A recent decision by the Third Circuit Court of Appeals helps clarify who is a “similarly situated” employee in discrimination cases under the New Jersey Law Against Discrimination (“LAD”). This is important since one way to prove discrimination is by showing the employer treated other similarly situated employees more favorably than the employee who is claiming he or she was the victim of discrimination.
Santos Andujar worked for General Nutrition Corporation (“GNC”) as a store manager for 13 years. After failing the company’s Critical Point Audits four years in a row, he received a failing score through the company’s Performance Evaluation Process (“PEP”). On the day Mr. Andujar received his failing PEP score, GNC placed him on a “Red Store Action Plan” which gave him days to improve his job performance. Approximately one month later, the company fired him for failing to meet the Action Plan. GNC replaced Mr. Andujar, who was 57 years old, with someone in his twenties. Mr. Andujar then filed a lawsuit alleging that GNC had engaged in age discrimination in violation of the LAD.
The case went to trial. GNC argued that it fired Mr. Andujar because of his poor performance and not because of his age. However, Mr. Andujar presented evidence that five other store managers between 25 and 34 years old had failing PEP score, but GNC did not put any of them on an Action Plan, let alone fire them.