Third Circuit Affirms Dismissal of Race Discrimination Claim

By Arooj Siraj, Esq.

The Third Circuit recently affirmed the dismissal of a wrongful termination claim in which an employee alleged that he was terminated by his former employer, UPS, because of his race (African-American) in violation of the New Jersey Law Against Discrimination (“NJLAD”).

In Langley v. United Parcel Serv., No. 21-2962 (3d Cir. Feb. 1, 2023), the plaintiff, Kendrick Langley (“Langley”) worked for UPS as an On Road Supervisor, a position subject to random drug testing due to its safety-sensitive nature. Employees were also subject to reasonable suspicion testing if management had reason to suspect that an employee’s behavior or appearance suggested drug or alcohol use.

Langley was selected for a random drug test, which he submitted on January 29, 2015. The test result returned positive for cocaine. Langley, however, asserted that he had never used cocaine.  He voluntarily took a polygraph test, which showed that Langley truthfully denied using cocaine.  He also was examined by his doctor, who concluded within a “reasonable degree of medical certainty,” that Langley had received a false positive. Nonetheless, on March 9, 2015, UPS met with Langley and offered him the chance to resign.  Langley declined and was terminated.

Post-termination, Langley participated in UPS’s Employee Dispute Resolution (“EDR”) process. During the EDR process, Langley was offered reinstatement to his former position in exchange for signing a Last Chance Agreement (“LCA”).  He refused to sign the LCA and subsequently filed a lawsuit, asserting a wrongful termination discrimination claim based on race in violation of the NJLAD. UPS moved for summary judgment, which the District Court of New Jersey granted because Langley did not meet his prima facie burden. Langley appealed.

On appeal, Langley argued that his direct supervisor was convicted of driving under the influence but was not subsequently subjected to reasonable suspicion drug testing or termination. However, the Court found the supervisor was not a good comparator because he had different job functions than Plaintiff.  Also, the supervisor’s transgression occurred off-premises and off-duty – under the UPS policy, he would only be subject to reasonable suspicion testing if he appeared to be under the influence while working

In addition, UPS identified other comparators, all of whom were Caucasian and were terminated following a positive test.  Unlike Plaintiff, one of the comparators signed the LCA and was reinstated.  Accordingly, the Third Circuit held that UPS successfully applied its drug testing policy in a race-neutral manner.

This decision highlights how crucial it is for businesses to uniformly implement their corporate policies, as it could play a determinative factor in validating or invalidating an inference of discrimination.  If an issue of a valid comparator is raised, then the job functions and hierarchy of a position should be thoroughly scrutinized to determine the degree of the similarities.


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