Who Is A ‘Comparator’ For Discrimination Purposes?

Edward Voccola, who is Caucasian, sued the City of Bridgeport, Connecticut, for race discrimination after he was terminated from his job as a firefighter. Voccola’s troubles began on September 5, 2010, when the Shelton Police began investigating an incident involving Voccola. Voccola’s neighbors, who had ongoing problems with Voccola based on their belief that he had dumped motor oil on their property several years earlier, called the police because their video surveillance camera captured Voccola pouring an unidentified substance into their water filtration system. The police searched Voccola’s property where they found three gallon-sized containers of muriatic acid. The containers contained the following warning label: “DANGER (skull and crossbones symbol) POISON.”

After an investigation, the Ctiy found that Voccola violated Department rules by (1) engaging in activities that might interfere with the efficient discharge of one’s duties; (2) using obscene, profane, or disrespectful language; (3) resorting to unlawful violence; (4) conduct of a disorderly nature or neglect of duty which is prejudicial to the good order and discipline of the Fire Department; (5) failure to adhere to “Policies, Rules and Regulations, Chiefs orders, Directives, Operational Procedure Guidelines, and Form Directives of the Department/City”; (6) failure to comply with the Fire Chief’s orders; (7) indecent, inappropriate, or immoral conduct; and (8) unethical conduct. Voccola’s termination resulted.

In his lawsuit, Voccola sought to compare himself to Harold Clark, Joel Christy, Ronald Reed, Allen Jones, and Phillip Rosa, all of whom are either African-American or Hispanic:

• Harold Clark was found guilty of driving with a suspended license in 2012. He received a 30-day suspension without pay. In 2010, he was issued a verbal warning for not responding to a Hazardous Material Spill. In that same year, he received a verbal warning for insubordination. In 2008, he received a verbal warning for submitting an incomplete form. Twice in 2007 and once in 2005, he was counseled regarding his unexcused absences. In 2002, he tested positive for cocaine and was not punished.

• Joel Christy was found guilty in 2013 of spreading “Rumors & Malicious Gossip” and behavior that disrupts the work environment based on his unfounded complaints of harassment and a hostile work environment. He was issued a verbal warning. In 2008, Christy was found guilty of being disrespectful to a superior officer. Christy was suspended for one day without pay. In 1997, he was found guilty of unlawful violence based on an incident where Christy told his supervisor, “We’ll settle this outside” and “I’m going to punch you in the face!” and repeatedly struck his supervisor in the chest. He received a 30-day suspension without pay.

• Ronald Reed pleaded guilty in state court to misdemeanor reckless endangerment and misdemeanor criminal mischief, but there were no allegations of violence. He received a non-disciplinary counseling memorandum.

• Allen Jones was arrested for violating a restraining order involving his niece, but there were no reports of violence. Jones received a written warning for violating two rules regarding (1) using obscene, profane, or disrespectful language and (2) conduct of a disorderly nature or neglect of duty which is prejudicial to the good order and discipline of the Fire Department.

• Phillip Rosa was convicted in state court of operating under the influence of liquor or drugs. He was terminated. He was not charged with any internal policy respecting unlawful violence. Rosa also had previous arrests, but the Fire Department did not know about those arrests or underlying conduct.

The Court found all of Voccola’s proposed comparators to fail the test for inferring discrimination and dismissed his discrimination lawsuit: “Summary judgment is appropriate here because none of the suggested comparators engaged in conduct that a reasonable person could consider as serious as attempting to poison an elderly person. And the reason is simple: with one exception, the comparators’ conduct was not intentionally violent. Visible intoxication, driving without a license, failure to fill out a form completely, testing positive for illicit substances, unexcused absences, insubordination, failure to respond, spreading rumors and gossip, reckless endangerment, and driving under the influence are not acts of violence done with the intent to cause physical harm to another person.

“The only person alleged to have engaged in intentionally violent conduct is Christy, but his conduct is much less serious. Christy’s conduct involves a heat-of-the-moment spat with a coworker. Christy told his supervisor, ‘We’ll settle this outside’ and ‘I’m going to punch you in the face!’ and repeatedly struck his supervisor in the chest. This conduct is categorically different from Voccola’s attempted assault of an elderly person during which Voccola introduced muriatic acid into the water supply.”

Voccola v. Rooney, 2015 WL 5595443 (D. Conn. 2015).