THE EEOC “SIMILARLY SITUATED” TRAP

There is a truck full to EEOC case law rejecting an employee claims that they were treated differently than co-workers because the co-workers were not “similarly situated.”  That is a different way of saying that because the employee’s situation was not nearly identical to that of the specified co-workers the agency was permitted to treat them differently and less severely. That can scare a lot of employees away from even trying to get help from EEOC, but a new decision highlights that there is a subtle way around it.

In this case the employee alleged that the agency discriminated against her on the basis of sex (female) and reprisal under Title VII when it issued a Letter of Warning, then gave her a 7-Day Suspension, and after that suspended her for 14 days. I am sure the supervisors sat around with the contentment of Lewis Carrol’s Cheshire Cats thinking they would win because the employee’s situation was not identical of her co-workers. But then EEOC issued a decision ruining their serenity by writing the following:

We find that the reasons provided by the Agency for the difference in treatment constitute part of the Agency’s legitimate nondiscriminatory reasons for its actions, not valid arguments that Complainant and the comparators were not similarly situated. Because Complainant is female and received adverse treatment that male coworkers working in the same position and under the same supervisor did not receive, we find she has established a prima facie case based on sex with regard to all three claims.

EEOC ordered the agency to rescind all three disciplinary actions, clean up her records, work out an amount of cash it owed her for the damage it caused her and discipline the managers.  For details, see Laquita H., v. Louis DeJoy, PG, United States Postal Service, EEOC No. 2022003864 (2023)