0320090073
08-13-2009
Cathy Bethea, Petitioner, v. Timothy F. Geithner, Secretary, Department of the Treasury, Agency.
Cathy Bethea,
Petitioner,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury,
Agency.
Petition No. 0320090073
MSPB No. DC0432090116I1
DECISION
On July 16, 2009, 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) concerning her claim
of discrimination in violation of 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 on the basis of
age (71) when, effective October 30, 2008, she was removed him from her
position as a Human Resources Assistant.
The record reflects that in the Notice of Proposed Removal, the agency
stated that petitioner's performance was unacceptable as measured
against her 2006 Performance Plan. According to the record, petitioner
was provided with a performance plan which described the five critical
elements of her position. In conformity with the plan, a Human Resources
Assistant's job performance is evaluated on how well she performed
with regard to five critical job elements: 1) Employee Satisfaction -
Employee Contribution; 2) Customer Satisfaction - Knowledge; 3) Customer
Satisfaction - Application; 4) Business Results - Quality; and 5)
Business Results - Efficiency. The Chief of Employee/Labor Relations,
Field Operations (Branch C) proposed to remove petitioner for unacceptable
performance in two critical elements, 4 and 5, of her position. In the
proposal notice, petitioner was charged with unacceptable performance
in all critical elements of her position.
Further review of the record reveals that the agency placed petitioner on
a so-called "Performance Improvement Plan" (PIP). The agency maintained
that petitioner was placed on the PIP because she had been unable to
improve her performance during a prior performance period. In the
PIP, petitioner was informed that her performance was unsuccessful in
several critical elements of her position, namely: Critical Element 4
(Business Results - Quality); and Critical Element 5 (Business Results
- Efficiency). The agency ultimately removed petitioner based on
unsatisfactory performance. The agency concluded that, despite its
best efforts to improve petitioner's work performance which even
included mentoring by one of petitioner's superiors, petitioner's
work assignments were continuously less than satisfactory and below a
"minimally successful" rating.
Following a hearing, the Administrative Judge (AJ) found that the
testimony of agency witnesses was more credible than that of petitioner.
With respect to petitioner's claims of age discrimination, the AJ found
that petitioner failed to show that agency officials were motivated
by discriminatory animus. The AJ strongly noted that the performance
standards, under which petitioner's performance was deemed unacceptable,
are valid; and petitioner was duly notified of the performance standards.
The AJ maintained that the record supports petitioner's removal by the
agency. In effect, petitioner failed to show a nexus between her age
and the agency's actions or that the actions were a pretext for unlawful
discrimination. Petitioner sought review by the full Board, but the Board
denied petitioner's petition for review. Thereafter petitioner filed the
instant petition with the Commission. She proffered no appeal statement.
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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 13, 2009
__________________
Date
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0320090073
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0320090073