0320100031
06-15-2010
Maria E. Becerra, Petitioner, v. Janet Napolitano, Secretary, Department of Homeland Security, (Customs and Border Protection), Agency.
Maria E. Becerra,
Petitioner,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
(Customs and Border Protection),
Agency.
Petition No. 0320100031
MSPB No. SF0731100084I1
DECISION
Petitioner filed a timely petition with the Equal Employment Opportunity
Commission asking for review of a decision 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 (married to a Jordanian) and sex (female) when she was removed
from her position of Custom and Border Protection Officer. Petitioner
was hired, pending the outcome of a suitability determination by the
agency. Petitioner was removed after the suitability determination found
that she had not been truthful regarding her knowledge of her husband's
visa status when she married him. Thus, petitioner was removed based on
the charge "dishonest conduct."
A hearing was held and thereafter an MSPB Administrative Judge (AJ)
issued an initial decision finding that petitioner was not discriminated
against as alleged. The AJ first found that the MSPB had jurisdiction
over the instant matter because petitioner would have been eligible for
conversion to the competitive service had she completed her two year trial
period. The AJ noted that initially petitioner stated that she did not ask
her husband about his visa status, and only became involved with his visa
status when they went to an immigration office after they were married
in order to apply for a new permanent visa. Petitioner was scheduled
for a polygraph examination to resolve the question of when she learned
her husband had overstayed his visa. However, before the polygraph was
administered, petitioner signed a statement before the polygraph examiner
admitting that she knew that her husband had overstayed his visa when
she married him, and that she had lied about the matter. The AJ found
the testimony of the examiner more credible than that of petitioner
regarding the admissions petitioner made in her written statement. The
AJ found that the agency supported its suitability determination and
that petitioner's position was such that her dishonest conduct cast
doubt on her suitability for the position. Finally, the AJ found that
petitioner did not support her claims of discrimination. Petitioner did
not seek review by the full Board and the initial decision became the
final decision. Petitioner then filed the instant petition.1
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. Petitioner has failed to show that the agency's reasons
for its actions were a pretext for 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
June 15, 2010
__________________
Date
1 As the AJ made clear at the hearing, the issue is not the visa status of
petitioner's husband, but rather petitioner's untruthfulness as to when
she found out he had overstayed his visa. At the time of petitioner's
removal, her husband was in the country legally.
??
??
??
??
2
0320100031
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0320100031