0320160042
06-02-2016
Adrian W.,1 Petitioner, v. Ashton B. Carter, Secretary, Department of Defense, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Adrian W.,1
Petitioner,
v.
Ashton B. Carter,
Secretary,
Department of Defense,
Agency.
Petition No. 0320160042
MSPB No. PH-0752-12-0272-I-1
DENIAL OF CONSIDERATION
On May 11, 2016, Petitioner filed a petition with the Equal Employment Opportunity Commission asking for review of a Final Order issued by the Merit Systems Protection Board (MSPB) concerning his claim of discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
At the time of events at issue, Petitioner worked as a GS-13 Executive Staff Officer at the Agency's National Security Agency (NSA). By statute, NSA employees are required to maintain a security clearance as a condition for employment. See 50 U.S.C. �� 831-835. On January 4, 2010, the Agency's Office of Personnel Security (OPS) issued a decision revoking Petitioner's security clearance and proposing to remove him for failure to meet a mandatory condition for employment. Petitioner was provided with the decision and supporting documentation. He requested review by the Chief of the Adjudications Division, but the revocation was sustained on review. Petitioner exercised his right to an in-person final review by the Agency's Access Appeals Panel (Panel), and by letter dated August 10, 2010, the Panel notified Petitioner of its decision to sustain the revocation. Subsequently, by letter dated August 16, 2010, Petitioner was informed that he no longer met a mandatory condition of NSA employment and would be removed, effective August 30, 2010.
On March 26, 2012, Petitioner filed an appeal to the MSPB seeking review of the removal. The MSPB Administrative Judge (AJ) issued a decision, dated July 24, 2012, sustaining the removal. Specifically, the AJ found that the Board did not have the authority to review or inquire into the validity the Agency's reason for deciding to revoke Petitioner's security clearance, but could review the appropriateness of the removal based on whether or not the Agency was able to successfully establish that Petitioner no longer met a condition of employment. The record reflects that as a result of recurring domestic incidents involving his wife, Petitioner's security clearance was revoked and he was subsequently removed from his position. The AJ reasoned that the Agency put forth sufficient evidence to establish that all Agency employees were required to have a security clearance. The AJ did not consider Petitioner's discrimination claim reasoning that the claim was explicitly related to the reasons for the revocation of the security clearance. Petitioner was advised that the initial decision would become final on August 28, 2012 unless a petition for review was filed by that date.
Petitioner did not file a petition for review, however, until November 30, 2015. He explained that the week before he filed the petition for review, he obtained a copy of his background investigation report showing that his criminal convictions in the state of Maryland had been expunged or overturned. The Board dismissed the petition for review as untimely filed after finding that even assuming this new evidence was not previously available despite Petitioner's due diligence, it was not material to the outcome of his case because his removal was based on the revocation of his security clearance and not his criminal record. In dismissing his petition, the Board found that Petitioner did not show good cause for the untimely filing of his petition for review. The Board held that, "the initial decision remains the final decision of the Board regarding the appellant's removal." Petitioner filed the instant petition which requests that we assist him in "[g]etting my employment reinstated as the charges did not result in a conviction."
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. Here, the MSPB explicitly found that it lacked the authority to consider the merits of Petitioner's allegations of discrimination. Because the MSPB did not make a determination on Petitioner's allegations of discrimination, the Commission has nothing to review. In these circumstances, the Commission does not have jurisdiction over Petitioner's petition. See Petitioner v. Dep't of Def., EEOC Petition No. 0320150005 (Feb. 19, 2015) (denied consideration where the MSPB found that it was precluded from reviewing petitioner's allegation of discrimination regarding the revocation of her security clearance); Adkison v. Dep't of the Navy, EEOC Petition No. 03A20082 (Sept. 18, 2002) (denied consideration where the MSPB found that it was precluded from reviewing petitioner's allegation of discrimination regarding the revocation of her security clearance); Biggers v. Dep't of the Defense, EEOC Petition No. 03980049 (Sept. 9, 1998) (denied consideration where the MSPB found that it had no jurisdiction to review petitioner's allegation of discrimination regarding the denial of his security clearance). As the MSPB did not address any matters within the Commission's jurisdiction, the Commission has no jurisdiction to review Petitioner's case. Consequently, the Commission will DENY consideration of the petition for review.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
__6/2/16________________
Date
1 This case has been randomly assigned a pseudonym which will replace Petitioner's name when the decision is published to non-parties and the Commission's website.
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