed to allege that these other drivers also complained about their routes or were insubordinate towards their supervisors as he was. Id. Therefore, the Court concluded Wilson presented insufficient evidence to establish pretext and dismissed Wilson’s claim, holding that it “cannot infer differing treatment was based on racial animus when the conduct was different. In other words, Plaintiff has not provided comparators where the only variable that is different is race”. Id.

At Mashel Law LLC, we are well experienced in handling LAD claims. If you believe your employer terminated you based on your race, gender, age, disability or other protected class, call the attorneys at Mashel Law (732) 536-6161 or fill out the contact form on this page for immediate help in assessing whether you have an actionable claim against your employer. At Mashel Law, LLC, located in Marlboro, New Jersey, we are dedicated to protecting the rights of employees.