03a50085
11-23-2005
Rose Wood, Petitioner, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Rose Wood v. Department of Homeland Security
03A50085
November 23, 2005
.
Rose Wood,
Petitioner,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Petition No. 03A50085
MSPB No. DA-0752-05-0253-I-1
DECISION
On September 20, 2005, 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, a Supervisory Customs and Border Protection Officer at the
agency's El Paso, Texas facility, alleged that she was discriminated
against on the basis of sex (female) and in retaliation for prior EEO
activity when she was demoted from a GS-12 supervisory position to a
GS-11 non-supervisory position. Petitioner filed a mixed case appeal with
the MSPB. After a hearing, the Administrative Judge (AJ) found that the
agency articulated legitimate, nondiscriminatory reasons for its action.
Specifically, the AJ found that petitioner had originally been issued a
notice of removal based on six charges, but that following petitioner's
reply to the charges, the Director of Field Operations sustained four of
the six charges and reduced the removal to a demotion to a non-supervisory
position. The four sustained charges were the following:
conducting personal business on official time;
attempting to obtain official information for other purposes;
failure to pay a Government credit card in a timely manner; and
obtaining COSS (Customs Officers Scheduling System) information for
unofficial purposes.
Finally, the AJ found that petitioner failed to establish that the
agency's articulated reasons were pretext for discrimination. Petitioner
did not seek review of the Initial Decision which then became the Board's
final decision, and filed the instant petition with the Commission.
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 and for the foregoing reasons,
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 (W0900)
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 (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
November 23, 2005
__________________
Date