Opinion
CIVIL ACTION NO. 00-1054, SECTION "C" (2).
January 21, 2003.
ORDER AND REASONS
This matter comes before the Court on the defendant's motion for summary judgment as to the remaining discrimination claims. Having considered the record, the memoranda of the parties and the law, the Court has determined that summary judgment is appropriate for the following reasons.
The original plaintiff, Johnny B. Drummond ("Drummond"), filed this suit to appeal the decision of the Merit Systems Protection Board ("MSPB") administrative judge affirming the decision of the United States Corps of Engineers in the New Orleans District ("agency"). The agency had removed the plaintiff from his position due to poor performance under Chapter 43, 5 U.S.C. § 4301 — 4315, and for unacceptable performance and excessive absences without leave under Chapter 75, 5 U.S.C. § 7511 — 7514. The non-discrimination claims were dismissed on summary judgment. (Rec. Doc. 56). The remaining claims for discrimination based on race and disability, and for retaliatory discharged, are entitled to trial de novo under 5 U.S.C. § 7703 (c).
The original plaintiff passed away in 2002. While it is unclear whether a proper substitution for plaintiff has been made, the Court will proceed as if this matter is in a proper posture.
No opposition to this motion has been filed. As noted in its decision on the non-discrimination claims, the Court's review of the MSPB record reveals no evidence of discrimination based on race or disability. There is nothing presented in the Court's record to alter this conclusion. In addition, the Court has been presented with no evidence that the discharge was retaliatory in nature. In fact, the defendant's proof as to existence of legitimate, non-discriminatory reasons for its employment decision is unrebutted, and summary judgment is mandated under Celotex Corp. v. Catrett, 477 U.S. 317 (1986). The defendant's evidence overwhelmingly supports the decision of the MSPB and that decision easily passes de novo review.
To the extent that it is relevant, the Court's earlier Order and Reasons dismissing the non-discrimination claims is adopted herein. (Rec. Doc. 56).
Accordingly,
IT IS ORDERED that the defendant's motion for summary judgment on the discrimination claims is GRANTED. The decision of the Merit Systems Protective Board affirming the agency's removal from office is AFFIRMED in all respects relating to the discrimination claims made by the plaintiff.