Title VII case is dismissed because co-workers are not similarly-situated

By Bergstein & Ullrich, LLP
Nov 26, 2008

One way to prove discrimination under the employment discrimination laws is to show that you were disciplined for something and someone else at work got away with it. If that someone else is outside the protected class (race, gender, religion, age), you may have a case. But this is a tough way to win.

The case is Billue v. Praxair, Inc., decided on November 20 by summary order. The general rule in this area is set forth in Graham v. Long Island Railroad, 230 F.3d 34 (2d Cir. 2000), which holds that you can claim discrimination if similarly-situated co-workers were not comparably disciplined. The plaintiff, a truck driver, pointed to a co-worker who left his truck unattended for five minutes, leaving the rear trailer door locked, within 100 yards of the employer's property. That guy was not disciplined as plaintiff was, even though plaintiff is black and the co-worker is white.

But these co-workers do not have comparable cases. According to the Court of Appeals, the plaintiff abandoned his truck for 20 minutes while he went shopping. He also "urinated in a public parking lot along a highway." So while both workers were derelict in their duties and probably violated company rules, the plaintiff's actions were materially worse than those of his co-workers. He cannot compare himself to the white co-worker, and for that reason his discrimination case was dismissed.