Mia S. Rhee, Petitioner,v.Timothy F. Geithner, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionJun 30, 2009
0320090061 (E.E.O.C. Jun. 30, 2009)

0320090061

06-30-2009

Mia S. Rhee, Petitioner, v. Timothy F. Geithner, Secretary, Department of the Treasury, Agency.


Mia S. Rhee,

Petitioner,

v.

Timothy F. Geithner,

Secretary,

Department of the Treasury,

Agency.

Petition No. 0320090061

MSPB No. SF0432080301I1

DECISION

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 Title VII of the Civil Rights Act of 1964 (Title VII),

as amended, 42 U.S.C. � 2000e et seq.

Petitioner alleged that she was discriminated against on the bases of race

(Asian), national origin (Korean), sex (female), and reprisal for prior

protected EEO activity under Title VII of the Civil Rights Act of 1964

when she was removed from her position of Special Agent, GS-1811-7, Office

of Inspector General, Tax Administration, for unacceptable performance.

Briefly, in December 2006, petitioner was informed that she was being

put on a performance improvement plan (PIP). In August 2007, petitioner

was informed that she had failed the PIP, finding she had failed three

of four critical elements. On November 5, 2007, petitioner was issued

a proposal to remove for unacceptable performance, to which petitioner

responded. Petitioner was removed from her position effective January

25, 2008.

Thereafter petitioner filed an appeal with the MSPB and a hearing

was held. An MSPB AJ issued a decision finding that that the agency

failed to meet its burden of showing that petitioner's performance

standards were valid. Therefore, the AJ found that the agency's action

could not be sustained. With respect to petitioner's discrimination

and reprisal claims, the AJ found that petitioner did not show she was

treated differently from other employees. The AJ noted that the agency's

failure to apply a valid performance standard was not intentional, rather

it appeared to be a misunderstanding of the requirements of applicable

statutory and regulatory requirements. Although the AJ did not discuss

the agency's evidence regarding petitioner's actual performance, he

found that petitioner's work product evidenced "numerous and widespread

deficiencies in many of the duties with which she was tasked." The

AJ found the testimony of petitioner's supervisor to be credible with

respect to the supervisor's actions regarding an Asian individual filing

a complaint with the office of the Inspector General, as well as another

Asian employee.1 The AJ thus found no discrimination or reprisal.

Petitioner and the agency sought review by the full Board which denied

their petitions. The agency was ordered to reinstate petitioner with

appropriate backpay and benefits.

In her appeal, petitioner complains that she received a final decision

on an EEO complaint which dismissed her claims because of her MSPB

appeal. In that complaint, petitioner raised the following claims:

(1) she received an overall performance of "fail" for the period ending

September 20, 2006; (2) beginning November 5, 2007 and continuing her

manager assigned her unfair case work; and (3) on several occasions her

manager mocked and made negative comments about Asian accents. An EEOC

AJ dismissed the matter because they were inextricably intertwined with

the issues raised in the instant appeal to the MSPB. The EEOC AJ noted

the MSPB decision addresses petitioner's discrimination and reprisal

claims. The agency adopted the dismissal by the EEOC AJ on November 7,

2008, and gave petitioner appeal rights to the Commission. Petitioner

did not appeal the matter to the Commission. However, the Commission

notes that petitioner filed her petition for review with the Board on

November 20, 2008.

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 petitioner has failed

to show that the agency's reasons for its actions were a pretext for

discrimination or reprisal. 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

June 30, 2009

__________________

Date

1 The supervisor was accused of mimicking the accent of an Asian

individual who filed a complaint with the office of the Inspector

General. The supervisor explained that this complainant insisted on filing

a complaint anonymously, but the supervisor recognized the voice because

the complainant filed frequently. The supervisor explained to other agents

that despite recognizing the voice, the complaint had to be entered

into their tracking system as an anonymous complaint. The supervisor's

explanations were corroborated by others. As to the Asian co-worker,

the supervisor merely complained that she sent too many emails.

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0320090061

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0320090061