Third Circuit Affirms Summary Judgment for Employer in Title VII Race Discrimination Case: Comparator Evidence Insufficient

The plaintiff, a clinical pharmacist, alleged race-based discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. The plaintiff claimed that his employer discriminated against him based upon his race when they issued him a first written warning and limited his work hours as discipline for “sleeping on the job.” According to the plaintiff, his employer did not impose the same discipline on other clinical pharmacists who were non-Black and who engaged in different misconduct than the plaintiff. The plaintiff attempted to argue that because the misconduct he engaged in and the misconduct the other pharmacists engaged in, while different, all could result in termination under the employer’s progressive discipline policy, they were comparators. The District Court granted summary judgment in favor of the employer.

The Third Circuit affirmed the Eastern District of Pennsylvania’s grant of summary judgment in favor of the employer. In doing so, the court explained that the plaintiff failed to establish a prima facie case of race-based employment discrimination, and even if he had done so, he could not prove that his employer’s proffered reason for disciplining him was pretextual.

The court discussed that comparators do not need to be identical in establishing a prima facie case, but they must be similarly situated in “all material respects.” In that regard, the court noted that considerations include that the comparator “engaged in the same conduct.” The court found that the other pharmacists the plaintiff tried to use as comparators were not appropriate because they engaged in different misconduct with different safety risks than sleeping on the job.

The court held, “An employer’s adoption of a progressive discipline policy does not render each employee who is eligible for the same sanction ‘similarly situated’ for purposes of Title VII, particularly when the policy includes a ‘specific statement that progressive discipline is optional.’” The court concluded that the plaintiff could not meet his burden to prove a prima facie race-based employment claim with his offered comparator evidence.