Alvin A. Amar, Petitioner,v.Paul H. O'Neill, Secretary, Department of the Treasury (Internal Revenue Service), Agency.

Equal Employment Opportunity CommissionDec 18, 2001
03A20006 (E.E.O.C. Dec. 18, 2001)

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