The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MUHAMAD SADIQ, DOCKET NUMBER
Appellant, CB-7121-12-0004-V-1
v.
DEPARTMENT OF VETERANS DATE: March 13, 2015
AFFAIRS,
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Eleanor J. Lauderdale, Esquire, Washington, D.C., for the appellant.
Jack P. Di Teodoro, Esquire, Brooklyn, New York, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 Pursuant to the Board’s instructions, the administrative judge issued a
September 18, 2014 recommendation on the appellant’s discrimination and
disparate penalty claims. For the reasons set forth below, we adopt the
administrative judge’s findings and deny the request for arbitration review.
1
A nonprecedential order is one that the Board has determined does not add
sign ificantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
¶2 The pertinent background for this case is set forth in the Board’s Opinion
and Order forwarding this matter to the regional office for an addendum
proceeding on the issues of discrimination based on religion and disparate penalty
raised in the appellant’s request for arbitration review. Sadiq v. Department of
Veterans Affairs, 119 M.S.P.R. 450 (2013).
BACKGROUND AND ANALYSIS
¶3 The agency removed the appellant from his position as a Staff Pharmacist at
the agency’s Lyons campus for making seven errors verifying physicians’
medication orders between March 5, 2009, and May 18, 2009. Id., ¶ 2. In
deciding to remove the appellant, the agency considered his prior discipline for
committing medication errors, which resulted in a 5-day suspension in 2008, and
a 14-day suspension in 2009. 2 Id. On behalf of the appellant, the union
challenged the removal action pursuant to the negotiated grievance procedure
through arbitration. Id.
¶4 The Board deferred to the arbitrator’s finding that the agency did not violate
the collective bargaining agreement when it removed the appellant pursuant to
chapter 75 for the proven misconduct. Id., ¶¶ 8-9. However, the Board vacated
the arbitrator’s decision as to the penalty because the arbitrator failed to cite an
analytical framework for adjudicating the appellant’s claims of discrimination or
disparate penalty or make any findings on these issues. Id., ¶ 12. For this reason,
the Board forwarded the case to the regional office for the administrative judge to
2
In the notice of proposed removal, the agency stated that the appellant’s first
suspension was for 5 days from November 30, 2008, through December 4, 2008, for
making six medication errors between May 27, 2008, and July 14, 2008; and the
appellant’s second suspension was for 14 days in May of 2009, for making five
additional medication errors between October 18, 2008, and January 24, 2009. MSPB
Docket No. CB-7121-12-0004-V-1, Request for Arb itration Review (RAR) File, Tab 10
at 71. Both suspensions were upheld in arbitration. Sadiq v. Department of Veterans
Affairs, MSPB Docket No. CB-7121-12-0004-H-1 (H-1 File), Tab 23 at 52.
3
make recommended findings on those issues under the appropriate legal
standards. Id., ¶¶ 12-13.
¶5 After holding a hearing and considering the parties’ submissions, the
administrative judge recommended that the Board deny the appellant’s request for
review based on his finding that the appellant failed to prove discrimination or
disparate penalty. H-1 File, Tab 34, Recommended Decision (RD) at 6-7, 9,11.
The administrative judge found that there was no evidence of discriminatory
animus and the appellant failed to meet his burden of proving religious
discrimination by a preponderance of the evidence. RD at 6-7. The
administrative judge also found that the appellant failed to prove that he received
a disparate penalty, in part, because the comparators he identified all had one to
four errors, which paled in comparison to the 17 errors he made in less than
1 calendar year. RD at 7. The administrative judge noted that the appellant’s
representative attempted to add a new claim alleging that the agency’s record
keeping regarding discipline was so bad that the agency could never properly
apply Douglas factor 6. 3 RD at 9. The administrative judge found that this claim
should be excluded from consideration because he was not persuaded that the
appellant based his claim on new information, and he failed to raise this claim at
the prehearing conference or in objections to the prehearing conference summary.
Id.
¶6 The appellant filed exceptions to the recommended decision. RAR File,
Tab 19. In his exceptions, the appellant argues that the administrative judge was
biased and that he proved his claims of religious discrimination and disparate
penalty. Id. The agency did not respond to the appellant’s exceptions. Id.
¶7 In making a claim of bias or prejudice against an administrative judge, a
party must overcome the presumption of honesty and integrity that accompanies
administrative adjudicators. Oliver v. Department of Transportation, 1 M.S.P.R.
3
See Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981).
4
382, 386 (1980). A party’s bare allegation of bias or improper conduct by an
administrative judge is insufficient to overcome this presumption. Nettles v.
Department of the Army, 52 M.S.P.R. 181, 184 (1991). Administrative judges
have broad discretion to control proceedings before them, including the discretion
to exclude proffered witness testimony that is irrelevant or repetitive. Butler v.
Department of the Air Force, 73 M.S.P.R. 313, 317 (1997).
¶8 The appellant argues that the administrative judge was biased because he
informed the agency of his doubts about the appellant’s discrimination claim and
he encouraged the parties to settle during the prehearing conference. RAR,
Tab 19 at 4-5. However, as a matter of policy, the Board favors settlement of
appeals and administrative judges may encourage settlement and make honest
appraisals of the likelihood of the success of an appeal if the parties elect to
pursue adjudication. Nettles, 52 M.S.P.R. at 185. As further evidence of bias,
the appellant states that the administrative judge’s demeanor during the hearing
was “abysmal”; he consistently sustained the agency’s objections; he excluded
testimony from the union steward; and he refused to recuse himself from this
case. RAR, Tab 19 at 4-5, 8. An administrative judge’s conduct during the
course of a Board proceeding warrants a new adjudication only if the
administrative judge’s comments or actions evidence “a deep-seated favoritism or
antagonism that would make fair judgment impossible.” Bieber v. Department of
the Army, 287 F.3d 1358, 1362-63 (Fed. Cir. 2002) (quoting Liteky v. United
States, 510 U.S. 540, 555 (1994)). We find that the appellant’s allegations of bias
do not meet this standard. 4
¶9 In his exceptions, the appellant also argues that the administrative judge
“failed to properly characterize” his affirmative defense of religious
4
The appellant’s representative also states that, because of the administrative judge’s
negative attitude, he did not have the appellant testify at the hearing. RAR File, Tab 19
at 5. As explained above, we find that the appellant failed to prove his claim of bias.
We further find that the appellant had the right not to testify and, in exercising that
right, he has shown no error in the actions of the administrative judge.
5
discrimination. RAR File, Tab 19 at 7. He contends that the administrative judge
oversimplified his discrimination claim by focusing only on his desire to take
Fridays off from work to observe the Islamic day of prayer and an incident
involving a request to move his prayer rug and failed to consider the “broader
picture of discrimination.” Id. at 7. He argues that the administrative judge
failed to consider that the agency subjected him to heighted scrutiny because of
his religion and penalized him for his medication order errors “more harshly than
his similarly situated colleagues.” Id. at 7-8. For the reasons explained below,
we conclude that the administrative judge properly considered and rejected the
appellant’s affirmative defense under the relevant legal framework.
¶10 To establish a prima facie case of prohibited employment discrimination
based on disparate treatment, an appellant must show that he: (1) is a member of
a protected class; (2) suffered an adverse employment action; and (3) that the
unfavorable action gives rise to an inference of discrimination. Gregory v.
Department of the Army, 114 M.S.P.R. 607, ¶ 40 (2010). Where, as here, the
agency already has articulated a nondiscriminatory reason for its action, i.e., the
charged misconduct, it has done everything that would be required of it if the
appellant had made out a prima facie case, and whether he in fact did so is no
longer relevant. Id. Thus, the inquiry proceeds directly to the ultimate question
of whether, upon weighing all of the evidence, the appellant has met his overall
burden of proving illegal discrimination. Id. The question to be resolved is
whether the appellant produced sufficient evidence to show that the agency’s
proffered basis for removing him was not the actual reason for its action and that
the agency intentionally discriminated against him based on his religious beliefs.
Gregory, 114 M.S.P.R. 607, ¶ 41.
¶11 The relevant evidence to be considered may include, among other things,
proof that the agency treated similarly-situated employees differently than the
appellant. Id. For employees to be deemed similarly situated for purposes of an
affirmative defense of discrimination based on disparate treatment, all relevant
6
aspects of the appellant’s employment situation must be “nearly identical” to
those of the comparator employees. See RD at 3; see also RAR File, Tab 24 at 2;
Hooper v. Department of the Interior, 120 M.S.P.R. 658, ¶ 6 (2014). Therefore,
the comparators must have reported to the same supervisor, been subjected to the
same standards governing discipline, and engaged in conduct similar to the
appellant’s without differentiating or mitigating circumstances. See id.
¶12 The administrative judge found that the agency made a reasonable offer to
accommodate the appellant’s religious needs and arranged to give him almost
every Friday off, which the appellant does not dispute in his exceptions. RD at 6.
The administrative judge also found that the deciding official credibly testified
that he did not consider the appellant’s religion in making his decision to remove
the appellant. RD at 6-7. The administrative judge further found, among other
things, that the appellant’s own witness testified that his belief that management
was “gunning” for the appellant was based on speculation. RD at 7. The
administrative judge noted that the appellant’s witness did not suggest that
discriminatory animus was the reason that management took action against the
appellant. Id.
¶13 The Board must defer to an administrative judge’s credibility
determinations when, as here, they are based explicitly or implicitly on the
observation of the demeanor of witnesses testifying at a hearing. See Haebe v.
Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). The Board may
overturn such determinations only when it has “sufficiently sound” reasons for
doing so; here the appellant’s arguments merely disagree with the administrative
judge’s demeanor-based findings and do not meet this standard. See id.
¶14 In his request for arbitration review, the appellant does not dispute that the
charged conduct actually occurred, and he offers no new evidence of
discriminatory animus in his exceptions to the recommended decision. See
Sadiq, 119 M.S.P.R. 450, ¶ 2, n.2. The appellant also failed to identify any
similarly-situated employees who received more favorable treatment—that is, any
7
other pharmacist not removed by the agency for making multiple pharmaceutical
errors, after being suspended twice for committing the same misconduct in the
same calendar year. See Adams v. Department of Labor, 112 M.S.P.R. 288, ¶ 13
(2009) (rejecting discrimination defense where employee did not dispute that the
violations occurred and failed to identify similarly-situated comparator
employees); see also Hooper, 120 M.S.P.R. 658, ¶ 6 (to prove an affirmative
defense of disparate treatment based on discrimination, all relevant aspects of the
appellant’s employment situation must be “nearly identical” to those of the
comparator employees). We therefore find that the appellant did not meet his
burden of proving religious discrimination based on disparate treatment. ID at 7.
¶15 In his exceptions, the appellant also challenged the administrative judge’s
penalty determination, claiming that he failed to perform a proper Douglas factor
analysis. 5 RAR, Tab 19 at 9. Where, as here, the agency’s charge is sustained,
the Board will review the agency-imposed penalty only to determine if the agency
considered all the relevant factors and exercised management discretion within
tolerable limits of reasonableness. See Adam v. U.S. Postal Service, 96 M.S.P.R.
492, ¶ 5 (2004), aff’d, 137 F. App’x 352 (Fed. Cir. 2005). In doing so, the Board
must give due weight to the agency’s primary discretion in maintaining employee
discipline and efficiency, recognizing that the Board’s function is not to displace
management’s responsibility but to ensure that managerial judgment has been
properly exercised. Id., ¶ 5. The Board will modify a penalty only when it finds
5
We disagree with the appellant’s argument that the administrative judge’s penalty
analysis was flawed because he attempted to bifurcate the showing of d iscrim ination
from the penalty issue. RAR File, Tab 19 at 7. The standard for determinin g whether
employees are similarly situated for purposes of a discrimination claim d iffers from the
standard for determining whether they are sim ilarly situated for purposes of a disparate
penalty analysis. See Lewis v. Department of Veterans Affairs, 113 M.S.P.R. 657, ¶ 15
n.5 (2010) (noting that the Board’s standard for disparate penalties does not modify
precedent concerning the determination of whether employees are similarly situated
under Title VII discrim ination law).
8
that the agency failed to weigh the relevant factors or that it clearly exceeded the
bounds of reasonableness in determining the penalty. Id. It is not the Board’s
role to decide what penalty it would impose but, rather, to determine whether the
penalty selected by the agency exceeds the maximum reasonable penalty. Id., ¶ 7.
¶16 The decision notice and hearing testimony of the deciding official, as
summarized in the initial decision, show that he properly considered the relevant
Douglas factors in sustaining the appellant’s removal. 6 RAR, Tab 10, Exhibit 7;
RD at 8; Hearing Compact Disk (CD) (testimony of deciding official). The
deciding official testified that he always considers the Douglas factors, and he
concluded that removal was the appropriate penalty for the appellant based on
his prior discipline, the “extraordinarily high number of errors,” and his lack of
remorse for making those errors. Hearing CD (testimony of deciding official).
The deciding official also testified that he considered whether to impose a lesser
penalty but found that removal was reasonable under the circumstances because
the appellant showed no concern about making the errors. Id.
¶17 In his exceptions, the appellant also argues that the administrative judge
focused solely on the number of errors he made and “sanctioned” the agency’s
failure to “perform an in-depth analysis of the errors considered by other
pharmacists.” RAR, Tab 19 at 7-8, 11. In support of his argument, the appellant
argues that the proposing and deciding officials did not consider any comparator
employees and admitted that they failed to apply Douglas factor 6, which
concerns the consistency of the penalty with that imposed on other employees for
the same or similar offenses. See Douglas, 5 M.S.P.R. at 305-06. Our review of
the hearing testimony does not support the appellant’s claim. Hearing CD
(testimony of the proposing and deciding officials). Although the deciding
6
In the decision letter, the deciding official stated that he considered the appellant’s
length of service, his past work record, the seriousness of the charged offenses, his past
discip linary history as cited in the notice of proposed removal, and whether there were
any extenuating circumstances that would justify mitigation. RAR, Tab 10, Exhib it 7
at 1.
9
official testified that he could not recall whether he considered any comparators,
he further testified that he always applies the Douglas factors. Hearing CD
(testimony of deciding official). He also testified that he has spent over 21 years
as a Veterans Affairs Medical Director, and has seen hundreds of cases, but he
had never seen a case involving an employee who made as many errors as the
appellant. Hearing CD (testimony of deciding official).
¶18 To establish disparate penalties, the appellant must show that there is
enough similarity between both the nature of the misconduct and other factors,
such as whether the appellant and the comparator were in the same work unit,
had the same supervisor and/or deciding official, and whether the events
occurred relatively close in time, to lead a reasonable person to conclude that the
agency treated similarly-situated employees differently. RAR, Tab 24 at 2;
Boucher v. U.S. Postal Service, 118 M.S.P.R. 640, ¶ 20 (2012);
Lewis, 113 M.S.P.R. 657, ¶ 15. If an appellant makes this showing, the agency
then must prove a legitimate reason for the difference in treatment.
Boucher, 118 M.S.P.R. 640, ¶ 20.
¶19 The administrative judge considered the evidence, including the witness
testimony, and discerned no basis for finding that the appellant received a
disparate penalty. RD at 7-10. In his exceptions, the appellant argues that other
pharmacists, including his supervisor, were counseled and not removed
“regardless of the egregiousness of their errors,” some of which reached the
patients and caused harm, unlike the appellant’s errors. RAR, Tab 19 at 9.
However, the appellant submits no new evidence or argument proving that any of
his alleged comparators committed similar misconduct, consisting of multiple
medication errors, relatively close in time to the appellant’s misconduct, and had
a history of prior discipline like his. 7 See id. at 9-11.
7
The first comparator, J.K., received no discip line for making one error during h is
probationary period in 2001. Hearing CD (testimony of J.K.). As the result of J.K.’s
error, a patient in a clinical study required hospitalization and treatment for having a
10
¶20 We find that the appellant has not shown that there is enough similarity
between both the nature of the conduct and other factors to lead a reasonable
person to conclude that the agency treated similarly-situated employees
differently. Recognizing that the Board must accord proper deference to the
agency’s primary discretion in managing its workforce, we see no reason to
disturb the administrative judge’s finding that the appellant failed to prove his
claim of disparate penalties. See Douglas, 5 M.S.P.R. at 306. Although the
appellant argues that the administrative judge’s findin gs of fact are not supported
by the record, he ignored certain facts and testimony, and he misapplied the
applicable law, we find the appellant’s arguments are not persuasive. 8 RAR,
Tab 19 at 6, 8-9, 11. We therefore adopt the recommended decision.
serious reaction to receiving an incorrect amount of an experimental medication. RAR
File, Tab 23 at 24, Tab 24 at 6, 21; Hearing CD (testimony of J.K.). Contrary to the
appellant’s claim that J.K.’s error caused the patient’s death, the record includes a
July 23, 2001 email from a physician stating that that patient was “doing well,” after he
was treated for the effects of the medication error and discharged from the hospital.
RAR File, Tab 19 at 10, n.6, Tab 24 at 6, 12. J.K. testified that his error did not cause
the patient’s death; he worked at a different facility than the appellant; he d id not work
for the appellant’s supervisor; and he had no prior discipline. Hearing CD (testimony
of J.K.). The second alleged comparator, E.S., worked for the appellant’s supervisor
and she retired during the supervisor’s investigation into the medication errors she
made in 2010. H-1 File, Tab 23 at 28, Tab 24 at 12-13; Hearing CD (testimony of the
appellant’s supervisor). The third alleged comparator, M.A., was verbally counselled in
2009, by the appellant’s supervisor for makin g a medication error that d id not reach a
patient. H-1 File, Tab 23 at 29; Hearing CD (testimony of M.A.). The fourth alleged
comparator, the appellant’s supervisor, testified in pertinent part that the appellant
accused him of making several errors in 2009; the alleged errors were investigated; and
he received counselling for the one error that was found. Hearing CD (testimony of the
appellant’s supervisor). The fifth comparator, E.W., testified that he made at least a
dozen errors during his 22 years as a pharmacist, and he was not penalized. Hearing
CD (testimony of E.W.). However, E.W. d id not explain the nature of his errors or state
when they occurred. Thus, the appellant’s argument that all of the comparators’
pharmaceutical errors “were ingested by the patients; and ill-effects followed” is not
supported by the record. RAR, Tab 19 at 9.
8
Although the appellant also challenged the administrative judge’s finding that
calcu lating the error rates of pharmacists would be of limited value, the d isputed
findin g is mere dicta related to a record keeping issue not properly before the Board.
RAR File, Tab 19 at 8; RD at 9-10.
11
¶21 Because the appellant failed to prove his affirmative defense of
discrimination based on his religion and his claim of disparate penalty, we deny
his request for review of the arbitrator’s decision affirming the agency’s removal
action.
¶22 This is the final decision of the Merit Systems Protection Board on the
appellant’s request for arbitration review. Title 5 of the Code of Federal
Regulations, section 1201.113(c) (5 C.F.R. § 1201.113(c)).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request further review of this final decision.
Discrimination Claims: Administrative Review
You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See Title 5
of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
submit your request by regular U.S. mail, the address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit your request via commercial delivery or by a method
requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, NE
Suite 5SW12G
Washington, D.C. 20507
You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
12
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.
Discrimination and Other Claims: Judicial Action
If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. If the action involves a claim of discrimination based on race, color,
religion, sex, national origin, or a disabling condition, you may be entitled to
representation by a court-appointed lawyer and to waiver of any requirement of
prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f)
and 29 U.S.C. § 794a.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.