Dachman v. Shalala, Sec ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
S. REBECCA DACHMAN, 
Plaintiff-Appellant,
v.
DONNA E. SHALALA, SECRETARY,
UNITED STATES DEPARTMENT OF

HEALTH AND HUMAN SERVICES,
Defendant-Appellee, No. 00-1641
and
KAREN D. WEISS,
Party in Interest.
MARGARET MITRANE, M.D.,
Movant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Andre M. Davis, District Judge.
(CA-96-873-AMD)
Argued: April 6, 2001
Decided: May 18, 2001
Before WIDENER and WILKINS, Circuit Judges, and
Patrick Michael DUFFY, United States District Judge
for the District of South Carolina, sitting by designation.
Affirmed by unpublished opinion. Judge Duffy wrote the opinion, in
which Judge Widener and Judge Wilkins joined.
2 DACHMAN v. SHALALA
COUNSEL
ARGUED: Richard Lee Swick, SWICK & SHAPIRO, P.C., Wash-
ington, D.C., for Appellant. Jennifer Lilore Huesman, Assistant
United States Attorney, Baltimore, Maryland, for Appellee. ON
BRIEF: Lynne A. Battaglia, United States Attorney, Baltimore,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
DUFFY, District Judge:
This case is before the court on appellant’s claim that the district
court erred in granting appellee’s motion for summary judgment.
Because we conclude that appellant failed to establish any Title VII
violation, we affirm.
I.
Appellant Dr. Rebecca Dachman is an Orthodox Jew. Beginning in
1988 appellant worked as a physician with the Center for Biologics
Evaluation and Research ("CBER"), a department of the United States
Food and Drug Administration ("FDA"). At issue in this case are
adverse employment actions taken against appellant by her supervi-
sors beginning in January 1995.1
1
The allegedly discriminatory acts occurring prior to January 1995 are
time barred because appellant failed to exhaust her administrative reme-
dies as required by law. See 29 C.F.R. § 1614.105(a)(1) (2000). Further,
these acts are not part of a continuing violation because, as will be
shown, appellant has not established even one claim of discrimination
and/or retaliation that was timely filed. See Woodard v. Lehman, 717
F.2d 909, 915 (4th Cir. 1983).
DACHMAN v. SHALALA 3
Although appellant claimed that she was an exemplary employee,
appellant was suspended on January 21, 1995, for fourteen days with-
out pay. Appellant’s supervisor stated that she was suspended because
of insubordinate, disrespectful, and disruptive behavior. After her sus-
pension, appellant was detailed for a period of ninety days to the
Division of Biostatistics and Epidemiology, where appellant claimed
that she was given only administrative work. At the end of her ninety
day detail, appellant was permanently reassigned to the Oncology
Department. Appellant claimed that after her reassignment she was
given only Phase I work as opposed to the more difficult Phase II
work that she had been entrusted with prior to her administrative
leave.
Appellant was suspended again from October 25, 1995, to Novem-
ber 7, 1995. Her supervisor stated that the suspension was a result of
appellant’s unacceptable behavior at a meeting and her failure to fol-
low supervisory instructions.
Effective November 17, 1995, appellant was put on leave restric-
tion due to her poor attendance and irregular leave use. On September
29, 1997, appellant was placed on administrative leave without pay,
and on February 8, 1998, she was terminated. Appellant argued that
these adverse employment actions were either (1) discriminatory on
the basis of her religion or (2) in retaliation for her filing of a discrim-
ination claim with the Equal Employment Office.
II.
To establish a prima facie case of discrimination,2 appellant must
(1) show that she was part of a protected group, (2) show that she was
performing her job satisfactorily, and (3) provide "‘indirect evidence
whose cumulative probative force supports a reasonable inference that
[the] [adverse employment action] was discriminatory.’" Chalmers v.
Tulon Co., 101 F.3d 1012, 1017 (4th Cir. 1996) (quoting Lawrence
v. Mars, Inc., 955 F.2d 902, 905-06 (4th Cir. 1992)) (first alteration
2
Appellant does not have direct evidence of discrimination and there-
fore must use the McDonnell Douglas framework to establish her claim
of religious discrimination and/or retaliation. See McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973).
4 DACHMAN v. SHALALA
in original). Appellant’s inferential case "might consist of evidence
that the employer treated the employee more harshly than other
employees of a different religion, or no religion, who had engaged in
similar conduct." Chalmers, 101 F.3d at 1017.
In this case, appellant has not established a prima facie case of reli-
gious discrimination. First, the record indicated that appellant was not
performing her job satisfactorily. Appellant received several suspen-
sions, and her supervisors provided detailed memoranda documenting
her unsatisfactory behavior. (JA 249-59, 261-79, 329-33). Further, the
record was replete with other documented complaints made by her
supervisors, (JA 233, 237-38, 287-88, 292, 311-12, 324-28), includ-
ing a memorandum from the Deputy Director of CBER that stated:
I have found no mitigating circumstances which justify your
blatant disobedience and insolent, disruptive behavior. On
the other hand, I find numerous aggravating circumstances
which warrant your suspension from duty for your miscon-
duct. . . . This Agency cannot allow your misconduct to con-
tinue, and I must warn you, again, that you are in jeopardy
of losing your position with the FDA if you do not take
appropriate actions immediately to modify your conduct to
an acceptable level.
(JA 348) (emphasis added).
Second, the cumulative force of appellant’s evidence does not
create an inference of religious discrimination. Appellant has not pro-
vided any evidence that she was treated differently from any other
employee who had similar disciplinary and work-related problems.
See DeJarnette v. Corning Inc., 133 F.3d 293, 298 (4th Cir. 1998).
Further, her relationship with her supervisors started out collegial and
only deteriorated over time—even though her supervisors would have
known from the beginning that appellant was an Orthodox Jew.3 (JA
3
Significantly, appellant listed a number of personal, rather than dis-
criminatory or retaliatory, reasons why her relationship with her col-
leagues and supervisors deteriorated. (JA 37, 40-41, 43).
DACHMAN v. SHALALA 5
42-43).
Even if appellant could establish a prima facie case of discrimina-
tion, however, appellee has articulated legitimate, non-discriminatory
reasons for the FDA’s actions, and appellant has not shown that these
reasons were false and a pretext for discrimination.4 First, appellant’s
supervisors minutely detailed the reasons for her two suspensions,
including appellant’s refusal to write an apology letter when asked to
do so by her supervisor, her refusal to leave her supervisor’s office
when ordered to do so, and her continual nagging.5 (JA 249-56, 26-
79, 329-33). Notably, although attempting to justify her behavior,
appellant conceded that she engaged in this behavior. (JA 95, 97-99).
Second, appellant’s supervisor stated that appellant was reassigned
because the situation for both appellant and her supervisors had
become intolerable. (JA 286-87). Appellant herself noted the tension
in her department and stated that it would be better if she were moved
to another department.6 (JA 54, 286-87).
Third, the record overwhelmingly supported appellee’s claim that
appellant was placed on leave restriction because of her poor atten-
4
Appellant argued that the district court erred in not applying the law
as set forth in Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133,
147-49 (2000). However, even assuming appellant established a prima
facie case of discrimination, the Reeves analysis is inapplicable because
appellant has not provided any evidence that appellee’s legitimate, non-
discriminatory reasons were false.
5
A. I was just in his room nagging him.
Q. And was he your supervisor at the time?
A. Yes.
Q. And was that appropriate behavior for a subordinate to nag
a supervisor?
A. It’s behavior that I always exhibited.
(JA at 95).
6
Appellant also complained that she was not given enough work in her
new department. However, the record showed that appellant’s new posi-
tion afforded her sufficient work. (JA 192, 386).
6 DACHMAN v. SHALALA
dance record and inappropriate leave use. (JA 292, 312). Dr. Keegan,
chief of the Oncology Department, wrote appellant a memorandum
detailing the many problems with her attendance and leave use. (JA
357-63). This memorandum stated that appellant’s work records did
not account for eight and a half hours of work on many days and that
for one pay period there were only four days that appellant worked
a full day without taking some sort of leave. (JA 357-58). Once again,
appellant did not present any evidence that this legitimate, non-
discriminatory reason was false.
Finally, appellant’s supervisor provided ample justification for
appellant’s termination. The grounds for her termination included (1)
repeated failure to follow supervisory instructions, (2) repeated unau-
thorized absences, (3) unacceptable conduct, and (4) misuse of gov-
ernment equipment. (JA 726-89). In an extensive memorandum, Dr.
Keegan enumerated page after page of leave and attendance viola-
tions that directly conflicted with the explicit requirements she had set
out for appellant in a previous memorandum. (JA 726-71). Appellant
did not present any facts showing that the copious documentation of
leave and attendance abuse was false.7 Although appellant com-
plained that she was monitored more closely than other employees,
she did not present any evidence that she was treated differently from
any other employee that engaged in gross abuse of attendance and
leave requirements.8
7
Further, the record is clear that appellant’s attendance and leave prob-
lems did not result from her need to take time off to observe her religious
holidays. Instead, her leave and attendance problems stemmed from her
refusal to ask for leave in a timely manner, her refusal to sign in and out,
and her habit of leaving her office for extensive periods of time without
informing anyone of her whereabouts, even after explicit instructions to
remain in her office. (JA 726-89).
8
Further, Dr. Keegan noted appellant’s refusal to return government
documents, including confidential documents, after ordered to do so. (JA
751-52). Dr. Keegan also documented appellant’s refusal to provide an
accounting of her work. (JA 752-53). Appellant did not provide any evi-
dence that these reasons were false.
DACHMAN v. SHALALA 7
III.
Appellant’s retaliation claim is based on the same acts enumerated
above and fails for the same reasons. In order to support a claim for
retaliation, appellant must show: (1) that she engaged in protected
activity; (2) that her employer took adverse employment action
against her, and (3) that a causal connection existed between the pro-
tected activity and the adverse action. See Lawrence v. Mars, Inc.,
955 F.2d 902, 906 (4th Cir. 1992).
In this case, appellant claims that she engaged in protected activity
by filing a claim of discrimination with the Equal Employment Office
and that as a result of this claim everyone in the FDA began taking
retaliatory actions against her. (JA 125). This court has found that
establishing a causal connection between the filing of a claim and
retaliatory action is not an onerous burden to meet. See Williams v.
Cerberonics, Inc., 871 F.2d 452, 457 (4th Cir. 1989). However, even
if appellant established a prima facie case of retaliation, as fully
detailed above, appellee provided legitimate, non-discriminatory rea-
sons for the FDA’s actions, and appellant has failed to show that these
reasons were pretextual.
IV.
Appellant also claims that appellee violated Title VII by failing to
accommodate her religious practices. There is no dispute that appel-
lant’s religious beliefs prohibited her from working after sundown on
Fridays and on religious holidays. However, appellant has not pro-
vided any evidence that the FDA’s attendance policies required her
to work during these times. Therefore, as a matter of law, she cannot
establish a prima facie case of religious discrimination.
Title VII of the Civil Rights Act of 1964 requires an employer to
make reasonable accommodations for its employees’ religious obser-
vances. In relevant part, the act states:
(j) The term "religion" includes all aspects of religious
observance and practice, as well as belief, unless an
employer demonstrates that he is unable to reasonably
8 DACHMAN v. SHALALA
accommodate to an employee’s or prospective employee’s
religious observance or practice without undue hardship on
the conduct of the employer’s business.
42 U.S.C. § 2000e(j) (2000). To establish a prima facie case of dis-
crimination, an employee must establish that: "‘(1) he or she has a
bona fide religious belief that conflicts with an employment require-
ment; (2) he or she informed the employer of this belief; [and] (3) he
or she was disciplined for failure to comply with the conflicting
employment requirement.’" Chalmers v. Tulon Co., 101 F.3d 1012,
1019 (4th Cir. 1996) (quoting Philbrook v. Ansonia Bd. of Educ., 757
F.2d 476, 481 (2d Cir. 1985)).
All parties agree that appellant was given at least two hours leave
every Friday.9 Appellant stated that the two hour leave did not give
her sufficient time to pick up Challah bread from a Jewish store.10
However, appellant admitted that the Jewish store began making the
bread on Thursday morning. Appellant stated that the store was open
until 8:30 p.m. on Thursdays, and she stated that she had on occasion
gone shopping on Thursday night. (JA 655-57). When asked why she
could not pick up the bread on Thursday night, appellant responded:
[The children] are starving. They want to eat and they want
to do homework. They don’t want to leave the house.
They’re very conservative. They don’t want to leave the
house after they get home in the evening. They get very
upset when I say I want to go somewhere.
(JA 665-66).
While an employer has a duty to accommodate an employee’s reli-
gious beliefs, the employer does not have a duty to accommodate an
employee’s preferences. See Tiano v. Dillard Dep’t Stores, Inc., 139
9
The two hour Religious Compensation Time allowed appellant to
leave work at 1:30 p.m. on Fridays. (JA 590-91).
10
The district court found that the Challah bread was not required for
the Sabbath. (JA 718). However, in the light most favorable to appellant,
the bread was a very important part of the Sabbath meal, and it was
important to buy this bread from a Jewish grocer. (JA 652, 658-59).
DACHMAN v. SHALALA 9
F.3d 679, 682 (9th Cir. 1998) ("Title VII does not protect secular
preferences."). In this case, appellant’s own testimony confirmed that
her decision to pick up the bread on Friday afternoon was simply her
preference and not a religious requirement. As such, her employer did
not have a duty to accommodate this preference.
Appellant also argued that the court did not take into account the
many other activities that she had to complete before sundown Friday.
She stated that "during Friday afternoons she need[ed] to cook any
food which would be consumed in the ensuing period, bathe her chil-
dren, lay out clothes for the next day, and prepare her home by select-
ing which appliances [would] be kept hooked up to the electricity."
(Appellant’s Brief at 32). However, while her religious beliefs prohib-
ited her from working on the Sabbath, her religious beliefs did not
mandate that all preparation for the Sabbath take place on Friday.
While some tasks, such as bathing the children, would have to be
done on Friday, other tasks, such as preparing meals and cleaning the
house, could be done earlier in the week.11 Once again, the employer
does not have an obligation to accommodate appellant’s preferences,
only her actual religious beliefs and practices.
V.
Finally, appellant argues that summary judgment was untimely
because she did not have an opportunity to depose her supervisors
concerning her termination. Decisions of a trial court as to discovery
issues are reviewed for abuse of discretion. See Strag v. Board of
Trustees, 55 F.3d 943, 953 (4th Cir. 1995). The court may deny or
continue a motion for summary judgment "[s]hould it appear from the
affidavits of a party opposing the motion that the party cannot for rea-
sons stated present by affidavit facts essential to justify the party’s
opposition. . . ." Fed. R. Civ. P. 56(f). A party opposing summary
judgment based on this rule is required to file an affidavit "specifying
which aspects of discovery required more time to complete." Nguyen
v. CNA Corp., 44 F.3d 234, 242 (4th Cir. 1995).
11
Appellant admitted that she could do some cooking during the Sab-
bath but stated that she "prefer[red] to do [her] cooking beforehand,
because it’s just very difficult. The food never comes out as good." (JA
25).
10 DACHMAN v. SHALALA
Appellant filed an affidavit stating that she needed to depose her
supervisors concerning her termination because "[t]heir depositions
may provide critical information regarding motives, facts and disputes
of fact." (JA 986). However, as appellant could not produce any evi-
dence to refute her supervisor’s detailed explanation for her termina-
tion, the district court did not abuse its discretion when it did not
allow additional discovery.
VI.
In conclusion, in light of the overwhelming evidence presented by
appellee justifying the FDA’s employment actions against appellant,
we hold that appellant failed to establish any Title VII violation.
AFFIRMED