03A20006
12-18-2001
Alvin A. Amar, Petitioner, v. Paul H. O'Neill, Secretary, Department of the Treasury (Internal Revenue Service), Agency.
Alvin A. Amar v. Department of the Treasury
03A20006
December 18, 2001
.
Alvin A. Amar,
Petitioner,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Petition No. 03A20006
MSPB No. SF-0752-00-0064-I-1
DECISION
On October 2, 2001, petitioner filed a timely petition with the Equal
Employment Opportunity Commission asking for review of a Final Order
issued by the Merit Systems Protection Board (MSPB or Board), concerning
his claim of discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
Petitioner, a Volunteer Education Assistant, GS-07, at an agency facility
in Los Angeles, California, alleged that he was discriminated against on
the bases of race (Cherokee Indian) and national origin (Native American)
when he was removed from his position. On November 5, 1999, petitioner
filed a mixed case appeal with the MSPB. After a hearing, the MSPB
Administrative Judge (AJ) affirmed the agency's removal of complainant.
Petitioner filed a petition for review to the Board. The Board denied
petitioner's petition for review. However, the Board reopened the appeal
on its own motion, finding that petitioner's right to due process had
been violated and therefore required reversal of the removal action.
BACKGROUND
The agency removed petitioner based on various income tax violations,
including: (1) taking improper deductions on his 1993 Federal Income Tax
Return for business-related automobile expenses, charitable contributions,
and interest; (2) making false statements in matters of official
interest, relating to a meeting with his immediate supervisor on February
11 and 12, 1998, involving his outside job as a physical therapist,
days worked at that job, and reported earnings for that job for the
year 1993; and (3) failure to obtain proper approval for his outside
employment as a physical therapist. The AJ issued an initial decision
that sustained all of the agency's charges, found that the penalty of
removal was reasonable, and determined that petitioner failed to prove
his affirmative defense of discrimination.
The Board denied petitioner's petition for review because he did not
identify an error in the initial decision that may have affected the
outcome of the appeal. However, the Board reopened the appeal on its own
motion to address a procedural defect that undermined the petitioner's
right to due process and therefore required reversal of the removal
action. More specifically, the Board found that the agency violated
petitioner's right to due process as set forth in Stone v. Federal
Deposit Insurance Corp., 179 F.3d 1368 (Fed. Cir. 1999), because the
deciding official received and relied on ex parte communications that
introduced new and material information to the decision-making process.
Before the Commission, petitioner alleges that the MSPB erred in failing
to find that he was removed due to discrimination.
ANALYSIS AND FINDINGS
EEOC Regulations provide that the Commission has jurisdiction over
mixed case appeals on which the MSPB has issued a decision that makes
determinations on allegations of discrimination. 29 C.F.R. � 1614.303
et seq. The Commission must determine whether the decision of the
MSPB with respect to the allegation of discrimination constitutes an
incorrect interpretation of any applicable law, rule, regulation or policy
directive, or is not supported by the evidence in the record as a whole.
29 C.F.R. � 1614.305(c).
In general, claims alleging disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corporation
v. Green, 411 U.S. 792 (1973); Prewitt v. USPS, 662 F.2d 292 (5th
Cir. 1981); Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979)(requiring
a showing that age was a determinative factor, in the sense that �but
for� age, complainant would not have been subject to the adverse action
at issue). A complainant must first establish a prima facie case of
discrimination by presenting facts that, if unexplained, reasonably give
rise to an inference of discrimination, i.e., that a prohibited reason
was a factor in the adverse employment action. McDonnell Douglas, 411
U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978).
Next, the agency must articulate a legitimate, nondiscriminatory reason
for its action(s). Texas Department of Community Affairs v. Burdine,
450 U.S. 248 (1981). After the agency has offered the reason for its
action, the burden returns to the complainant to demonstrate, by a
preponderance of the evidence, that the agency's reason was pretextual,
that is, it was not the true reason or the action was influenced by
legally impermissible criteria. Burdine, 450 U.S. at 253; St. Mary's
Honor Center v. Hicks, 509 U.S. 502 (1993).
Complainant may establish a prima facie case of discrimination by showing
that he is a member of a protected group and that he was treated less
favorably than other similarly situated employees outside his protected
group. See Potter v. Goodwill Industries of Cleveland, 518 F.2d 864, 865
(6th Cir. 1975). Complainant may also set forth evidence of acts from
which, if otherwise unexplained, an inference of discrimination can
be drawn. Furnco, 438 U.S. at 576.
The AJ found that although petitioner alleged that the agency's action
was based on discrimination based on his race and national origin, i.e.,
Cherokee and Native American, he presented no evidence in this regard.
The AJ therefore found that petitioner failed to set forth a prima
facie showing of prohibited discrimination. The Board affirmed the
AJ's finding.
Before the Commission, petitioner provided no evidence that he was
treated less favorably than other similarly situated employees outside
his protected groups. Petitioner also did not set forth any evidence of
acts from which, if otherwise unexplained, an inference of discrimination
could be drawn. Accordingly, we agree with the MSPB that petitioner
failed to establish a prima facie case of discrimination.
In addition, the agency has articulated a legitimate, nondiscriminatory
reason for its removal of petitioner, i.e., serious misconduct.
Complainant has not shown pretext.
CONCLUSION
Based upon a thorough review of the record and for the foregoing reasons,
it is the decision of the Commission to concur with the final decision
of the MSPB finding no discrimination. The Commission finds that the
MSPB's decision constitutes a correct interpretation of the laws, rules,
regulations, and policies governing this matter and is supported by the
evidence in the record as a whole.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0900)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court,
based on the decision of the Merit Systems Protection Board, within
thirty (30) calendar days of the date that you receive this decision.
If you file a civil action, you must name as the defendant in the
complaint the person who is the official agency head or department head,
identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 18, 2001
Date