03A20082_r
09-18-2002
Shirley A. Adkison, Petitioner, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Shirley A. Adkison v. Department of the Navy
03A20082
September 18, 2002
.
Shirley A. Adkison,
Petitioner,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Petition No. 03A20082
MSPB No. AT-0752-00-0250-M-1
DENIAL OF CONSIDERATION
On July 24, 2002, Shirley A. Adkinson (hereinafter the petitioner),
initiated a petition to the Equal Employment Opportunity Commission
(EEOC) for review of the final order of the Merit Systems Protection Board
(MSPB) dated June 26, 2002, concerning her removal from the agency.
The record indicates that on December 30, 1999, petitioner filed an appeal
with the MSPB from an agency action removing her from her position as
Supply Technician, GS-6, on the grounds that her security clearance
had been revoked. The Board issued an initial decision on April 10,
2000, upholding the agency's removal action. The petitioner filed a
petition for review of that decision which the Board denied in a Final
Order dated September 29, 2000.
On October 30, 2000, petitioner filed a petition with the Commission
on this same matter. The Commission denied the petition noting that
petitioner had previously filed an appeal of the Board's decision with
the United States Court of Appeals for the Federal Circuit. Adkison
v. Department of the Navy, EEOC Petition No. 03A10021 (December 8, 2000).
On April 30, 2001, the United States Court of Appeal for the Federal
Circuit issued a decision remanding the issue of petitioner's removal to
the MSPB for further proceedings. Specifically, the Court noted that
the evidence of record established that an Administrative Law Judge
(ALJ) of the Department of the Navy previously issued a decision in the
petitioner's appeal of the revocation of her security clearance and
that the ALJ reinstated the security clearance. The Court concluded
that because the only basis for the agency's removal action was the
revocation of petitioner's security clearance, her case should be
remanded to the Board for further proceedings.
Subsequently, on August 29, 2001, an MSPB AJ issued an initial decision
which reversed the agency's removal action and ordered the agency to
reinstate the petitioner to her former position. The AJ's decision also
indicated that throughout the appeal process, petitioner had maintained
that the agency's action was based on discrimination and reprisal. The AJ
noted, however, that the Board has previously held that it is precluded
from reviewing allegations of prohibited discrimination and reprisal when
such affirmative defenses relate to the revocation of a security clearance
citing Pangarova v. Department of the Army, 42 M.S.P.R. 319 (1989).
On October 27, 2001, petitioner filed a petition for review of the
Board's August 29, 2001 initial decision reversing the agency's removal
action against her. In its June 26, 2002 final order, the MSBP denied
petitioner's request for review of the initial decision on the grounds
that it failed to meet the statutory criteria. Subsequently, on July
24, 2002, petitioner initiated the instant petition to the Commission
for review of the Board's final order dated June 26, 2002.
A review of the record in this matter reveals that neither the AJ nor the
Board made any determinations regarding discrimination and/or reprisal
with respect to the agency actions against petitioner. Rather, the AJ
concluded that the MSPB had no jurisdiction over petitioner's claims
of discrimination regarding the revocation of her security clearance.
EEOC Regulations provide that the Commission has jurisdiction over claims
of discrimination raised in connection with an action appealable to
the MSPB. See 29 C.F.R. � 1614.302. Because the MSPB did not address
any matters within the Commission's jurisdiction, the Commission denies
consideration of the petition in this case.
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
September 18, 2002
__________________
Date