F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
MAR 18 2003
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
PHILLIP G. DAUGHERTY,
Plaintiff - Appellant,
v. No. 02-7015
TOMMY G. THOMPSON, Secretary
of Department of Health & Human
Services; and DEPARTMENT OF
HEALTH AND HUMAN SERVICES,
Defendants - Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
(D.C. NO. 01-CV-168-P)
Submitted on the Briefs:
Steven M. Angel, Angel & Associates, LLC, Oklahoma City, Oklahoma, for
Plaintiff - Appellant.
Sheldon J. Sperling, United States Attorney, and Jeanette Windsor, Assistant
United States Attorney, Muskogee, Oklahoma, for Defendants - Appellees.
Before KELLY , ANDERSON , and MURPHY , Circuit Judges.
ANDERSON , Circuit Judge.
This case is a “mixed case” under the Civil Service Reform Act, 5 U.S.C.
§ 7702, involving an appeal to the Merit Systems Protection Board (“MSPB”)
from an adverse personnel action, coupled with an allegation that the adverse
personnel action was based upon prohibited discrimination. Plaintiff/appellant,
Phillip G. Daugherty, invoking Title VII, 42 U.S.C. § 2000e–2000e-17, and the
Rehabilitation Act, 29 U.S.C. § 794, appeals the district court’s grant of summary
judgment to defendant Tommy G. Thompson, Secretary of the Department of
Health & Human Services, on Daugherty’s claim that he was ultimately removed
from employment based on discrimination because of disability and in retaliation
for his challenge of his initial removal. Daugherty also appeals the denial of his
motion for partial summary judgment on his claim that the MSPB’s decision
upholding his removal was arbitrary and capricious, contrary to law, and
unsupported by substantial evidence. *
We affirm.
BACKGROUND
In 1982, while serving in the Marine Corps, Daugherty was convicted of the
following violations of the Uniform Code of Military Justice: (1) Article
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
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128–assault; (2) Article 134–(a) unlawful entry into quarters and (b) breaking and
entering quarters with intent to commit an assault; and (3) Article 134–indecent
assault with intent to gratify his lust and/or sexual desires and being drunk and
disorderly. At that time, Daugherty was an alcoholic. Daugherty left the Marine
Corps in 1983. In 1987, Daugherty received treatment for his alcoholism and has
apparently remained sober ever since.
Daugherty was initially employed by the federal government as a security
guard from 1983 to 1984. As part of that initial federal employment, the Office
of Personnel Management conducted a background check of Daugherty. That
background investigation revealed the military offenses described above. In
1984, Daugherty left the employment of the federal government and began
working as a nurse.
On November 28, 1990, Congress passed the Indian Child Protection and
Family Violence Prevention Act, 25 U.S.C. §§ 3201-11. 1
Under the Act:
The Secretary [of the Interior] and the Secretary of Health and
Human Services shall–
(1) compile a list of all authorized positions within their
respective departments the duties and responsibilities of which
involve regular contact with, or control over, Indian children,
(2) conduct an investigation of the character of each individual
who is employed, or is being considered for employment, by the
1
The Act was amended on December 27, 2000. We refer to the 1994
version of the Act, which was in effect during the time relevant to this case.
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respective Secretary in a position listed pursuant to paragraph (1),
and
(3) prescribe by regulations minimum standards of character
that each of such individuals must meet to be appointed to such
positions.
25 U.S.C. § 3207(a). The Act further provides that:
The minimum standards of character that are to be prescribed under
this section shall ensure that none of the individuals appointed to
positions described in subsection (a) of this section have been found
guilty of, or entered a plea of nolo contendere or guilty to, any
offense under Federal, State or tribal law involving crimes of
violence; sexual assault, molestation, exploitation, contact or
prostitution; or crimes against persons.
25 U.S.C. § 3207(b). At the time relevant to this case, HHS had proposed
regulations implementing the Act, but they were not finalized and in effect. HHS
created a non-exclusive list of positions subject to the Act and published it in
October 1994, and updated it in March 1997. Among the positions listed as
having regular contact with children was that of nurse.
In 1996, Daugherty began working for the Oklahoma City Area Indian
Health Service (“IHS”) as a clinical nurse, designated a GS-0610-09, at the W.W.
Hastings Indian Hospital in Tahlequah, Oklahoma. The IHS is an agency under
HHS. As part of his application for employment, Daugherty was required to
complete a form containing the following two questions:
1) Have you ever been arrested for or charged with a crime
involving a child?
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2) Have you ever been found guilty of, or entered a plea of nolo
contendere (no contest) or guilty to, any offense under Federal,
State, or tribal law involving crimes of violence, sexual
assault, molestation, contact or prostitution, or crimes against
persons?
Daugherty responded “No” to each question. Appellant’s App. Vol. II at 449.
Daugherty received good evaluations of his work at the hospital. In September,
1998, however, a female patient accused Daugherty of improperly fondling her.
The Office of the Inspector General (“OIG”) investigated the complaint, and
presented the complaint to the Cherokee County District Attorney, who declined
to prosecute the case.
Sometime in early 1999, Woodrow Kinney, the Director of the Division of
Personnel Management and Training, discovered Daugherty’s military record,
including his convictions, “among a lot of investigations that had not been
processed in our office.” Id. at 632. He also discovered that Daugherty had not
revealed the existence of those convictions on his application for employment.
Accordingly, on February 19, 1999, Kinney sent a memorandum to Daugherty
notifying him that the HHS proposed to remove him from federal service because
of:
1. Loss of qualifications requirements and ineligibility to perform
the duties of the position for which you were hired due to violation
of [the Act]
2. Falsification of Application for Federal Employment.
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Id. at 440. Daugherty was given ten days in which to respond. After receiving
and considering Daugherty’s oral responses, on March 26, 1999, Luke McIntosh,
the Associate Director of the Office of Administration and Management, informed
Daugherty in a memorandum that he would sustain the proposed removal “to
promote the efficiency of the service effective close of business March 29, 1999.”
Id. at 435. Kinney and McIntosh considered moving Daugherty to another
position in the Tahlequah service unit that did not involve regular contact with
children, but determined that no such position was available.
On April 27, 1999, Daugherty filed an appeal of his removal with the
MSPB. He alleged that, during the course of his employment, he had only had
contact with children four or five times, that his prior offenses, while serious,
were the result of a disability (alcoholism), that he had led a productive and
functional life since 1987, and that he had performed well in his job. Thus, he
argued, he was wrongfully discharged because of his disability.
An administrative hearing was held on June 28, 1999, and, on August 26,
1999, the administrative law judge (“ALJ”) issued a decision reversing the
removal decision, concluding that HHS had removed Daugherty based upon its
erroneous interpretation of the Act. 2
The ALJ directed that Daugherty be
In particular, the ALJ concluded that HHS had relied upon proposed, as
2
opposed to final, agency rules and internal guidelines in determining that
(continued...)
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reinstated, which he was in August 1999. The ALJ further found that Daugherty
had failed to establish that HHS’s action was discriminatory because of
Daugherty’s claimed disability.
2
(...continued)
Daugherty must be removed, and therefore its decision had “limited persuasive
effect.” Initial Decision at 16, Appellant’s App. Vol. I at 197. Then, the judge
noted that “the Act is silent as to whether an adjudicating official has the
discretion to consider other factors when determining whether an employee
should be removed, pursuant to the Act.” Id. The judge further found the
legislative history did not resolve the question. The ALJ then turned to certain
regulations promulgated by the Department of the Interior, Bureau of Indian
Affairs, which were in effect at the time of Daugherty’s removal and which, while
admittedly not controlling, were promulgated pursuant to the Act. Those
regulations directed the adjudicating official to:
consider prior conduct in light of: (1) [t]he nature and seriousness of
the conduct in question; (2) [t]he recency and circumstances
surrounding [that] conduct . . .; (3) [t]he age of the individual at the
time of the incident; (4) [s]ocietal conditions that may have
contributed to the nature of the conduct; (5) [t]he probability that the
individual will continue the type of behavior in question; and (6)
[t]he individual’s commitment to rehabilitation and a change in the
behavior in question.
25 C.F.R. § 63.17(f)(1998). Considering those factors, the ALJ determined that
Daugherty’s prior convictions did “not render him ineligible for employment in
the position of Clinical Nurse.” Initial Decision at 18, Appellant’s App. Vol. I at
199.
The ALJ also concluded that HHS failed to establish that Daugherty had
falsified his employment application. The ALJ found Daugherty credible when he
testified that he believed he answered the questions on his employment
application truthfully because he did not equate military courts with “Federal,
State or tribal law” and he did not understand the definitions of “crimes of
violence” or “crimes against persons.”
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HHS appealed that decision to the full MSPB, which consolidated
Daugherty’s appeal with three others involving similar facts and issues under the
Act. 3 The full MSPB affirmed the ALJ’s findings and decision with respect to the
claimed discrimination, but reversed the ALJ’s decision on the proper
interpretation of the Act, finding that the ALJ erred in relying on regulations
promulgated by the Bureau of Indian Affairs (“BIA”) and in finding that the
adjudicating agency official had discretion to consider mitigating factors in
determining whether § 3207 had been violated. 4
Daugherty then appealed his discrimination claim to the Equal Employment
Opportunity Commission, which concurred in the decision of the full MSPB. The
EEOC found that “the agency’s articulated reason for [Daugherty’s] removal was
based on a statutory requirement which made [Daugherty] ineligible for the
position . . . [which was] a legitimate non-discriminatory reason for its action.”
Daugherty v. Satcher , No. 03A10005, 2001 WL 236919 at *4 (E.E.O.C. 2001).
Two of the consolidated appeals which the MSPB considered along with
Daugherty’s appeal were affirmed by the United States Court of Appeals for the
Federal Circuit. Delong v. Dep’t of Health & Human Servs. , 264 F.3d 1334 (Fed.
3
See Johnson v. Dep’t of Health & Human Servs., 86 M.S.P.R. 501 (2000).
HHS apparently did not challenge the propriety of the ALJ’s refusal to
4
sustain the charge that Daugherty had falsified his employment application, so the
full MSPB did not address the issue.
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Cir. 2001); Johnson v. Dep’t of Health & Human Servs. , No. 00-3435, 2001 WL
706935 (Fed. Cir. June 22, 2001) (unpublished).
Meanwhile, after Daugherty had been reinstated pursuant to the ALJ’s
decision, and while HHS’s appeal of that decision was pending before the full
MSPB, on June 5, 2000, a female patient at the hospital complained of sexual
misconduct by a male nurse. At the time of the incident, two male nurses were
assigned to the complaining patient. The patient did not know the name of the
nurse who assaulted her but stated it “was the one in the blue scrubs.” Decl. of
Loa Girty at ¶ 16, Appellant’s App. at 164. Apparently, Daugherty was the only
nurse assigned to the patient who wore blue scrubs at the time of the incident.
When presented with a picture of Daugherty, the patient identified him as the
person who assaulted her. This complaint was referred to the OIG for
investigation, the OIG requested that the FBI handle the investigation, and the
FBI referred to case to the Tahlequah Police Department. On July 27, 2000, the
Cherokee County District Attorney filed an information charging Daugherty with
sexual battery of the female patient. Daugherty alleges that defendant referred
this complaint to law enforcement authorities in retaliation for his appeal to the
MSPB.
Daugherty filed this action in the district court, seeking judicial review of
the MSPB’s decision and also alleging that he was the victim of unlawful
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employment discrimination because of his history of alcoholism and that
defendant retaliated against him for having filed an employment discrimination
claim. By minute order, the district court denied Daugherty’s motion for partial
summary judgment on the administrative record. The court granted defendant’s
motion for summary judgment on the discrimination claim, finding that Daugherty
“cannot establish a prima facie case of handicap discrimination because he cannot
demonstrate that he was a qualified handicapped individual . . . [because] [t]he
record demonstrates [Daugherty] was not discriminated against due to his
alcoholism and there were no vacant positions for which [he] was qualified to
which he could be reassigned.” Order at 4-5, Appellant’s App. Vol. I at 14-15.
Further, the court held that Daugherty had failed to establish a prima facie case of
retaliation.
Daugherty appeals, arguing (1) the Act is unconstitutional; (2) “the MSPB’s
decision to apply a ‘per se’ rule [is] contrary to the statutory provisions of [5]
U.S.C. § 7701”; (3) “the agency [HHS] discriminate[d] against [Daugherty] based
upon a record of a disability by discharging [him] for having a prior conviction
which was alcohol related”; and (4) the district court erred in granting summary
judgment to HHS on Daugherty’s discrimination and retaliation claims.
Appellant’s Br. at 2. We affirm.
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DISCUSSION
We review the district court’s grant of summary judgment de novo,
applying the same standard as did the district court. Wells v. Shalala , 228 F.3d
1137, 1140 (10th Cir. 2000). Accordingly, in this mixed case we review the
challenged administrative determination by the MSPB under the same deferential
Administrative Procedures Act, 5 U.S.C. 7703(c), standard as did the district
court. See Williams v. Rice , 983 F.2d 177, 180 (10th Cir. 1993). We therefore
must uphold the MSPB decisions unless we determine that it is: “(1) arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law;
(2) obtained without procedures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.” Id. (quoting 5 U.S.C.
§ 7703(c)). With respect to the discrimination claim, we determine whether the
district court properly granted summary judgment to HHS. Summary judgment is
appropriate if “there is no genuine issue as to any material fact and . . . the
moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c).
Daugherty argues the MSPB’s interpretation of the Act—that it contains a
“per se” rule disqualifying any employee in a covered position who has any prior
conviction for a “crime of violence”—renders the statute unconstitutional as
overly broad, a bill of attainder and an ex post facto law. We disagree.
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Daugherty first asserts that he has a property interest in his continued
employment with the government, and that the MSPB’s “per se” rule violates
“fundamental due process” and is “arbitrary and capricious.” Appellant’s Br. at
16. More specifically, he argues that a statute creating an irrebuttable
presumption that his prior criminal history makes him unfit for service in a
covered position violates “fundamental due process.” As the Federal Circuit
recently noted in one of the cases consolidated before the MSPB with Daugherty’s
case, “statutes creating conclusive presumptions are judged under the same due
process standards as other statutes.” Delong , 264 F.3d at 1341 (citing Weinberger
v. Salfi , 422 U.S. 749 (1975)). “Where the statute at issue does not abridge a
fundamental right or discriminate against a suspect class, it is upheld if it ‘bear[s]
. . . [a] rational relation to a legitimate legislative goal’ and is free of invidious
discrimination.” Id. Daugherty cites no case supporting his implicit assertion
that he has a fundamental right to continued employment. Thus, the rational basis
test applies. See id. at 1342.
Daugherty argues the statute as interpreted by MSPB is overly broad, a bill
of attainder punishing him “without authorizing individualized administrative
adjudication of suitability,” and an ex post facto law “retroactively disqualifying”
him from employment. Appellant’s Br. at 17-18. Daugherty does not seriously
dispute that the Act is designed to further the government’s legitimate interest in
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protecting Indian children from abuse and violence. We agree with the Delong
court’s analysis:
In creating the minimum standards of character set forth in § 3207,
Congress created a bright line rule that anyone who has been
convicted of an enumerated crime may not serve in a covered
position. Like all bright line rules, § 3207 is both over-inclusive and
under-inclusive, but the imprecision of the statute does not make it
unconstitutional.
Delong , 264 F.3d at 1343. We therefore reject Daugherty’s argument that the Act
as construed by the MSPB and the district court is unconstitutional. 5
Daugherty next argues that the MSPB’s decision violated 5 U.S.C.
§ 7701(c)(A) because it was not supported by substantial evidence. We disagree.
There is no dispute that the position of nurse was a covered position under the
Act. There is no serious dispute that Daugherty was convicted of assault and
5
We perceive no prohibited retroactive effect in the Act’s operation.
Congress clearly intended the Act to apply to current employees and to have
agencies examine employees’ current qualification to perform their jobs in light
of the record of their past conduct. There is nothing unconstitutional in that
intent. Moreover, the fact that the Act does not provide for individualized
determinations of whether a particular individual’s job or past conduct is covered
or not by the Act is not necessarily unconstitutional:
Congress could rationally have concluded that the minimum
standards of character in § 3207 would reduce the incidence of abuse
of Indian children at the hands of federal employees. Moreover,
given the difficulty of identifying employees who pose a threat to
Indian children, the choice of a blanket rule is justified in this case.
Delong, 264 F.3d at 1343.
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assault with a sexual motive. 6
Rather, Daugherty’s complaint is essentially the
same argument he made regarding the constitutionality of the Act: “both the
statute and the agency’s own implementing instructions require a case by case
determination of whether the employee actually has regular contact with
children.” Appellant’s Br. at 22. His objection is therefore to the IHS’s decision
that all clinical nurse positions at the Hastings Indian Hospital were covered
positions under the Act.
As we discussed above, the Act contemplates bright line rules. It does not
specify how an agency must determine what positions are covered positions, and
does not require individualized case-by-case determinations. 7
We conclude that
the MSPB’s decision that Daugherty was lawfully removed under the Act was
supported by substantial evidence.
6
Daugherty suggests that there was insufficient evidence before the MSPB
that Daugherty had in fact been convicted by the military courts: “[Daugherty]
would note that the report of crimes consisted merely of handwritten notes.”
Appellant’s Br. at 21 n.2. As defendant points out, Daugherty admitted that he
had testified that he had been convicted of assault. Pl.’s Resp. in Opp’n to Def.’s
Mot. for Summ. J. at 4 ¶ 6, Appellant’s App. Vol. I at 130.
7
Although Daugherty cites various internal memoranda and instructions
from the HHS to its officials which discuss case-by-case assessments of positions,
those memoranda do not contemplate case-by-case assessments of whether one
particular individual in a position is subject to the Act, where other particular
individuals in the same position in the same facility and work environment are
clearly subject to the Act. Moreover, those internal memoranda cannot alter the
wording of the Act itself.
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Daugherty’s remaining two arguments boil down to the assertion that the
district court erred in granting summary judgment to HHS on Daugherty’s
discrimination and retaliation claims. We affirm the grant of summary judgment,
and we agree with the district court’s conclusion that Daugherty failed to
establish a prima facie case of handicap discrimination because he failed to show
that he was a qualified handicapped individual. Daugherty was not qualified for
the position of nurse because the Act rendered him unfit. Further, the record
shows that there were no vacant positions for which he was qualified to which he
could have been assigned. We also agree with the district court that Daugherty
failed to establish a prima facie case of retaliation, for substantially the reasons
stated in the district court’s opinion.
For the foregoing reasons, the judgments of the district court are
AFFIRMED.
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