03A20016
04-25-2002
John F. Elizondo, Petitioner, v. Gordon R. England, Secretary, Department of the Navy, Agency.
John F. Elizondo v. Department of the Navy
03A20016
04-25-02
.
John F. Elizondo,
Petitioner,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Petition No. 03A20016
MSPB No. SF0752010219I1
DECISION
On November 21, 2001, petitioner filed a timely 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, as amended. 42 U.S.C. � 2000e, et seq. Petitioner claimed that
the agency discriminated against him on the basis of national origin
(Hispanic) by terminating him from his position as Range Control Branch
Head. On January 26, 2001, petitioner filed a mixed case appeal with
the MSPB. After a hearing, the Administrative Judge found that the
agency did not discriminate against petitioner as alleged. The Board
denied petitioner's petition for review. This petition followed shortly
thereafter.
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 an
incorrect interpretation of any applicable law, rule, regulation or policy
directive, or is not supported by the evidence in the record as a whole.
29 C.F.R. � 1614.305(c).
Petitioner's removal was based on a charge of failure to follow
instructions. According to the notice of removal and supporting
documentation, petitioner was responsible for certifying firing range
safety officers, and that he certified certain officers who had neither
attended firearm safety classes nor passed written examinations. In so
doing, petitioner had failed to follow the instructions of his supervisor,
who directed him to ensure that only those individuals who obtained the
necessary certification would be allowed to monitor individuals on the
firing range. A Los Angeles police officer had been shot and killed on
the range in March of 2000, and the safety officer on duty at the time
was neither trained nor certified. Petitioner had told his supervisor
that the safety officer had been certified. The ensuing investigative
report contradicted what petitioner had told the supervisor regarding the
certification of the safety officer, and ultimately led to petitioner's
removal.
To prevail in a disparate treatment claim such as this, petitioner must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). As a first
step, he must generally establish a prima facie case by demonstrating
that he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-17
(1983).
To ultimately prevail, petitioner must prove, by a preponderance
of the evidence, that the agency's explanation is a pretext for
discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530
U.S. 133 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519
(1993). This petitioner has not done. The reasons for the termination,
as set forth in the notice of proposed removal, have been corroborated
by testimony from petitioner's supervisor and other agency officials,
and by numerous documents. The record overwhelmingly establishes that
the loss of life that occurred on the firing range in March 2000 directly
resulted from petitioner's failure to ensure that firing range safety
officers were trained and certified. Petitioner has not presented any
evidence which contradicts the testimony put forth by his supervisor,
or which undermines the supervisor's credibility as a witness.
Based upon a thorough review of the record and for the foregoing reasons,
it is the decision of the Commission to concur with the final decision
of the MSPB finding no discrimination. The Commission finds that the
MSPB's decision constitutes a correct interpretation of the laws, rules,
regulations, and policies governing this matter and is supported by the
evidence in the record as a whole.
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
______04-25-02____________
Date