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