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.