Appellate Division Rejects Limited Definition of Similarly Situated Employee in Disparate Treatment Claims under the New Jersey Law Against Discrimination

May 9, 2018

Ty Hyderally, Esq., and Francine Foner, Esq.

In a recent unpublished opinion the Appellate Division held that the jury should have been permitted to consider evidence that plaintiff, a gay, male store manager for Rite Aid, age 61, was treated differently than his store’s younger and heterosexual pharmacy manager. In this sexual orientation discrimination case brought under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1, et seq. (“LAD”). Rite Aid claimed it terminated plaintiff because he did not follow loss prevention procedures after his discovery of a shoplifting incident involving a store employee’s daughter. However, the evidence at trial showed that the pharmacy manager had similarly failed to follow company procedures after learning that a pharmacy employee had stolen medication and needles and showed up in a drugged state, yet had not been terminated. Hansen v. Rite Aid Corp., 2018 N.J. Super. Unpub. LEXIS 1032, *4-5.  Thus, Plaintiff claimed that from this disparate treatment, a jury could infer that the reason given for his termination was a pretext, and that the actual reason for his termination was because of his age and sexual orientation.

Defendants argued that plaintiff’s disparate treatment claim failed as a matter of law because he offered no evidence that he and the pharmacy manager were “similarly situated.”  The trial court agreed that the pharmacy manager was not an appropriate comparator for plaintiff because their respective jobs and conduct at issue were “very different” in that “under Rite Aid’s policies, plaintiff failed to take action when he learned about the shoplifting, while the pharmacist failed to ‘enact drug testing after [the employee] was found to be stealing, [or] after she came in looking somewhat under the influence . . . .’” Id. at *7. Therefore, the trial court held that the jury’s consideration of the evidence of disparate treatment was error, requiring a mistrial as to the sexual orientation claims.

On appeal, the Appellate Division held that the pharmacist was a proper comparator, that it was proper for the jury to consider the evidence of disparate treatment of plaintiff, and that the trial court had failed to properly instruct the jury as to how it should analyze the disparate evidence that plaintiff introduced at trial. The Appellate Division explained that just because a plaintiff and another employee may have different job responsibilities, report to different supervisors, or have not engaged in comparable misconduct, does not necessarily mean that the other employer is not “similarly situated.”  The Appellate Division observed that these factors are not an exhaustive list of what constitutes a “similarly situated” employee, but rather, the Court must perform a fact driven “sensitive appraisal” in each case to evaluate whether one employee may be compared to another for purposes of showing disparate treatment under the LAD.  Id. at *16.

Applying this analysis, the Appellate Division concluded that a review of the evidence reflected that plaintiff and the pharmacist were similarly situated.  As the Court opined “while it is true that the two were responsible for different areas of the same store, and the pharmacy’s theft involved an employee while plaintiff’s department did not, part of both of their responsibilities was to follow their employer’s procedures and policies relating to thefts occurring within their departments. Moreover, * * * both plaintiff and the pharmacist were responsible for compliance with all corporate policies. Plaintiff’s proofs established that each manager failed to comply with controlling policies relating to thefts, involving, in part, the same employee, but were treated differently. Under these circumstances, the question of whether plaintiff proved the two were similarly situated should have been left to the jury.” Id. at *19.  The Court thus concluded that plaintiff should be permitted to pursue a disparate treatment claim in response to Rite Aid’s explanation for plaintiff’s termination, and remanded the case for a new trial on this claim.

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