0320090022
02-04-2009
Mari C. Alegre, Petitioner, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Mari C. Alegre,
Petitioner,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Petition No. 0320090022
MSPB No. PH0752070328I2
DECISION
On January 5, 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 Title VII of the Civil Rights Act of
1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
Petitioner was employed by the agency as a GS-0343-09 Program Analyst
at the Naval Station in Newport, Rhode Island. As part of the agency's
implementation of the recommendations of the Base Realignment and
Closure (BRAC) Commission, a reduction-in-force (RIF) was conducted.
Nine positions in petitioner's office, including the program analyst
position occupied by petitioner, were identified for abolishment.
Petitioner was offered and accepted the position of GS-0326-05 Office
Automation Clerk and was placed in the new position in March 2007.1 She
filed an appeal with the MSPB asking for review of the agency's actions.
In her appeal, petitioner alleged that she was discriminated against on
the bases of national origin (Filipino) and reprisal for prior protected
EEO activity when she was removed from her GS-09 Program Analyst position
and forced to accept the offer of a GS-5 Office Automation Clerk position
pursuant to the RIF. Petitioner claims that instead of being placed
in the GS-5 position, she should have been allowed to retreat to one of
three GS-09 positions she identified.
A hearing was held, and thereafter a MSPB Administrative Judge (AJ)
issued an initial decision finding, among other things, no discrimination
or reprisal as alleged. Petitioner sought review by the full Board,
and in a decision dated December 5, 2008, the Board denied her request.
Petitioner then filed the instant petition. Petitioner presents no new
arguments in her petition.
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).
Petitioner contends that she was qualified for three positions-GS-09
Conference Center Manager, GS-09 Administrative Officer, and GS-09
Referral Specialist for Housing Referral Services-and should have been
allowed, upon the abolishment of her program analyst position, to retreat
to one of those positions and bump the incumbent, thereby retaining
her GS-9 pay level. However, the MSPB AJ determined that regulations
provided petitioner must be qualified for the position to which she was
seeking to retreat. The AJ noted that the rating and selecting officials,
who did not know petitioner and were aware of her national origin only
from what they could deduce from her resume, found that petitioner
was not qualified for any of the identified positions. Specifically,
these officials testified that regarding the Conference Center Manager
position, petitioner had previous experience working as a hotel clerk but
did not have experience marketing and planning conferences. Regarding
the Administrative Officer position, the rating and selecting officials
found that petitioner lacked experience in military manpower management.
Regarding the Referral Specialist for Housing Referral Services, the
rating and selecting officials found that, despite the fact petitioner
previously held a real estate license, she lacked recent experience
of real estate management issues. The AJ agreed with the agency that
petitioner had not shown she was qualified for the positions in question.
As such, she was unable to prove that the agency's proffered reasons
for its actions were a pretext for discrimination.
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
February 4, 2009
__________________
Date
1 By the time the MSPB administrative judge issued her decision in July
28, 2008, petitioner had received an additional offer from the agency
and accepted a Budget Analyst, GS-560-09, position, returning to the
same level of grade and pay which she had held prior to the RIF action.
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0320090022
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0320090022