Michelle Spahn v. Department of Justice, 93 MSPR 195, Jan. 9, 2003.

In considering whether a penalty imposed was discriminatory, the similarity of comparative employees' conduct is controlling, rather that the charges the agency chose to bring against the employees.

Ms. Spahn was hired as a Basic Agent Trainee with the Drug Enforcement Agency (DEA). She was removed after being accused of cheating during a test with several other male colleagues at Quantico. She was charged with failure to follow written instructions, false statements, and conduct unbecoming a DEA employee. Ms. Spahn was the only female and the only person still employed with the agency to not be offered a settlement containing a 14-day suspension and a last chance agreement.

Ms. Spahn appealed the agency's removal. The Administrative Judge (AJ) found in favor of the agency, stating that the agency had proved all three of its charges. The AJ also stated Ms. Spahn did not prove her claim of sex discrimination by a preponderance of evidence. The AJ pointed out that Ms. Spahn and the comparative male employees were not charged with the same offenses stemming from their conduct during the test. The AJ upheld the removal as reasonable under the circumstances.

The full Merit System Protection Board (MSPB) enumerated the particulars for a sex discrimination prima facie case: the appellant was a member of a protected group, she was similarly situated to an individual who was not a member of the protected group, and she was treated more harshly or disparately than the individuals who were not members of the group. Ms. Spahn carried the burden of persuading the MSPB she met the prima facie case. The MSPB stated that comparative employees are judged by the similarity of their conduct and not the charges the agency lays against the employees. Ms. Spahn was removed from conduct arising from a cheating incident whereas the comparative male employees were suspended and place on last chance agreements. The Board also stated that the settlements of the comparative male employees do not preclude Ms. Spahn from ascertaining discrimination on account of gender. The Board vehemently asserted that "the settlement process itself [cannot] be used to commit prohibited discrimination." Thus, upon examining the case presented by Ms. Spahn, the Board found the DEA guilty of sex discrimination and directed the agency to impose the same penalty (14-day suspension and last chance agreement) upon Ms. Spahn as had been imposed upon the similarly situated males.