0320160025
05-03-2016
Dion H.,1 Petitioner, v. Dr. Ernest Moniz, Secretary, Department of Energy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Dion H.,1
Petitioner,
v.
Dr. Ernest Moniz,
Secretary,
Department of Energy,
Agency.
Petition No. 0320160025
MSPB No. DA-0752-15-0319-I-1
DENIAL OF CONSIDERATION
On February 2, 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 Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq., and Title II of the Genetic Information Nondiscrimination Act of 2008, 42 U.S.C. � 2000ff et seq.
At the time of events at issue, Petitioner worked as a Nuclear Materials Courier at the Agency's Office of Secure Transportation, National Nuclear Security Administration in Amarillo, Texas. Petitioner was responsible for the safe and secure transportation of classified and/or hazardous materials including nuclear weapons, components, tests assemblies, and strategic quantities of weapons-grade special nuclear materials of significant importance to national security. Petitioner's position required Top Secret Clearance, which was managed through the Agency's Human Reliability Program (HRP).
On September 6, 2012, Petitioner's supervisor (S1) noted that Petitioner had signed in as arriving at work at 7:45a.m., but S1 saw him arriving later than that time. S1 questioned him about the discrepancy and Petitioner denied arriving late. On September 7, 2012, S1 contacted the HRP Manager (HRPM) and recommended that Petitioner be removed from HRP duties until they complete an evaluation of his reliability for duty. On September 10, 2012, S1 informed Petitioner that he was temporarily removed from HRP for "indications of deceitful or delinquent behavior," and placed on administrative leave pending a determination of reliability.
On October 16 and 22, 2012, Petitioner met with a psychologist (DR) for a special psychological evaluation. DR completed his evaluation and determined that Petitioner was unfit for continued HRP duty. DR submitted his recommendation to HRPM, who completed her assessment and recommended revocation of Petitioner's HRP credentials on March 27, 2013. On June 5, 2013, the Assistant Deputy Administrator permanently removed Petitioner from HRP duties. Petitioner requested a certification hearing and the Acting Administrator upheld the revocation of Petitioner's HRP credentials.
On April 7, 2014, the Agency proposed Petitioner's removal for failure to maintain his HRP certification, which is a condition of employment. Petitioner responded to the proposed removal, and on May 1, 2014, the Agency upheld Petitioner's removal, effective May 10, 2014. Petitioner filed a mixed case complaint with the Agency, which issued its final decision on March 10, 2015.
On April 8, 2015, Petitioner appealed his removal to the MSPB. Amongst other things, he alleged that the Agency discriminated against him on the bases of national origin (Hispanic), age (54), genetic information (unspecified), and in reprisal for prior EEO activity when the Agency removed him on May 10, 2014.2 The MSPB Administrative Judge (AJ) affirmed Petitioner's removal. In regards to Petitioner's discrimination and retaliation claims, the AJ determined that the MSPB had no authority to review allegations of prohibited discrimination or retaliation when raised in connection with an adverse action based on the revocation of a security clearance.
EEOC Regulations provide that the Commission has jurisdiction over mixed case complaints 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).
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 Petitioner'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
___5/3/16_______________
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.
2 Petitioner retired on May 9, 2014, but the MSPB determined that when the Agency decides to remove an employee and the employee retires on the date of the effective removal, the employee does not lose the right to file an MSPB appeal.
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