Direct, qualification, and comparator evidence, oh my! In a recent decision, the Fourth Circuit recounted the ways in which a former utility distribution serviceman failed to prove discrimination in violation of Title VII and Section 1981. Matias v. Elon University, No. 18-2507 (4th Cir. 7/22/19) (unpublished).
Matias, who is Mexican, worked for Elon University from 1999 to 2016. After being promoted to utility distribution serviceman in 2005, Matias asked his supervisor, Worden, whether he would receive a raise. The supervisor allegedly responded, “You don’t know how to do the job. How can I give you a raise? The only thing you know how to do is make tacos.”
In 2014, when a different supervisor retired, Worden told some people about the job opening but neglected to inform Matias. When Matias later found out that Elon had already hired someone else and expressed interest in the position, Worden responded, “You guys, Mexicans, you want everything. You just want money.”
In 2016, Worden heard that Matias had tried to kiss a coworker at work and reported the incident to HR. When HR confirmed this allegation during its investigation of the incident, Matias was terminated for creating a hostile work environment.
Matias claimed that his non-promotion and termination violated both Title VII and Section 1981, citing bias against his Mexican heritage as the motivation for the employment decisions at issue.
As for Matias’s direct evidence, the court found that Worden’s statements (the “taco comment” and the “money comment” specifically) were insufficient to prove his claims. The court reasoned that because the “taco comment” occurred in 2005, and the failure to promote occurred in 2014, the comment was far too remote to evidence discrimination. The court also found that the “money comment,” although “objectionable” and much closer in time to the failure to promote, was merely an isolated statement that did not amount to direct evidence of discrimination.
Turning to Matias’s additional evidence, the court had no problem rejecting this as well. First, Matias claimed that he was more qualified than the individual hired for the supervisor position because he (Matias) had more experience maintaining custodial equipment and supervising others. The court disagreed that this was evidence of pretext, finding that Matias only proved that his qualifications were, at most, “similar or slightly superior” — and not “demonstrably superior” to the individual hired.
Next, Matias argued that he was treated differently from a similarly situated individual outside of his protected class to show that the reason he was terminated was pretext for discrimination. The purported comparator Matias identified was a coworker who had been at the center of several investigations into sexual misconduct at work. The court disposed of this evidence because, unlike Matias, HR had never confirmed the misconduct allegations against the alleged comparator, and the alleged comparator had not forced himself on a coworker.
Although Elon ultimately escaped liability, the Matias case is another reminder to employers that both racist language and inappropriate sexual advances should stay out of the workplace, and employers are well served to adopt and enforce policies against such conduct.