Employment law practitioners are keenly aware of the McDonnell Douglas burden-shifting analysis in single plaintiff disparate treatment cases. Under the analysis, plaintiff must demonstrate (1) status as a member of a protected class, (2) an adverse employment action and (3) a similarly situated person outside the protected class who was treated differently. In a recent decision, Hansen v. Rite Aid, No. A-4750-16T4 (N. J. Super. Ct. App. Div., May 2, 2018), the New Jersey Court of Appeals provided a reminder that it is plaintiff’s burden to prove the alleged comparators are indeed similarly situated.

The Court explained that while there is “‘no bright-line rule’ for determining who is a ‘similarly situated’ employee,” courts tend to consider “whether the plaintiff and the comparator has similar job responsibilities, were subject to the same standards, worked for the same supervisors, and engaged in comparable misconduct.” And, at trial, the jury must be instructed how to consider whether plaintiff has met his or her burden.

In Hansen, plaintiff, a 61 year-old gay man who was terminated from his job as a pharmacy manager, alleged he was treated differently than his store’s younger and heterosexual pharmacy manager with regard to a shoplifting incident. The Court determined that plaintiff’s alleged comparator was sufficiently similar to send the issue to the jury and remanded the case for trial. While acknowledging the two managers were responsible for different areas of the store, and the theft involved an employee in one instance and the daughter of that same employee in the other, the Court focused on evidence that both managers were required to follow a common set of rules and procedures. Further while each had their own supervisor, both were investigated by the same loss prevention manager. The existence of a common policy was sufficient for the Court to return the matter to the trial court for plaintiff to pursue a disparate treatment claim.

Employers defending against disparate treatment claims would be well served to focus attention on plaintiff’s failure to prove the alleged comparators were similarly situated. Plaintiff’s failure of proof may keep the case from going to trial the first time.