In a recent case, Rubert v. Daniel King, et al, 2020 WL 5751513 (SDNY Sept. 25, 2020), the court, inter alia, granted defendants’ motion to dismiss plaintiff’s disparate treatment (termination) discrimination claim under 42 U.S.C. § 1981. (I wrote about the court’s denial of defendants’ motion with respect to plaintiff’s hostile work environment claim here.)
As to plaintiff’s discriminatory-termination claim, the court explained:
Plaintiff fails to provide non-conclusory allegations that plausibly suggest that his race, national origin, or a relevant protected activity, was a “but-for” cause of his termination. Indeed, Plaintiff can point to no racially discriminatory statements or conduct by his Walmart supervisors, or anyone conceivably involved in the decision to fire him. (See generally Am. Compl.)5 Rather, Plaintiff simply (and conclusorily) alleges that he was “fired because defendants saw him as another expendable Hispanic,” and that “Walmart has a history of discrimination and illegal conduct.” (Pl.’s Reply Mem. ¶ 6.) These are “boilerplate assertion[s]” unsupported by specific facts. …
Further, Plaintiff’s conclusory assertion regarding the reason for his firing is contradicted by Plaintiff’s own pleadings. Indeed, Plaintiff acknowledges that it was his confrontation with King in the Walmart parking lot—and thus, his subsequent arrest and conviction—that directly led to his termination. (See Am. Compl. 11 (explaining this his “confrontation in [the] Walmart parking lot … led me to get fired”).) Such an altercation, and surely Plaintiff’s related arrest and conviction, amount to “legitimate, nondiscriminatory” reasons for his discharge. See Smith v. N.Y. & Presbyterian Hosp., 440 F. Supp. 3d 303, 335 (S.D.N.Y. 2020) (explaining that an employee’s “disruptive behavior in the workplace” constitutes a legitimate, non-discriminatory reason for adverse actions); Welland v. Citigroup, Inc., No. 00-CV-738, 2003 WL 22973574 at *6 (S.D.N.Y. Dec. 17, 2003) (“Discharging an employee for violating company policy constitutes a legitimate nondiscriminatory reason for terminating employment.” (citations omitted)), aff’d, 116 F. App’x 321 (2d Cir. 2004). Plaintiff’s own allegation therefore suggests that his termination did not occur “under circumstances giving rise to an inference of discriminatory intent.” Brown, 673 F.3d at 150. Rather, Plaintiff’s own pleadings (and matters of which the Court may take judicial notice) suggest that he was fired based on a violent altercation, arrest, and conviction. Plaintiff has therefore failed to allege circumstances suggesting “a causal connection between the alleged adverse employment action and [his] race.” Edwards v. Thomson Reuters (Tax & Accounting) Inc., No. 19-CV-93, 2020 WL 2132348, at *4 (S.D.N.Y. May 5, 2020).
Moreover, Plaintiff’s allegations are particularly self-defeating in light of the Supreme Court’s recent decision establishing “but-for” causation as a necessary element of § 1981 suits. See Comcast, 140 S. Ct. at 1019. In light of this requirement, Plaintiff’s affirmative acknowledgement of sufficient, non-discriminatory reasons for his termination is determinative. As the Second Circuit has recently explained, where “but-for” causation is required, a plaintiff “must establish that the employer’s stated non-discriminatory reason is either false or inadequate to support the adverse employment action.” Naumovski v. Norris, 934 F.3d 200, 215 (2d Cir. 2019). Plaintiff’s express acknowledgement, apparent from the face of his Amended Complaint, that the altercation (a sufficient, non-discriminatory reason) led to his termination is thus fatal to his claims, even at the pleading stage. See Amaya v. Ballyshear LLC, 295 F. Supp. 3d 204, 222 (E.D.N.Y. 2018) (dismissing a plaintiff’s retaliation claims because materials integral to her complaint “undercut but-for causation,” and explaining that the plaintiff thus “failed to successfully plead that ‘but for’ the [p]laintiff’s complaints of gender, race, and national origin discrimination, the [d]efendants would not have terminated [the plaintiff]”); see also Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 90 (2d Cir. 2015) (explaining that a plaintiff pursuing Title VII retaliation claims “must plausibly allege that the retaliation was a ‘but-for’ cause of the employer’s adverse action” (citation omitted)); Langella v. Mahopac Cent. Sch. Dist., No. 18-CV-10023, 2020 WL 2836760, at *11 (S.D.N.Y. May 31, 2020) (dismissing ADA claims for failing to plausibly allege that disability was the “but-for” cause of an adverse employment decision).6
*8 To the extent that Plaintiff argues that Walmart’s differential treatment of himself and King—a white employee—reflects racially discriminatory treatment, (see Pl.’s Mem ¶¶ 4–5), this argument also fails. To show disparate treatment, “the individuals with whom [the plaintiff] attempts to compare herself must be similarly situated in all material respects.” See Bush v. Fordham Univ., 452 F. Supp. 2d 394, 410 (S.D.N.Y. 2006) (quoting Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000)); see also O’Neal v. State Univ. of N.Y., No. 01-CV-7802, 2006 WL 3246935, at *11 (E.D.N.Y. Nov. 8, 2006) (holding that the focus should be on “employees that have similar qualifications, display similar disciplinary records[,] or committed similar insubordinate acts”). Here, Plaintiff and King were decidedly not similarly situated. First, as Plaintiff acknowledges, he and King held different jobs, with Plaintiff working in electronics and King working as a security guard. (See Am. Compl. 8; Pl.’s Mem. ¶ 7.) Second, and more importantly, while the August 2, 2017 confrontation led to Plaintiff’s arrest and conviction, (see Arrest Record; Certificate of Conviction), Plaintiff has alleged nothing remotely similar with respect to King. An employee who has been arrested for and convicted of assault on or near the workplace premises is not similarly situated to an employee who was not arrested or convicted for assault. See Williams v. Metro-North R.R., No. 17-CV-3092, 2020 WL 1489832, at *9 (S.D.N.Y. Mar. 27, 2020) (explaining that a “substantial difference between [the p]laintiff’s and [a coworker’s] disciplinary histories … undermines any attempt to use [the coworker] as a similarly situated comparator” (quotation marks omitted)); Whittle v. County of Sullivan, No. 16-CV-725, 2017 WL 5197154, at *7 (S.D.N.Y. Nov. 8, 2017) (rejecting comparator analysis where the plaintiff failed to plead, inter alia, how supposed comparators’ “disciplinary histories compared to his”); see also Jenkins v. N.Y.C. Transit Auth., 201 F. App’x 44, 46 (2d Cir. 2006) (dismissing a § 1981 claim because “no similarly situated white employee received more favorable treatment”); Colon v. Fashion Inst. of Tech., 983 F. Supp. 2d 277, 289 (S.D.N.Y. 2013) (explaining that a plaintiff’s “co-workers with whom she compares herself were not similarly situated, and therefore were not adequate comparators to show disparate treatment”). Accordingly, Walmart’s differential treatment of Plaintiff and King cannot sustain a claim for racial discrimination.
The court concluded that since plaintiff failed to allege that Walmart terminated him based on discriminatory intent, his § 1981 claim, based on his termination, must be dismissed.