January 02, 2013
A recent EEOC decision found that, when combined with sexist statements, a supervisor's showing of favoritism toward employees of one gender can be enough to establish sex discrimination. In Balderas v. Dept. of Justice, EEOC Appeal No. 0120110222 (September 28, 2012), a contract aviation security officer alleged that her female supervisor subjected her to discrimination based on her gender and national origin and reprisal for opposing such discrimination. Among the agency actions the officer labeled as discriminatory was her denial of out-of-country assignments and her termination.
The Commission rejected the officer's claim that denying her out-of-country assignments was based on her national origin because she did not present any evidence that others of a different national origin enjoyed more favorable treatment. The Commission also denied the officer's claim that reprisal was the motivating factor in her being refused out-of-country assignments, since she failed to show that the supervisor responsible for scheduling such assignments knew about her protected activity opposing alleged discrimination at the time of the denials.
However, as to the officer's claim that her gender was the reason her supervisor denied her out-of-country assignments, the Commission concluded this was in fact the case. It wrote that the supervisor expressed her dislike of females directly to the officer and stated on one occasion that the agency should not hire any more females and that females should not be allowed to work on airplanes. Another witness stated that the supervisor did not like females and took those who were not popular with her off of out-of-country assignments, replacing them with male friends. The Commission concluded that in context, this was gender discrimination.
With regard to the officer's termination, the agency argued that the officer was not actually terminated since she was a contract employee and the agency simply chose not to renew her contract. The Commission rejected this argument, finding that the agency failed to provide evidence that the officer was a poor performer or that she was guilty of any kind of misconduct or otherwise offensive behavior. Rather, the Commission found that the agency's stated reason for terminating the officer's contract was directly related to her protected allegations of discrimination; the officer complained about her supervisor's unfair scheduling based on her sex and national origin.
The agency also tried to argue that the termination of the officer's contract was not unique - others who also alleged discrimination did not have their contracts terminated. The Commission found that these other employees were not similarly situated with the officer since they had not been as active in opposing discrimination as she had. The Commission further found that although the officer was a contract employee, the agency stopped giving her work several months prior to the expiration of her contract, which was equivalent to a termination. Also persuasive was the short delay between the officer's complaint about discrimination and the agency's termination of her work assignments (less than four months).
* 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.