03a60015
02-21-2006
Henry Heffernan, Petitioner, v. Mike Leavitt, Secretary, Department of Health and Human Services, Agency.
Henry Heffernan,
Petitioner,
v.
Mike Leavitt,
Secretary,
Department of Health and Human Services,
Agency.
Petition No. 03A60015
MSPB No. DC-0752-04-0756-I-1
DECISION
INTRODUCTION
On October 27, 2005, 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.
BACKGROUND
Petitioner, a Chaplain, GS-0060-12, at the agency's Spiritual Ministry
Department, Warren G. Magnusson Clinical Center at the National Institutes
of Health in Bethesda, Maryland, alleged that he was discriminated
against on the bases of religion (Catholic) and reprisal (prior Title
VII activity) when, on July 30, 2004, he was removed from his position.
The agency's removal decision based its action on the charges of: (1)
failure to document patient visits; (2) failure to comply with training
requirements; and (3) failure to follow supervisory instructions.
The matter went before a MSPB Administrative Judge (MSPB AJ). During
a pre-hearing conference, petitioner's attorney sought permission
to present evidence at hearing of purported incidents of disparate
treatment of petitioner by agency management that was allegedly based
on his religion and/or prior protected activity. This evidence was
proffered in support of petitioner's claim that the agency's stated
reasons for the removal decision were pretext for discrimination.
The MSPB AJ ruled this pretext evidence as inadmissible, reasoning
that it would only be relevant after petitioner made out a prima facie
case of discrimination. The MSPB AJ concluded that because she did not
believe there was evidence of similarly situated individuals who were
treated differently with regard to the removal action, petitioner could
not make a prima facie case of discrimination. As such, the MSPB AJ
concluded that since no prima facie case could be made, the proffered
pretext evidence was inadmissible at hearing.
Following the hearing, the MSPB AJ issued an initial decision on January
24, 2005, in which she found that there was insufficient evidence to
uphold the first specification (failure to document patient visits)
advanced by the agency for the removal. However, the MSPB AJ upheld
the second two specifications and found that, even without the first
specification, they were sufficient to sustain the removal decision. As
to petitioner's claim of discrimination based on religion, the MSPB AJ
found that he failed to establish a prima facie case of discrimination
because he could not show that there were similarly situated comparators.
As to petitioner's claim of reprisal, the MSPB AJ determined that
petitioner did not show any nexus between the protected activity and
the removal action.
Petitioner filed a petition for review with the Board. On September 26,
2005, the Board issued its Final Order denying the petition. Petitioner
filed the instant petition challenging the decision of the Board.
ANALYSIS AND FINDINGS
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). After considering petitioner's contentions and
thoroughly reviewing the record, the Commission finds that the case is
not in posture for a decision.
Establishing a Prima Facie Inference of Discrimination
The MSPB AJ ruled that evidence offered by petitioner to prove pretext
was inadmissible because she did not believe that petitioner could
establish a prima facie case of discrimination because he did not
proffer any comparators who were similarly situated with regard to the
removal action. In the transcript of the pre-hearing conference at 12-13,
the MSPB AJ discussed her ruling in the following exchange:
JUDGE: Comparison employees are people in the same work unit
charged with the same three things who were treated less harshly,
and there are no such employees.
ATTORNEY FOR PETITIONER: We intend to present [evidence of ]
Rabbi [name], who engaged in the same type of conduct as the-
JUDGE: But not all three, things. Correct?
. . .
JUDGE: And, of course, first of all, he [the Rabbi] wasn't
disciplined at all for any of this. Right?
. . .
ATTORNEY FOR PETITIONER: He wasn't. That's the point.
JUDGE: --he's not a comparison employee.
The MSPB AJ concluded that because petitioner could provide no comparator
evidence, as she defined it, he could not establish a prima facie case
of discrimination.
The Commission finds that the MSPB AJ erred in several respects in
her analysis of petitioner's prima facie burden in this case. First,
she incorrectly determined that the only way petitioner could establish
a prima facie case of discrimination was through comparator evidence.
In general, disparate treatment claims are examined under the three-part
analysis first enunciated in McDonnell Douglas Corporation v. Green, 411
U.S. 792 (1973). For petitioner to prevail, he must first establish
a prima facie case of discrimination by presenting facts that, if
unexplained, reasonably give rise to an inference of discrimination,
i.e., that a prohibited consideration was a factor in the adverse
employment action. McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The precise
requirements of a prima facie case can vary depending on the context
and were "never intended to be rigid, mechanized, or ritualistic."
Furnco, 438 U.S. at 576. It is not necessary for the petitioner to rely
strictly on comparative evidence in order to establish an inference
of discriminatory motivation necessary to support a prima facie case.
O'Connor v. Consolidated Coin Caterers Corp., 116 S.Ct. 1307 (1996);
Enforcement Guidance on O'Connor v. Consolidated Coin Caterers Corp.,
EEOC Notice No. 915.002, n.4 (September 18, 1996); Carson v. Bethlehem
Steel Corp., 82 F.3d 157 (7th Cir. 1996). This is particularly true
when an employee occupies a somewhat unique position like the one at
issue where there are few, if any, potential comparators. Therefore,
while comparator evidence is one method of establishing an initial
inference of discrimination, it is not the only way.
In applying this flexible standard, we find that petitioner
established his prima facie case of discrimination based on religion
and/or retaliation. Petitioner may establish a prima facie case of
discrimination based on his religion by demonstrating: 1) that he is
a member of a protected group; 2) that he was subjected to an adverse
employment action; 3) and that there appears to be a connection between
his protected group and the adverse action.
In the case at hand, the evidence of record clearly establishes that the
central point of contention between petitioner and agency management that
led to the events at issue was what petitioner perceived as incongruence
between the practices and teachings of his Catholic faith and the
practices, including the concept of "generic chaplaincy," advocated by his
supervisor, a Methodist minister. Petitioner argued that beginning in
1999, he had repeatedly expressed his belief that the Clinical Center's
Catholic patients were unfairly shortchanged based on management's
actions. He noted, for example, that under the "generic chaplaincy"
concept, a non-Catholic clergy member could minister to Catholic patients.
Petitioner asserted that it was his belief that, according to the tenets
of the Roman Catholic church, this type of chaplaincy would not constitute
adequate spiritual care for Roman Catholic patients, and the evidence
shows that he raised this issue frequently with his supervisor.
Petitioner asserted that his supervisor, in an attempt to advance the
multi-faith generic chaplaincy concept at the Clinical Center, had
required petitioner, despite his 40 years as a priest and ten years
at the Clinical Center, to take "entry-level" pastoral care training.
One of the reasons provided for the removal action by his supervisor was
petitioner's failure to fully comply with these training requirements.
Petitioner apparently argued to his supervisor that the training was
unnecessary because the Archdioceses of Washington had already certified
him as fully qualified to perform Catholic rituals and provide spiritual
guidance to Catholic patients. In addition, petitioner argued that the
training requirement, which would have necessitated petitioner being
away from the Clinical Center, further reduced the time he was able to
minister to Catholic patients, who he believed were already under-served.
As a result of these conflicts, petitioner was issued a fourteen-day
suspension and the removal action at hand for failure to comply with
the training requirements. During his fourteen-day suspension, his
supervisor directed petitioner to turn in his office key. His failure
to do so was used as the basis of the third charge in the removal action.
Therefore, based on the totality of the evidence of record, we find that
petitioner has established a prima facie inference of discrimination
based on religion.
Moreover, we note that petitioner did attempt to introduce some comparator
evidence, at least on the training issue, by offering to prove that
a rabbi under the same supervisor was treated more favorably than
petitioner. The MSPB AJ, however, discounted this proffer of evidence
because the rabbi was not subjected to disciplinary action at all and was
not charged with the exact same three charges as petitioner. With regard
to the rabbi not being charged with any disciplinary action, we agree
with petitioner's argument that this very lack of discipline would
be highly probative of discriminatory disparate treatment if he could
establish that he and the rabbi were similarly situated. The MSPB AJ,
however, did not afford petitioner the opportunity to provide that proof.
In addition, to be similarly situated, a comparator does not have to be
charged with the exact same three charges. Petitioner can attack each
charge individually as discriminatory even if he has different evidence,
including different comparators, to support his claims.
Petitioner also alleged that he was subjected to unlawful retaliation.
Specifically, in a reprisal claim, and in accordance with the burdens
set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for
Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d
222 (1st Cir. 1976), and Coffman v. Department of Veteran Affairs, EEOC
Request No. 05960473 (November 20, 1997), a petitioner may establish a
prima facie case of reprisal by showing that: (1) he or she engaged in a
protected activity; (2) the agency was aware of the protected activity;
(3) subsequently, he or she was subjected to adverse treatment by the
agency; and (4) a nexus exists between the protected activity and the
adverse treatment. Whitmire v. Department of the Air Force, EEOC Appeal
No. 01A00340 (September 25, 2000).
The record is clear that petitioner engaged in protected activity of
which his supervisor was keenly aware. Petitioner sought EEO counseling
on both the May 2004 suspension and an earlier January 2004 suspension.
In addition, as petitioner indicated, since 1999, he has continuously
expressed to his supervisor and others the belief that many management
decisions have negatively affected those of the Catholic faith. The
record shows that as recently as December 2003, petitioner expressed his
concerns that Catholic patients were being short-changed at the Clinical
Center to a survey team from the Joint Commission on Accreditation of
Healthcare Organizations (JCAHO), and immediately afterwards (January
2004) received a 5-day suspension from his supervisor for failure to
follow supervisory instructions by saying Mass during his scheduled days
off despite contrary supervisory instruction. The record shows that in
his response to the proposed 5-day suspension, petitioner wrote that
he had not followed supervisory instructions in this matter because
they "infringe on the religious liberty of U.S. citizens, and...[are]
imposed to demean and punish subordinates for disagreements on religious
doctrine and practice." Therefore, the record is clear that petitioner
engaged in protected activity by both opposing what he perceived to be
unlawful discriminatory employment practices and by participating in
the EEO process by seeking EEO counseling. The record also establishes
that his supervisor was acutely aware of petitioner's oppositional
activities as well as his EEO counseling. Petitioner was issued the
proposed Notice of Removal on June 7, 2004, and the final decision to
remove petitioner was issued on July 28, 2004. Factoring in, among other
things, the proximity in time between petitioner's protected activity and
the proposed removal, we find that the evidence of record is sufficient
to establish an inference that there was a nexus between those protected
activities and the removal action sufficient to establish a prima facie
case of unlawful retaliation.
Pretext Evidence Admissibility
Since the Commission finds that petitioner established his prima
facie case of discrimination based on religion and his protected EEO
activity and the record shows that the agency articulated legitimate,
non-discriminatory reasons for its actions, the final burden shifts to
petitioner to show that the agency's proffered reasons were pretext for
discrimination. Petitioner argues that the MSPB AJ erred in finding that
evidence he sought to introduce to establish pretext was inadmissible.
We agree. Petitioner should have been provided the opportunity to
persuade the fact finder, by a preponderance of the evidence, that the
agency acted on the basis of a prohibited reason. In particular, since
the MSPB AJ only upheld two of the three justifications for the removal
action, petitioner should have been allowed to present evidence that those
two reasons were pretextual. For example, petitioner sought to show that
a rabbi at the Clinical Center, under the same supervisor, was allowed
more latitude and granted more exceptions from the training requirements
than he was. Petitioner also sought to introduce as background evidence
other examples of disparate treatment that he asserted were relevant
to establishing his supervisor's discriminatory animus towards him.
As such, we find that a remand for the taking of additional evidence on
the issue of pretext on both the religious discrimination and reprisal
claims is warranted.
CONCLUSION
Based upon a thorough review of the record, and pursuant to 29 C.F.R. �
1614.305(d), it is the decision of the Commission to refer the matter back
to the Board for the taking of additional evidence regarding pretext.
Upon completion, the Board, without issuing a decision, shall forward
the supplemental record to the Commission for review and a decision on
the merits.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (X0900)
The Commission has referred your case back to the Merit Systems Protection
Board so that it can take additional evidence. Upon receipt of that
evidence, the Commission will issue a decision on the merits of your case.
You may have the right to file a civil action in an appropriate United
States District Court after one hundred and eighty (180) calendar days
from the date on which you filed your Petition for Review with the
Commission, even if there has been no decision by the Commission on the
merits of your case. 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
February 21, 2006
__________________
Date
7
03A60015
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036