On January 9, the Merit Systems Protection Board found that an employee was discriminated against on the basis of her sex when she was terminated for alleged offenses for which similarly situated men received less harsh discipline through settlement agreements. Spahn v. Dept. of Justice, MSPB Docket No. SF-0752-99-0454-I-1 (January 9, 2003). In Spahn, the employee and seven male employees received proposed removals from the same management official. The agency entered into settlement agreements with all of the men who had not resigned after receiving the proposed removals. In these settlements, all the men received 14-day suspensions and last chance agreements. Spahn was removed and filed an appeal to the MSPB. During the pendency of her appeal, Spahn made two settlement offers. First she offered a settlement on the same terms as the men. Spahn’s second offer was to resign in exchange for a clean record. Both offers were rejected by the agency.
On appeal, Spahn argued that she was discriminated against due to her sex when she was removed but the men only received suspensions. The agency argued that her misconduct was more serious than the conduct of the men. The Board reversed the administrative judge’s finding that Spahn failed to establish a prima facie case of sex discrimination. Specifically, the Board held that Spahn was “similarly situated” to the men even though the actual charges against her were labeled differently than the charges lodged against the men.
The Board held that the similarity of the comparator employees’ conduct is controlling, not the charges the agency chose to bring against the employee. The Board also ruled that the fact disciplinary actions against similarly situated men were reduced by a settlement does not preclude her from proving she was discriminated against due to her gender. Finally, the Board determined that together with her prima facie case, the fact that her conduct was not more serious than the conduct of the men and the agency’s “adamant refusal” to consider mitigating the penalty against the only woman involved demonstrated that the agency discriminated against Spahn in terminating her employment. The Board ordered, among other things, the agency to cancel Ms. Spahn’s removal and substitute a penalty no greater than a 14-day suspension.
** This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com. **
