Mari C. Alegre, Petitioner,v.Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionFeb 4, 2009
0320090022 (E.E.O.C. Feb. 4, 2009)

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