Third Circuit Reaffirms That Conclusory Comparator Lists and Attenuated Timing Do Not Plausibly Plead Discrimination or Retaliation in Failure-to-Promote/Termination Claims

Introduction

In Solomon Jones v. Educational Testing Service (3d Cir. Sept. 8, 2026) (not precedential), pro se appellant Solomon A. Jones appealed the District of New Jersey’s dismissal with prejudice of his Second Amended Complaint against his former employer, Educational Testing Service (“ETS”). Jones alleged that ETS’s pay practices, failure to promote him from “Rater” to “Scoring Leader” (“SL”), and his November 2021 termination were discriminatory and retaliatory, invoking a wide array of federal and state statutes (including 42 U.S.C. § 1981, Titles VI and VII, FLSA, ADEA, the Age Discrimination Act of 1975, NJCEPA, and NJLAD), plus an unrelated constitutional challenge to 18 U.S.C. § 3006A.

The central issues on appeal were pleading sufficiency under Rule 12(b)(6), exhaustion of administrative remedies for certain employment-discrimination statutes, causation for retaliation-based theories, and whether further amendment would be futile.

Summary of the Opinion

The Third Circuit affirmed the dismissal with prejudice. It agreed with the District Court that:

  • Jones’s § 1981 and Title VI claims did not plead facts supporting even an inference of discrimination.
  • His FLSA and NJLAD retaliation theories failed to allege facts supporting a causal link between March 2021 promotion inquiries and a November 2021 termination.
  • His NJCEPA claim did not allege whistleblowing activity.
  • His Title VII, ADEA, and Age Discrimination Act of 1975 claims had previously been dismissed with prejudice for failure to exhaust administrative remedies.
  • He lacked standing to litigate an unrelated claim challenging 18 U.S.C. § 3006A.
  • Further amendment would be futile.

The court also rejected the argument that the District Court ignored facts or applied a heightened pleading standard, and it denied Jones’s request for judicial notice because it was immaterial to the disposition.

Analysis

Precedents Cited

Xi v. Haugen

The panel quoted Xi v. Haugen, 68 F.4th 824, 832 (3d Cir. 2023), for the motion-to-dismiss baseline: at the Rule 12(b)(6) stage, courts accept well-pleaded factual allegations as true and view them in the plaintiff’s favor. This citation framed the court’s approach as procedural rather than merits-based: even crediting Jones’s facts, the pleadings did not rise to a legally sufficient inference of discrimination/retaliation.

Talley v. Wetzel

Citing Talley v. Wetzel, 15 F.4th 275, 286 n.7 (3d Cir. 2021), the court reiterated that its review of a dismissal is plenary. This emphasized that the affirmance rested on an independent appellate assessment of pleading sufficiency, not deference to the District Court’s judgment calls.

D'Annunzio v. Prudential Ins. Co. of Am.

For NJCEPA’s scope, the court quoted D'Annunzio v. Prudential Ins. Co. of Am., 927 A.2d 113, 114 (N.J. 2007): NJCEPA protects employees who “blow the whistle” on employer conduct that is illegal/fraudulent/improper and implicates public health, safety, or welfare. The citation supported dismissal because Jones did not allege the predicate protected activity—i.e., reporting or objecting to such conduct—necessary to trigger NJCEPA protections.

Castleberry v. STI Grp.

The panel relied on Castleberry v. STI Grp., 863 F.3d 259, 267 (3d Cir. 2017), for the proposition that a retaliation claim under § 1981 requires a causal link; thus, the same causation gap that defeated Jones’s FLSA/NJLAD retaliation theories would “doom” a § 1981 retaliation theory as well. Importantly, this allowed the panel to treat any debate about how the District Court characterized the § 1981 claim (discrimination-only vs. including retaliation) as non-prejudicial given the causation deficiency.

Legal Reasoning

1) Failure-to-promote discrimination: why the comparator list was not enough

A key factual feature was Jones’s list of 45 redacted names of alleged non-African-American and/or non-African-American males who held SL positions. The District Court (and the Third Circuit in agreement) treated that list as inadequate because the complaint did not connect those individuals to the relevant decision point: Jones did not plausibly allege that they were promoted to SL “over” him in a comparable timeframe or circumstance. The District Court further observed that the list appeared to include people promoted long before Jones’s 2021 inquiry, people demoted, and people hired directly into SL roles—categories that do not support an inference that ETS intentionally denied Jones promotion based on protected status.

The reasoning illustrates a pleading principle in employment discrimination cases: merely naming purported comparators (especially with redactions and without concrete, decision-linked facts) does not plausibly allege discriminatory intent.

2) Retaliation causation: temporal and factual linkage

Jones tied retaliation to his March 2021 emails asking about SL criteria and why he never saw SL postings. The courts found the pleadings did not support a causal link between those inquiries and the November 2021 termination. The Third Circuit’s discussion—reinforced by Castleberry v. STI Grp.—signals that retaliation theories must allege facts making retaliatory motive plausible (not just a sequence of events).

3) Exhaustion: Title VII, ADEA, and the Age Discrimination Act of 1975

The Third Circuit noted the District Court had already dismissed Title VII, ADEA, and Age Discrimination Act of 1975 claims with prejudice for failure to exhaust administrative remedies. Although the panel did not re-litigate that determination in detail, it treated exhaustion as a dispositive gatekeeping rule: absent required administrative steps, the claims cannot proceed in court.

4) NJCEPA: no pleaded whistleblowing activity

Applying NJCEPA’s core requirement (as described via D'Annunzio v. Prudential Ins. Co. of Am.), the courts found Jones did not allege that he reported or objected to employer conduct of the type NJCEPA targets. Asking about promotion criteria is not, without more, whistleblowing.

5) Standing and claim relatedness: 18 U.S.C. § 3006A

The panel agreed Jones lacked standing to press an “unrelated” constitutional challenge to 18 U.S.C. § 3006A (concerning public defense funding/conflicts). The dismissal reflects two constraints: (i) federal courts require a plaintiff to show a personal, concrete stake in the challenged conduct; and (ii) a complaint’s unrelated claims cannot be used to bootstrap jurisdiction and relevance in an employment dispute.

6) Harmless error: 28 U.S.C. § 2111

Jones argued the District Court mischaracterized his § 1981 theory. The Third Circuit invoked 28 U.S.C. § 2111 to explain that even if there were an error, it did not affect his substantial rights because the causation deficiency independently defeated any retaliation framing.

7) Futility and dismissal with prejudice

The District Court’s futility finding—accepted by the panel—reflects that Jones had already amended multiple times and still failed to plead essential elements (intent/circumstance for discrimination; causal link for retaliation; protected activity for NJCEPA; exhaustion for certain federal statutes). The appellate affirmance indicates that repeated inability to cure foundational defects can justify ending the case rather than inviting another amendment.

Impact

Although expressly “NOT PRECEDENTIAL,” the decision is a practical roadmap for how courts in the Third Circuit scrutinize employment pleadings at the Rule 12(b)(6) stage—especially when plaintiffs rely on (i) generalized claims of unfairness, (ii) comparator lists lacking decision-specific detail, or (iii) retaliation theories asserted without facts making causation plausible.

The opinion also underscores that pro se status does not eliminate core pleading burdens: courts accept facts as true, but they do not supply missing elements such as comparator similarity, retaliatory nexus, exhaustion, or whistleblowing activity.

Complex Concepts Simplified

  • Rule 12(b)(6) dismissal: the court assumes the pleaded facts are true and asks whether they add up to a legally viable claim; it does not decide who “really” wins.
  • “Inference of discrimination”: enough concrete facts (who, when, what decision, similarly situated comparators, etc.) to make discriminatory intent a plausible explanation.
  • Comparator evidence (at pleading): naming others is not enough; the complaint must plausibly show they were similarly situated and treated better in the relevant decision context.
  • Causal link (retaliation): facts suggesting the protected activity led to the adverse action (timing can help, but often needs more context).
  • Exhaustion of administrative remedies: certain statutes require filing with an agency (typically the EEOC or a state equivalent) before suing; skipping that step can bar the claim.
  • Standing: the plaintiff must be personally and concretely affected by the challenged conduct; courts do not decide abstract disputes.
  • Dismissal “with prejudice”: the case is over in that court; the plaintiff cannot file another amended complaint in the same action.
  • Harmless error (28 U.S.C. § 2111): appellate courts do not reverse for mistakes that did not change the outcome.

Conclusion

The Third Circuit’s disposition affirms a set of disciplined pleading requirements in employment litigation: discrimination claims must be anchored in decision-specific, comparator-relevant facts supporting an inference of intent; retaliation claims must plausibly allege causation; NJCEPA claims must allege whistleblowing activity; and Title VII/ADEA-type regimes require administrative exhaustion. Even in a pro se case, repeated amendments that fail to supply these essentials can justify dismissal with prejudice, and appellate review will not disturb the judgment absent a substantial-rights impact.