Monday, December 22, 2008
Billue v. Praxair, ___F.3d___(2d Cir. Nov. 20, 2008) reminds us that in employment discrimination if you are going to make a claim of disparate treatment the comparators you use should be similar. As the 2d Circuit explained:
We agree with the District Court that plaintiff has not adequately
established disparate treatment because his proposed “similarly situated” employee was materially distinct from plaintiff. See Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000) (holding that, to establish an “inference of discrimination” in a prima facie case of discrimination, “[a] plaintiff may . . . show[ ] that the employer subjected him to disparate treatment, that is, treated him less favorably than a similarly situated employee outside his protected group,” and that a comparable employee must be “similarly situated in all material respects” (internal quotation marks omitted)). This
employee, who is white, left his delivery truck unattended for five minutes, with the rear trailer doors locked, within 100 yards of the defendant’s property, and under the surveillance of defendant’s security cameras. By contrast, plaintiff, who is African-American, urinated in a public
parking lot along a highway, temporarily abandoned his truck for roughly 20 minutes while he shopped in a sporting goods store, and did not secure the truck pursuant to defendant’s protocols. Accordingly, we conclude that defendant’s conduct was materially different from the conduct of his
proposed “similarly situated” employee.
Mitchell H. Rubinstein