Shirley A. Adkison, Petitioner,v.Gordon R. England, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionSep 18, 2002
03A20082_r (E.E.O.C. Sep. 18, 2002)

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had been revoked.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