0320090047
05-05-2009
David A. Horn, Petitioner, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.
David A. Horn,
Petitioner,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Petition No. 0320090047
MSPB No. SF0752080314I1
DECISION
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 (Title VII),
as amended, 42 U.S.C. � 2000e et seq.
At the time of the events at issue, petitioner had been employed by the
agency as an Air Reserve Technician (ART) Pilot since 1998. He was
assigned to the 79th Air Refueling Squadron at Travis Air Force Base
(AFB), California, flying KC-10 refueling planes. The record establishes
that in his pilot position, he was a full-time civilian employee, as
well as a member of the Air Force reserve, and as a condition of his
employment, was required to maintain his qualifications as a military
pilot.
In an appeal to the MSPB, petitioner alleged that he was discriminated
against on the basis of religion (Agnostic) when he was removed from his
position of Pilot, YA-2181-01, effective February 22, 2208, for failure
to meet a condition of his employment.
Briefly, in February 2007, a Progress Review Board at Travis AFB was
dissatisfied with petitioner's flying skills and recommended that
petitioner undergo a military Flying Evaluation Board (FEB). The FEB
met, took testimony, petitioner participated and was represented by
counsel, and then issued their findings. The FEB found that petitioner had
"demonstrated an inability to maintain a consistent level of proficiency"
and "failed to meet training standards," and unanimously recommended that
he be disqualified from flying. The record indicates that the four-member
FEB was comprised of four military officers, three from outside Travis AFB
and did not include anyone in petitioner's chain of command. The FEB's
recommendation was affirmed by a January 4, 2008 order of the Chief of
Staff of the Secretary of the Air Force, which stated that petitioner was
"permanently disqualified for aviation service".
As a result of this determination, on January 22, 2008, petitioner's
supervisor proposed his non-disciplinary removal in no less than 30 days.
The proposal stated that petitioner had failed to maintain a condition
of his employment as a pilot evidenced by his permanent disqualification
from aviation service. His removal became effective on February 22,
2008, and petitioner appealed to the MSPB.
Petitioner did not request a hearing and an MSPB Administrative
Judge (AJ) issued an initial decision upholding the removal. The
AJ found that a determination by a military FEB as to petitioner's
qualifications for flying military refueling planes was a matter
uniquely within the expertise of the military, and the AJ deferred to
that determination. Thus, the AJ sustained the agency's charge of failing
to maintain a condition of employment. The AJ also found that petitioner
did not prove his claims of discrimination based on religion. Petitioner
sought review by the full Board, which denied his petition. Petitioner
then filed the instant petition.
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).
In support of his discrimination claim, petitioner asserted that certain
individuals within his chain of command in both his civilian and military
capacities orchestrated his removal because of discriminatory animus.
Specifically, he alleged these individuals called for the FEB and
testified negatively before it in order to justify his removal because
he is an agnostic and had published articles expressing his religious
views in a local newspaper in 2002-2003, while they were outspoken on
the job regarding their strong Christian religious beliefs. On appeal
petitioner also claimed that he had expressed his disagreement with the
policy of his Wing which represented only one religious perspective in
prayers during meetings and ceremonies at Travis AFB.
Based upon a thorough review of the record, it is the decision of the
Commission to concur with the final decision of the MSPB finding no
discrimination. As an initial matter, we note that petitioner did not
request a hearing before the MSPB and so did not take the opportunity to
examine and cross-examine witnesses in support of his claim. Based on
the evidence of record, we find that the preponderance of the evidence
simply does not support petitioner's claim of discrimination. The FEB
was comprised of military officers from outside Travis AFB and were not
in petitioner's chain of command, and their decision was supported by the
office of the Secretary of the Air Force. More significantly, the written
decision of the FEB chronicles detailed specifics about petitioner's
performance difficulties as a military pilot over a significant period
of time and included negative evaluations by officers other than the
ones named by petitioner as responsible for the discrimination. We also
note that on appeal, petitioner has not provided evidence or argument
to counter the agency's assertion that he had significant performance
problems. Based on our thorough review of the record, we conclude that
petitioner has not proven, by a preponderance of the evidence, that the
agency proffered reasons for its decision to remove him was a pretext
for discrimination.
Accordingly, 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 (W0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
May 5, 2009
__________________
Date
2
0320090047
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0320090047