Close, But Not Quite the Same: Is This What “Similarly Situated” Means?

By Eric B. Meyer

Maybe it’s the luck of the draw, but most of the discrimination cases I defend are hostile work environment cases, where an alleged harasser supposedly has made an employee-victim’s life miserable with certain comments, jokes, gestures, touchings, you name it.

Far less often do I encounter disparate-treatment claims. A disparate-treatment claim is one where an employee claims that another similarly-situated employee in another class was treated more favorably because of his/her protected class. For example, a female employee claims that similarly-situated male employees are paid more because they are men.

Sounds like the facts of a recent case decided right in my backyard in the Eastern District of Pennsylvania. This case provides a great opportunity to go back to school on what it means to be similarly-situated.

Close, but not quite the same

What does it mean to be similarly situated? According to the decision in Frinter v. TruePosition, it’s a close, but not quite the same. “While `similarly situated’ does not mean identically situated, the plaintiff must nevertheless be similar in all relevant respects.”

In Frinter, the plaintiff, a technical writer, alleged that she was similarly situated to four managers. The Court disagreed, by keying in on the specific requirements of each position:

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Ms. Frinter also offers as comparators James Amos and Tony Monico. Messrs. Amos and Monico are both engineers and managers who worked in product testing at TruePosition. Taking a broad view, their jobs bear some similarity to Ms. Frintner’s, in that they managed projects, allocated resources, represented their departments in interdepartmental meetings, and interviewed candidates for employment within their departments. However, such a broad view ignores the very real day-to-day differences in job requirements and duties. Both men, for example, have engineering training and use it in performing their jobs, manage the testing of products, interact directly with customers, and perform tasks such as coding that involve technical knowledge beyond that used or required of technical writers.

Similarly, Mitchell Perilstein, Manager of Sustaining Engineering, performs general managerial duties, but also has a degree in engineering and has involvement in software development, debugging systems, interacting with customers, and using various coding languages. James Chan, a Principal of Engineering Systems, in addition to collaborating with other departments, supervising and training others, and overseeing the work product of others, has advanced engineering degrees, uses that engineering knowledge in his work, and has responsibility for designing and evaluating products.”

Looks the same … but quite different

Managers aside, Frinter’s argument that she was similarly situated to another male co-worker who worked on the same project as she did also failed because their project tasks were different:

Ms. Frintner asserts that she and Mr. Owen were “co-project leads” on the content management system and had “equal responsibilities for that project.” … Ms. Frintner’s assertion that she and Mr. Owen were doing essentially the same thing is not backed by the evidence — although they both had responsibility for the same project’s ultimate outcome, the tasks they each performed pursuant to that responsibility differed substantially. Ms. Frintner’s citation to the job description for an Information Architect and her assertion that she was already performing the tasks described therein similarly makes no difference here, where the real tasks the two were performing are distinguishable.

Under the litigation microscope, those who share the same title or job responsibilities, generally, may be quite different. Indeed, this case provides great fodder for defense counsel to pick apart a plaintiff at deposition and draw out distinctions between the plaintiff’s position and those of other managers and co-workers.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (, which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.


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