0320160064
10-03-2016
George M.,1 Petitioner, v. Eric K. Fanning, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
George M.,1
Petitioner,
v.
Eric K. Fanning,
Secretary,
Department of the Army,
Agency.
Petition No. 0320160064
MSPB No. DC-0752-16-0413-I-1
DENIAL OF CONSIDERATION
On August 31, 2016, Petitioner filed a petition with the Equal Employment Opportunity Commission asking for review of a final decision 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
At the time of the events at issue, Petitioner worked as an Intelligence Specialist, GG-0132-13, at the Agency's National Ground Intelligence Center (NGIC) in Charlottesville, Virginia. Petitioner's position required him to maintain access to classified information. On October 30, 2015, the NGIC Commander suspended Petitioner's access to classified information. Effective February 6, 2016, the Agency indefinitely suspended Petitioner from his position for failing to maintain access to classified information.
On March 7, 2016, Petitioner filed a mixed case appeal with the MSPB alleging that the Agency discriminated against him on the bases of sex (male) and age (at least 40 years old) when, effective February 6, 2016, it indefinitely suspended him from his position.
On June 30, 2016, based on the written record,2 an MSPB Administrative Judge (AJ) issued an initial decision affirming Petitioner's indefinite suspension but declining to adjudicate the merits of his allegations of discrimination. Citing Board precedent, the MSPB AJ found that she did not have the authority to consider Petitioner's allegations of discrimination in the context of an adverse action based on the suspension of a security clearance.3
Petitioner then filed the instant petition. In his petition, Petitioner asserts that the MSPB dismissed his appeal for lack of jurisdiction, that the Commission has jurisdiction over his allegations of discrimination, and that the Commission should process the matter as an EEO complaint.
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).
Here, we emphasize that the MSPB did not dismiss Petitioner's appeal for lack of jurisdiction.4 Instead, the MSPB affirmed Petitioner's indefinite suspension but explicitly found that it lacked the authority to consider the merits of his 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 generally Zula G. v. Dep't of Def., EEOC Petition No. 0320150068 (Feb. 18, 2016); Petitioner v. Dep't of Def., EEOC Petition No. 0320150005 (Feb. 19, 2015); Adkison v. Dep't of the Navy, EEOC Petition No. 03A20082 (Sept. 18, 2002) (denied consideration of the petition for review where the MSPB found that it was precluded from reviewing petitioner's allegation of discrimination in the context of a removal based on the revocation of petitioner's 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
_10/3/16_________________
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 withdrew his request for a hearing.
3 The MSPB AJ clarified: "[Petitioner]'s security clearance was not suspended, but rather his access to classified information was suspended . . . For the purposes of this case, there is no practical difference because his position requires access to classified information . . . [Petitioner] does not contest this fact."
4 When the MSPB dismisses a mixed case appeal for lack of jurisdiction, an agency is required to process the allegations of discrimination as a "non-mixed" matter pursuant to 29 C.F.R.
� 1614.105 et seq. See generally 29 C.F.R. � 1614.302(b).
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