0320080072
08-04-2008
Theresa Dwyer, Petitioner, v. Henry M. Paulson, Jr., Secretary, Department of the Treasury, Agency.
Theresa Dwyer,
Petitioner,
v.
Henry M. Paulson, Jr.,
Secretary,
Department of the Treasury,
Agency.
Petition No. 0320080072
MSPB No. DA-0432-07-0216-I-1
DECISION
On May 28, 2008, petitioner filed a timely petition with the Equal
Employment Opportunity Commission (EEOC or Commission) asking for review
of a Final Order issued by the Merit Systems Protection Board (MSPB or
Board) dated April 29, 2008, concerning her 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. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
Petitioner alleged that she was discriminated against based on her
race (Caucasian), sex (female) and age (58) when effective January
26, 2007, she was terminated from her job of internal revenue agent.
She was removed under the charge of unacceptable performance in the
critical performance plan element of business results --- efficiency.
Following a hearing, an MSPB Administrative Judge (AJ) issued an
initial decision sustaining the charge and finding no discrimination.
The initial decision found that petitioner did not prove she was treated
differently than a black male internal revenue agent (comparison 1).
It relied on testimony of petitioner's supervisor that when she reviewed
the cases of comparison 1, she did not detect any untimeliness issues,
albeit around the time he left she discovered documentation was missing
from some of his case files. The initial decision noted the supervisor's
testimony that comparison 1 was a higher graded employee with more complex
cases than petitioner. It also relied on the testimony of petitioner's
second level supervisor that he did not observe any other employees in
petitioner's office with the same performance problems as petitioner.
Petitioner filed a petition to review the initial decision with the full
Board, which denied the petition.
Petitioner then filed the instant petition. On petition, she argues
that that she was disparately treated from comparison 1. Petitioner,
however, failed to prove that comparison 1 had performance deficiencies
similar to hers. Petitioner's supervisor testified that comparison 1
had a very high volume of cases, moved them, made timely decisions, and
worked them concurrently. While petitioner pointed to documentation
in the record arguing that it demonstrated time and other lapses by
comparison 1, she did not show that management should have viewed his
business efficiency as warranting a rating of failure.
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 a
correct interpretation of any applicable law, rule, regulation or policy
directive, and is supported by the evidence in the record as a whole.
29 C.F.R. � 1614.305(c).
Based upon a thorough review of the record, 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 (W0408)
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 (Z0408)
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
August 4, 2008
__________________
Date
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0320080072
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0320080072