The Third Circuit holds that an employee failed to demonstrate an inference of age discrimination where his alleged comparator performed different job functions and was not, as a result, similarly situated.

The Third Circuit upheld dismissal of the employee's age discrimination claim, holding that he could not set forth a prima facie case of age discrimination. The employee was a 53-year-old doctor who was employed as the City's Deputy Health Commissioner for Health Promotion. In 2008, the mayor directed that the Commissioner of the Department of Health freeze hiring and cut his budget for the department. Two days following the announcement of the hiring freeze, the Commissioner sought permission to hire a doctor (who was 31 years old) for the new position of Director of Policy and Planning. Several months later, the employee was laid off due to the budget cuts and alleged that his layoff was due to his age.

In upholding the dismissal of the employee's age discrimination claim, the Third Circuit held that the employee and the newly hired Director of Policy and Planning were not similarly situated to support an inference of age discrimination under the ADEA. In so holding, the Third Circuit expressly noted that the factual record "does not support a claim [that the employee and the Director of Policy and Planning performed the same job duties]." To the contrary, the Third Circuit noted that the employee spent more than half of his working time performing disability determinations on City employees and conducting drug and alcohol testing, whereas the Director of Policy and Planning was hired to reform the Department's approach to policy. In particular, the Director of Policy and Planning's "responsibilities consisted of manipulating data for public health analysis, interpreting data on health systems, generating such data, and expressing public health concerns in the context of grant proposals and public health assessments." Since the two doctors "were not similarly situated in all relevant respects, including in job functions…, [the employee] could not have established an inference of discrimination based on age." Significantly, the Third Circuit also found that the employee could not sustain his age discrimination claim through his allegations that another, younger doctor (who was 46 years old) was treated more favorably. In rejecting the employee's argument, the Third Circuit noted that "age differences of less than ten years are not significant enough to make out the fourth part of the age discrimination, prima facie case."

Case Law Alert - 4th Qtr 2012