                          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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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.
