03a20038
04-10-2002
Denise M. Webber, Petitioner, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Denise M. Webber v. Department of the Treasury
03A20038
04-10-02
.
Denise M. Webber,
Petitioner,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Petition No. 03A20038
MSPB No. DA-0752-00-0492-I-1
DECISION
Denise M. Webber (hereinafter referred to as petitioner) timely filed a
petition for review with the Equal Employment Opportunity Commission (the
Commission) for review of the Final Order of the Merit Systems Protection
Board (MSPB or Board) dated January 8, 2001, concerning an allegation of
discrimination in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. � 2000e et seq. The petition is governed by the
provisions of the Civil Service Reform Act of 1978 and EEOC Regulations,
29 C.F.R. � 1614.303 et seq. The MSPB found that the Department of
the Treasury (hereinafter referred to as the agency) did not engage in
discrimination as alleged by petitioner. For the reasons that follow,
the Commission concurs with the Board's decision.
The issue presented is whether the MSPB's determination that petitioner
failed to prove that the agency discriminated against her based on sex and
race (black) when she was demoted by one grade in May 2000, constitutes
a correct interpretation of the applicable laws, rules, regulations,
and policy directives and is supported by the record as a whole.
Petitioner filed an appeal with the MSPB on June 20, 2000, challenging her
demotion and, inter alia, alleging discrimination based on sex and race.
Following a hearing, a MSPB Administrative Judge (AJ) issued an Initial
Decision on March 29, 2001, affirming the demotion and finding that the
agency did not discriminate against petitioner.<1> She appealed to the
full Board, which denied her petition to reconsider the Initial Decision.
At the time of the events at issue, petitioner was a Criminal
Investigator, GS-13, U.S. Customs Service, a position she had held since
March 1997. Her duties included conducting complex investigations and
supervising other case agents. Beginning in March 1999, petitioner
came under investigation by the agency for inappropriate relations with
confidential informants (CIs), including meeting alone with CIs at her
personal residence and receiving gifts from them. In March 2000, the
agency proposed her removal for (1) inappropriate association with CIs and
(2) unethical conduct. The deciding official, although sustaining both
charges, determined that the penalty be mitigated to a one-grade demotion.
The AJ found that the agency's charges were supported by a preponderance
of the evidence.
Petitioner also claimed that the agency discriminated against her based
on race and sex. Specifically, she claimed that, when she was promoted
to GS-13 in March 1997, some white male agents were dismayed that she was
awarded the promotion and that her selection was "reverse discrimination."
In addition, petitioner claimed that two white males, who were charged
with more egregious actions, received less severe punishments. The AJ
rejected both claims and found that she did not provide adequate support
for her claims of discrimination. First, he noted that petitioner
had, in fact, received the promotion in 1997, and, more significantly,
petitioner admitted to engaging in the alleged misconduct, which she
knew or should have known was wrong. With regard to the other agents
charged with misconduct, the AJ found that neither worked in the same
unit or state, nor was the deciding official the same as in her case.
The AJ found that the agency articulated a legitimate, nondiscriminatory
reason for its action--that petitioner engaged in the actions as charged.
The Commission must determine whether the decision of the MSPB
with respect to the claim of discrimination constitutes a correct
interpretation of any applicable laws, rules, regulations, and policy
directives and is supported by the evidence in the record as a whole.
29 C.F.R. �1614.305(c). After considering petitioner's contentions and
thoroughly reviewing the record, the Commission concurs with the MSPB,
finding that the agency did not discriminate against petitioner.
Petitioner's claims are examined under the tripartite analysis first
described in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973).
Petitioner 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 consideration
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). The agency offers rebuttal to the inference of discrimination by
articulating a legitimate, nondiscriminatory reason for its action(s).
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981). Once the agency has met its burden, the petitioner bears
the ultimate burden to persuade the fact finder by a preponderance of
the evidence that the reasons offered by the agency were not the true
reasons for its actions but rather were a pretext for discrimination.
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). Where the agency
has articulated a legitimate, nondiscriminatory reason for its action,
the analysis may proceed directly to the third step of the inquiry
to consider the ultimate issue of whether petitioner has shown by a
preponderance of the evidence that the agency's action was motivated
by discrimination. U.S. Postal Service Board of Governors v. Aikens,
460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation,
EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of
Health and Human Services, EEOC Request No. 05900467 (June 8, 1990).
Petitioner argued, inter alia, that the AJ was incorrect when he failed
to compare the punishments given to the two comparative male employees
and found that they were not similarly situated to her. Although the
AJ found that petitioner failed to establish a prima facie case, he
nevertheless assumed a prima facie case and addressed the agency's
articulation, finding that petitioner failed to demonstrate pretext.
In addition, petitioner argued that the AJ's credibility determinations
lacked support and that he erred with regard to his finding of no
discrimination. She contended that the AJ's findings on credibility were
incomplete, in that, the AJ should have further described his findings
that the testimony of the witnesses was consistent and that the witnesses
were �forthright in their demeanor.� The agency argued that the AJ
relied on Board precedent in making such findings. After a review of the
record, we find that petitioner's argument are not persuasive, since the
AJ's findings of credibility are supported by the facts of this matter.
In addition, petitioner sought to claim that the charges against her
were based on events prior to her promotion; the record clearly shows
that her improper conduct took place after March 1997.
After a thorough review of the record in this matter, the Commission
finds that the decision of the MSPB with regard to petitioner's claim
of discrimination is correct and supported by the evidence in the record
as a whole. For this reason, the Commission concurs with the Board.
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.
STATEMENT OF PETITIONER'S RIGHTS
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
_______04-10-02_________________
Date
1The AJ also found that the demotion promoted the efficiency of the
service and was appropriate under the facts and circumstances of the case.