BFV Perspectives, Navigating HR, | Jun 28, 2023

Courts Reject Age and Race Discrimination Claims for Lack of Valid Comparator

In Evans v. Birmingham Hide & Tallow Company, Inc., the Court affirmed judgment in favor of the employer. The Court stated the employee failed to identify a valid comparator who was treated more favorably. Thus, the employee failed to present sufficient evidence to infer that his race or age motivated his termination.

Nature of discrimination claims

The plaintiff, Edgar Evans, is an older African American man. He was terminated as a grease truck driver after he backed his truck into a vehicle on customer property. Evans alleged that he was terminated because of his age (65) and race.  Specifically, Evans alleged that he was subjected to ageist comments by his supervisor. According to Evans, the supervisor called him an “old man” and repeatedly asked him when he planned to retire.  Evans also alleged that a white truck driver was involved in more accidents but was not fired.

The Court agreed that the lower court had properly granted summary judgment. It found the evidence did not support a reasonable inference that his termination had been motivated by his age or race.

Employee failed to identify a valid comparator 

The crux of the Court’s decision  was that Evans could not establish a prima facie case of discrimination because he could not identify a comparator treated more favorably.

A valid comparator is someone who:

  • Engaged in the same basic conduct as the plaintiff;
  • Was subject to the same employment policies and decisionmaker; and
  • Shared the plaintiff’s employment or disciplinary history.

Evans was fired for having too many accidents.  The supervisor applied a disciplinary framework under which an accident was:

“chargeable and subject to discipline if the accident caused personal injury or damage to a third-party’s property and the driver was at fault.”  Over his eight-year tenure, Evans had a total of five chargeable accidents.

Evans alleged that a white truck driver had more accidents but was not fired. However, evidence showed that Evans had more “chargeable” accidents than the white driver, who only had one chargeable accident.  The other accidents were on the employer’s property, did not involve driver error, or involved spills from trucks (which were not deemed chargeable under the supervisor’s framework).   Thus, Evans and the other driver did not engage in the same conduct and were improper comparators.


At the heart of every discrimination claim is the plaintiff’s belief that they were singled out and treated differently.  However, to prove a discrimination claim, the plaintiff must show that the person treated more favorably was a proper comparator.  Employers accused of discrimination or who receive an EEOC Charge of Discrimination should carefully analyze whether the alleged comparator is similar.

As always, please let us know if we can help.

BFV Perspectives, Navigating HR, | Jun 28, 2023
Kenneth N. Winkler
Kenneth N. Winkler

Kenneth Winklera shareholder at Berman Fink Van Horn, helps employers navigate the employment laws and regulations that govern the workplace.