2d Circuit Affirms Dismissal of Title VII Race Discrimination Claim; Absent/Tardy Co-Worker Comparators Were Not “Similarly Situated”

In Jordan v. United Health Group Inc., No. 18-2268, 2019 WL 4071943 (2d Cir. Aug. 29, 2019) (Summary Order), the Second Circuit, inter alia, affirmed the dismissal of plaintiff’s race discrimination claim asserted under Title VII of the Civil Rights Act of 1964.

After briefly summarizing the law – namely, that “[t]o prevail on [a Title VII discrimination] claim, a plaintiff must first establish a prima facie case of discrimination” which requires them to “establish[], inter alia, that an adverse employment action took place and the action occurred under circumstances giving rise to an inference of discrimination” – the court applied it to the facts.


Jordan’s argument that she offered evidence of similarly situated employees who arrived at work late but were not disciplined for their tardiness is without merit. The district court properly concluded that Jordan failed to establish a prima facie case of discrimination because she could not demonstrate that any other employees were similarly situated. While similarly situated employees who receive different treatment can be evidence of discrimination, the employees “must be similarly situated in all material aspects.” Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 64 (2d Cir. 1997). To satisfy the “all material respects” requirement, a plaintiff must show that similarly situated employees “engaged in comparable conduct,” meaning there is a “reasonably close resemblance of the facts and circumstances of plaintiff’s and comparator’s cases,” such that “the conduct for which the employer imposed discipline was of comparable seriousness” to the conduct of the similarly situated but undisciplined employees. Graham v. Long Island Railroad, 230 F.3d 34, 40 (2d Cir. 2000).

*2 As the magistrate judge reasoned, Jordan did not offer any evidence showing that her co-workers’ absences and late arrivals were “unplanned,” i.e., unapproved, and therefore subject to discipline. Further, the purported comparators were not similar in all material respects; one employee was on a flexible schedule due to a medical condition, another held a position different from Jordan, and two others did not have a number of absences and late arrivals comparable to Jordan’s.

On this basis, the court held that the district court properly granted summary judgment on plaintiff’s discrimination claim.

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