Non-Probationary Employee Not Proper Comparator For Probationary Employee, Third Circuit Holds

In Mercado v. Donahoe, No. 11-2972, 2012 U.S. App. LEXIS 13226, (3rd Cir. June 26, 2012), the plaintiff, a probationary part-time employee, sued his employer alleging that he had been discriminated against on the basis of his gender (male) and national origin (Hispanic). In support of his claims, the plaintiff pointed to the employer’s allegedly more favorable treatment of a white, female, non-probationary employee. Affirming the district court’s order granting summary judgment to the employer, the Third Circuit Court of Appeals held that the employee identified by the plaintiff was not a proper comparator and was not similarly situated to the plaintiff because, among other reasons, she had completed her probationary period and was no longer a probationary employee at the time that the plaintiff was hired.

Note: This article was published in the August 2012 issue of the New Jersey eAuthority.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Ogletree, Deakins, Nash, Smoak & Stewart, P.C. | Attorney Advertising

Written by:


Ogletree, Deakins, Nash, Smoak & Stewart, P.C. on:

Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:

Sign up to create your digest using LinkedIn*

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.