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Pretext Part 4: Treating Some Employees Differently Than Others

Pretext Part 4: Treating Some Employees Differently Than Others

In our previous pretext posts The Real Reason For An Adverse Action, Shifting Explanations and Unbelievable Stories,and Irregular Process and Agency Reasons That Don't Add Up we talked about pretext and outlined some common types of evidence a federal employee attorney can use to show an agency’s stated reason for an adverse action are a pretext. Today, we will examine an example of a federal employee saving his job by pointing out that his agency had treated another employee differently two years before.

A comparison with other employees who received different treatment is probably the most common way federal employees prove their agency’s explanation for discrimination against them was a pretext. The argument is intuitive, but proving it under the law is not. Courts are picky about what other employees they view as a legitimate comparison – “similarly situated” in legal terms – and it is often necessary for an attorney to cite previous court decisions to show why a comparison is legitimate.

In most (but not all) cases, federal employees can only compare their situation to other employees if the relevant aspects of their work situation are “identical or nearly identical.” Steven W. Tettleton v. Government Printing Office, Petition No. 03A00080. To determine that, courts will look at factors like whether the employees report to the same supervisor, were subject to the same disciplinary standards, and acted in the same way as one another without mitigating circumstances.

It’s a tough standard, but there is a lot of room for argument within it. For example, the EEOC has sometimes agreed that employees are similarly situated even though they work for a different supervisor if a central office, rather than the supervisor, is the one really making employment decisions.

An attorney can help a federal employee make the best case possible by citing past similar decisions and pointing out exactly why a client’s comparison is a legally valid one. In some cases, an administrative judge, the EEOC or MSPB may be convinced to take a looser view of the standards.

For example, in a 1994 Merit Systems Protection Board case, Creer vs. the U.S. Postal Service, the Postal Service fired a Letter Carrier for failing to report an “at-fault vehicle accident,” as well as for his prior disciplinary record. He appealed the decision to the Merit Systems Protection Board, alleging that the Postal Service had discriminated against him on the basis of his sex.

The Letter Carrier compared himself to a female employee whose removal had been proposed for failure to report an accident, going AWOL, and failure to follow instructions. She also had a significant disciplinary record including multiple suspensions as well as three vehicle accidents and an industrial accident.

Both the Letter Carrier and the female employee had the same proposing and deciding disciplinary officials, their cases were just two years apart, and, while the MSBP did not explicitly outline her position, both appear to have had substantially the same duties. While the Letter Carrier was ultimately fired however, the female employee was allowed to obtain a position in another post office before her removal.

The MSPB found that the comparison between the two employees was valid, and sufficient to show sex discrimination against the Letter Carrier. It reinstated him, and awarded back pay.

There are two main takeaways from this case.

First, both employees were in quite similar situations. They performed the same tasks and had committed similar infractions within just two years. If the female employee had been fired for something other than failing to report an accident, for example, the Letter Carrier may not have been successful.

Second, the MSPB stretched the requirement for having the same supervisor, and actually overturned an earlier Administrative Judge’s determination that the Postal Service’s action against the Letter Carrier did not amount to discrimination. (Note: the MSPB routinely uses a broader comparison standard when determining the proper severity of discipline, but uses the same narrow standard as the EEOC when determining whether or not discrimination occurred.)

The Postal Service argued that both employees were treated similarly because the proposing and deciding officers acted the same way in both cases – they approved the firing of both employees. It was a different official at a different post office who hired the female employee before her ultimate termination. Therefore, under the Postal Service’s reasoning, which the Administrative Judge accepted, the action should not be considered discrimination because the actual difference in treatment was the result of the action of an entirely different official with no relationship to the Letter Carrier.

The MSPB disagreed however, and in doing so, showed a willingness to stretch the general rule that the two employees being compared had to have been disciplined by the same supervisor or authority. The MSPB did not explicitly discuss stretching that standard, but they did so all the same, showing how important it is to have a good attorney advocating for you in a discrimination case.