Reverse gender discrimination case under Title VII is dismissed

This plaintiff alleges he was fired from his position on the basis of his gender. The case is dismissed because the record shows he was really fired for setting up a fake bank account in his brother's name. Plaintiff tries to argue he was singled out for disparate treatment, but the Court of Appeals finds his "comparators" are not really comparators.

The case is Carter v. TD Bank, NA, a summary order issued on June 4. It all started when plaintiff's brother visited a TD Bank branch in Florida and told the staff that several accounts had been opened in his name without his knowledge or authorization. An investigation followed. The bank determined that plaintiff had opened up the accounts as a scam. The investigator determined that plaintiff's defense was not plausible - plaintiff said his brother must have forgotten that he had opened the accounts only five days earlier. The investigator also thought that plaintiff had forged his brother's name on the new account documents. 

If setting up a false bank account is not grounds for termination, then I don't know what is. But plaintiff said the real reason was gender discrimination because two women were not fired despite engaging in fraudulent activity. One comparator was negligent in failing to detect fraudulent paperwork submitted by a customer. The other woman was found to have committed an act of dishonesty that, according to plaintiff, should have resulted in his termination. 

Are these legitimate comparators? The Court of Appeals' leading case on this issue is Graham v. Long Island Railroad, 230 F.3d 34 (2d Cir. 2000), which says the comparators must be "similarly situated," or subject to the same workplace standards as the plaintiff. The comparators must also have engaged in comparable conduct.

Not this case, the Court of Appeals (Jacobs, Sack and Sullivan) holds. The first comparator was only negligent in her misconduct. She did not engage in intentional fraud. The other comparator was not subject to the same workplaces standards as plaintiff. The Court finds that no reasonable jury could find these two women were comparable to plaintiff. Without additional evidence of gender discrimination, the case is dismissed.