01980452
06-21-2001
Vathsala Srinivasan, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, (Internal Revenue Service) Agency.
Vathsala Srinivasan v. Department of the Treasury (Internal Revenue
Service)
01980452
June 21, 2001
.
Vathsala Srinivasan,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
(Internal Revenue Service)
Agency.
Appeal No. 01980452
Agency No. 95-4217
Hearing No. 340-96-3444X
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning her equal employment opportunity (EEO) complaint of unlawful
employment 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. The appeal is accepted pursuant to 29 C.F.R. �
1614.405. Complainant alleges she was discriminated against on the bases
of sex (female), age (D.O.B. June 6, 1951) and national origin (East
Indian) when on June 21, 1995, she was terminated from her probationary
position as Tax Auditor.
The record reveals that at the relevant time, complainant was a
probationary GS-7, Tax Auditor with the IRS, Los Angeles District in
Van Nuys, California. Complainant was hired for this position on March
19, 1995 and began a period of classroom training, where she did not
meet the minimum criteria for passing. She then began her on-the-job
training where her supervisors found her performance to be inadequate.
Complainant was issued a letter of termination on June 12, 1995, citing
numerous training objectives that complainant failed to meet. Complainant
then filed a claim with the Merit Systems Protection Board (MSPB),
alleging that her termination was in retaliation for whistleblowing.
The MSPB dismissed this claim for lack of jurisdiction, finding that
complainant had failed to show that she made protected disclosures under
the Whistleblower Protection Act.<1> Complainant's subsequent appeal
of the MSPB decision was denied. Complainant then filed a formal EEO
complaint with the agency on October 14, 1997, alleging that the agency
discriminated against her as referenced above. At the conclusion of the
investigation, complainant received a copy of the investigative report and
made a request for a hearing before an EEOC Administrative Judge (AJ).
Following the hearing, the AJ issued a decision finding no discrimination.
The AJ concluded that complainant established a prima facie case of
national origin discrimination. The AJ further concluded that the agency
articulated legitimate, nondiscriminatory reasons for its actions, namely
the performance deficiencies attributed to complainant, her unwillingness
to accept and learn from critical feedback, and her uncooperative
and contentious attitude toward her supervisors. The AJ found that
complainant did not establish that more likely than not, the agency's
articulated reasons were a pretext to mask unlawful discrimination.
We note that complainant appears to have withdrawn the bases of sex
and age discrimination immediately prior to the hearing before the
Administrative Judge. However, on appeal complainant claims that these
bases were reinstated at the start of the hearing and that the transcript
of the hearing reveals that there is ample evidence that the bases of sex
and age were addressed. The complainant asserts that these bases should
therefore be included in the instant appeal and the Commission agrees.
The final agency decision (FAD) adopted in part, and modified in part,
the AJ's decision. In its FAD, the agency found that complainant did
not meet her burden for establishing a prima facie case of national
origin discrimination in that she did not demonstrate that a similarly
situated individual, not in her protected group, was retained despite
comparable performance problems. The agency decision also addresses the
claims of age and sex discrimination, stating that complainant failed to
meet her prima facie burden. The FAD further stated that, even assuming
arguendo that complainant established a prima facie case of age and sex
discrimination, complainant failed to show that the agency's articulated
reasons for her termination were pretextual. On appeal, complainant
contends that the AJ made serious errors in the application of law and
findings of fact, as well as committed numerous irregularities, procedural
and otherwise. Our decision on the instant appeal shall therefore be
based on a de novo review of the record, and will address the bases of
race, sex, and age discrimination. See 29 C.F.R. � 1641.405 (a).
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); Prewitt v. United States Postal Service, 662 F.2d
292, 310 (5th Cir. 1981); and Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545
F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to reprisal cases),
the Commission agrees with the agency that complainant failed to present
evidence that, more likely than not, the agency's articulated reasons
for its actions were a pretext for discrimination.
In reaching this conclusion, we note that the agency's stated reason for
removing complainant, namely her poor performance in training and her
unwillingness to accept and address critical feedback, are well supported
by the record. Complainant has failed to adduce any persuasive evidence
which could support the conclusion that the agency's explanation for
its actions is a pretext designed to conceal discriminatory intent.
Therefore, after a careful review of the investigative file, the
transcript of the administrative hearing, and all other relevant documents
and evidence, we AFFIRM the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the office of federal operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from 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. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
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
June 21, 2001
__________________
Date
1See Srinivasan v Department of the Treasury, MSPB No. SF-1221-96-0272-W-1
(May 9, 1996).