Legal Memorandum: Relevance of Evidence in an ADA Action

Issue: Is a company’s failure to follow a zero-tolerance policy relevant to an ADA action?

In the usual case, the plaintiff may use evidence that other employees received more favorable treatment to establish a pretext for unlawful discrimination.  For example, in Pivirotto v. Innovated Sys., Inc., 191 F.3d 344 (3d Cir. 1999), the plaintiff in a gender-discrimination case alleged that a male employee was treated better.  The appellate court concluded that the contention of better treatment could not help establish a pretext because the male employee was not similarly situated:  he did not hold the same job as the plaintiff, and the two employees had very different responsibilities.  Id. at 359.  To determine whether other employees are similarly situated, the court focuses “on the particular criteria or qualifications identified by the employer as the reason for the adverse action.”  Id.  The plaintiff was fired because she had a tendency to blame others for problems in the sales department; she did not present evidence that the male employee, an attorney, exhibited a similar tendency to blame others.  Id.

A more detailed analysis of the similarly situated employee issue is provided in Graham v. Long Island R.R., 230 F.3d 34 (2d Cir. 2000).  The Graham court relied on an earlier Second Circuit decision that adopted the Sixth Circuit’s standard for deciding whether employees are similarly situated.  It explained that whether employees are similarly situated is usually a jury question.  Id. at 34.  The plaintiff must show that the plaintiff and the other employees were similar in all material respects, such as being […]