Employment Law Daily Male comparators didn’t engage in similar security-related misconduct, dooming sex bias claim
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Wednesday, September 19, 2018

Male comparators didn’t engage in similar security-related misconduct, dooming sex bias claim

By Lorene D. Park, J.D.

Affirming summary judgment against a Title VII gender discrimination claim by a female security employee at a Puerto Rico airport, the First Circuit found that three security violations, including abandoning her post, piggybacking through a security door, and using her cellphone while on duty were legitimate reasons for her discharge and she failed to show pretext. The record did not show that the male comparators she claimed were treated better were in fact similarly situated to her. The employee’s retaliation claim also failed, even though she was fired shortly after her EEOC charge, because the timing was explained by the government’s request that her employer remove her from her airport post due to the security violations (Bonilla-Ramirez v. MVM, Inc. dba MVM Security, Inc., September 14, 2018, Barron, D.).

The employee worked for a private security company based in Puerto Rico that provides security services to the U.S. Immigration and Customs Enforcement (ICE). She was assigned to the international airport in San Juan, where her duties included providing security for detainees in ICE custody at an airport detention facility.

June 14 incident. On June 14, 2014, the employee complained that a male coworker was ordering her around, asking her to do all their work, calling her out for using her personal cellphone, and acting like her supervisor. At her supervisor’s request, she made a written statement of the incident. The male employee also wrote a letter complaining that the employee was directing foul language toward him on June 14.

Reassigned for “security violations.” The employer investigated and determined from its inquiry that, immediately before the incident, the employee had abandoned her post for two hours with an off-duty coworker. According to the employer, security footage showed the employee engage in “piggybacking,” which means following another person through a secured door without independently swiping her badge and entering her personal code on a keypad. The inquiry also showed the employee had used her personal cellphone during work hours. On July 10, she was cited for committing multiple “security violations,” issued a verbal warning, had her airport badge taken away, and reassigned to another post.

Fired day after EEOC charge. On August 12, the employee filed an EEOC charge of sex discrimination and retaliation. The charge was faxed to her employer the same day and, that evening ICE sent an email to the employer’s operations manager, asking that the employee be immediately removed from providing services for ICE under the employer’s contract. She was called and told not to report to work on August 13. She was informed on August 14 that she was terminated effective August 13.

Title VII claims fail. In May 2015, the employee filed suit against MVM and other defendants asserting a variety of claims under federal and Puerto Rico law. The district court dismissed some claims and granted summary judgment on others. The employee appealed summary judgment on her Title VII claims for gender-based disparate treatment, hostile work environment, and retaliation. Affirming, the First Circuit quickly disposed of the hostile work environment claim because it was not included in the employee’s EEOC charge, so had not been administratively exhausted.

No sex discrimination. As for the discrimination claim, assuming a prima facie case, the employee’s asserted security violations of abandoning her post, using her cell phone while on duty, and piggybacking through a security door were legitimate reasons for the adverse employment actions. In response, the employee failed to raise a triable issue on whether these reasons were pretextual. She pointed to three male employees who she claimed were not as severely disciplined for similar misconduct, but the record did not show that the comparators were similarly situated. Unlike the employee’s situation, there was no evidence their alleged misconduct constituted security violations and nothing in the record indicated ICE requested that they be removed. In fact, noted the court, the only other employees in the record who engaged in security violations, a male and a female, both lost their airport badges, and were terminated after ICE requested that they be removed. Summary judgment was thus appropriate on the disparate treatment claim.

No retaliation. With respect to the retaliation claim, while the employee was terminated almost immediately after she filed her EEOC charge, the employer’s decision to do so at that time was “readily explain[ed]” by the timing of ICE’s request that she be removed from the contract and the employee had no evidence from which a jury could find that the employer prompted ICE to make that request. Consequently, the temporal proximity of the termination decision, without more, could not raise a triable issue. The employee also pointed to other adverse actions, but these occurred before her EEOC charge, and the employee failed to show that prior to her July 10 internal complaint about the coworker she engaged in protected activity that protested or opposed “statutorily prohibited discrimination.”

Summary judgment was also affirmed against the Puerto Rico law claims, which corresponded to her Title VII claims, because the employee made no argument that they would survive if the Title VII claims didn’t.

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