Your employer says you did something wrong and fires you. You think that another co-worker did something similar, but they’re not fired. Is that unlawful discrimination? It might be. In one case, Redfern-Wallace v. Buffalo News, No. 16-3007-CV, 2017 WL 1479285 (2d Cir. Apr. 25, 2017) (Summary Order), it wasn’t.
Generally, in order for a comparison between two employees to be relevant in a discrimination analysis, they must be “similarly situated in all material respects.”
In Redfern-Wallace, the Second Circuit discussed this principle in affirming a grant of summary judgment to defendants on plaintiff’s claims of race discrimination, retaliation, and hostile work environment under Title VII.
[Plaintiff] argues that she was similarly situated in all material respects to her co-worker, Karen Greiner, who was neither disciplined nor terminated. Redfern-Wallace, however, admitted to Buffalo News that she had sent inappropriate text messages to Greiner, and failed to provide any evidence to Buffalo News or the Court to corroborate her allegation that Greiner had sent her inappropriate text messages in the same exchange. Redfern-Wallace has thus failed to show that she and Greiner were “similarly situated in all material respects” because she did not demonstrate that they both “engaged in” “conduct of comparable seriousness.” Raspardo v. Carlone, 770 F.3d 97, 126 (2d Cir. 2014) (internal quotation marks omitted). Redfern-Wallace further argues that her conduct occurred outside of work and therefore did not violate any of Buffalo News’s rules or policies. Buffalo News’s harassment policy, however, was not limited to conduct occurring at work but covered conduct outside of work that affected the workplace.