Thursday, September 5, 2019

Third Circuit re-affirms that comparator evidence is not necessary to establish a prima facie case of discrimination

Last week, the Third Circuit issued a nonprecedential opinion in Feng v. Univ. of Delaware. The Court reversed a trial court's decision to grant summary judgment on Feng's Title VI national origin discrimination claim. Feng alleged that he was doing well at school, until the University forced him to enroll in a heavier courseload to maintain his immigration status.

The trial court granted summary judgment because Feng failed to proffer any similarly situated comparators to support his discrimination claim. Such evidence is not necessarily required though - plaintiffs may also establish a prima facie case of disparate treatment discrimination by otherwise showing an inference of discrimination, or providing direct evidence of discrimination.
Not official use.
“Although comparative evidence is often highly probative of discrimination, it is not an essential element of a plaintiff’s case.” Anderson v. Wachovia Mortg. Corp., 621 F.3d 261, 268–69 (3d Cir. 2010) (citing Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 353 (3d Cir. 1999)).
The Court noted a factual issue regarding the source of the requirement that Feng take a heavier courseload. It was not clear whether federal law actually required it, or rather left the definition of the required "full course of study" to the discretion of the university. "Rather than attempting to disentangle the facts," the Third Circuit remanded to the district court.

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