Establishing Discrimination

In Annette Davis v. Department of the Interior, 2010 MSPB 161 (August 5, 2010), the MSPB ("Board") found that the administrative judge ("AJ") used an incorrect standard in dismissing Davis's affirmative defenses of race and sex discrimination in her appeal of her removal from the Department of the Interior. The Board also found that the AJ erred when he did not notify Davis of the requisite burden needed to obtain a hearing on her discrimination claims. Furthermore, the Board ruled that Davis was entitled to an actual written decision from the AJ on whether she merited a hearing. Consequently, the Board remanded the case to the AJ to inform Davis of the burden she needed to meet to have a hearing on her discrimination claims, and to give Davis time to submit evidence and argument.

Davis, a fiscal officer, was removed from her position based on a charge of failure to comply with proper directives. Davis filed her appeal with the Board, and alleged that the removal action was based on prohibited discrimination based on her sex and race, and also on retaliation for having filed a prior equal employment opportunity (EEO) complaint.

After the appeal was filed, the AJ issued an "affirmative defenses order," and told Davis to identify the factual bases for her discrimination claims. The AJ further informed Davis that she needed to prove: 1.) she was a member of a protected group; 2.) she was similarly situated to an individual who was not a member of the protected group; and 3.) she was treated more harshly or disparately than the individual who was not a member of her protected group. Davis filed a response, but during the prehearing conference, the AJ dismissed the discrimination claims. The AJ stated that Davis failed to allege facts which, if proven, would establish a prima facie case of either race discrimination or sex discrimination. Davis objected to this prehearing conference ruling, but the AJ later affirmed the dismissal.

In its opinion and order, the Board found that the AJ erred in handling the race and sex discrimination affirmative defenses. The Board pointed out that "comparator evidence," as required by the "similarly situated" and "treated more harshly or disparately" criteria indicated by the AJ, is not necessary for a prima facie case of disparate treatment discrimination. Rather, in most cases where direct evidence is not involved, the Board looks to the analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Under this analysis, an employee can establish a prima facie case of discrimination by showing that he or she: 1.) is a member of a protected group; 2.) suffered an appealable adverse employment action; and 3.) the unfavorable action gives rise to an inference of discrimination. Once the employee meets this burden establishing a prima facie case, the burden shifts to the employer to show that the employer has a legitimate, nondiscriminatory reason for its action. If the employer is able to do so, the burden shifts back to the employee to show that the employer's stated nondiscriminatory reason is merely a pretext for discrimination.

The Board remanded the case back to the AJ with the order to inform Davis of her right to a hearing on her discrimination claim and to give her the opportunity to produce evidence and argument supporting her claims. If Davis establishes a genuine dispute of material fact, she will then be entitled to a supplemental hearing on her claims of sex and race discrimination.

* 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