Rana v. U.S., 86-1072

• Decision Date: 03 March 1987
• Docket Number: No. 86-1072,86-1072
• Citation: 812 F.2d 887
• Parties: 43 Fair Empl.Prac.Cas. 161 Sher J. RANA, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee, and Casper W. Weinberger, Secretary, Department of Defense, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 887

812 F.2d 887

43 Fair Empl.Prac.Cas. 161

Sher J. RANA, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee and Casper W. Weinberger, Secretary, Department of Defense Defendant-Appellee.

No. 86-1072.

United States Court of Appeals Fourth Circuit.

Argued Dec. 10, 1986.

Decided March 3, 1987.

William S. Aramony, Irving Kator, Kator, Scott & Heller, Washington, D.C., on brief, for plaintiff-appellant.

Major Kevin William Bond, Office of the Judge Advocate Gen., Dept. of the Army, Washington, D.C. (Henry E. Hudson, U.S. Atty., Dennis E. Szybala, Asst. U.S. Atty., Alexandria, Va., on brief), for defendants-appellees.

Before WIDENER and ERVIN, Circuit Judges, and HENDERSON, United States District Judge for the District of South Carolina, sitting by designation.

ERVIN, Circuit Judge:

Sher J. Rana claims that he was discriminated against on account of age and national origin when he was dismissed from his job at the Department of Defense in 1982. He appealed his removal to the Merit Systems Protection Board (MSPB), which found for the government. Rana then filed a complaint in the United States District Court for the Eastern District of Virginia under the provisions of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e-16 (1982), the Age Discrimination in Employment Act of 1967, 29 U.S.C. Sec. 633a (1982), and the fifth amendment to the United States Constitution. ¹

The case was tried before the district court judge. At the end of the trial, the judge ruled from the bench. He found no discrimination on the basis of age or national origin, concluding that Rana was dismissed for unsatisfactory job performance. He found that the due process claim was untimely, but that, in any event, Rana received due process.

Rana contends on appeal that the evidence of poor job performance adduced at trial differed from the nineteen instances of unsatisfactory work that were listed in his Notice of Proposed Removal. According to Rana, this alleged variance made the government's case a "moving target" which the district court should have limited to the specific instances charged in the Notice. Further, Rana insists that he received no meaningful opportunity to reply to this Notice of Proposed Removal, raising issues of procedural due process. Finally, Rana claims that the district judge erroneously considered the record before the MSPB while conducting his de novo trial on the discrimination charge.

The record does not support Rana's first two arguments, and the third is incorrect as a matter of law. We affirm the decision below in all respects.

The Notice of Proposed Removal and Notice of Removal issued to Rana set out specific, substantial grounds for removing him from his position as a senior economist. Rana was given time to improve his performance. Although the district court found that Rana established a prima facie case of discrimination, see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973), the government presented a legitimate, nondiscriminatory reason for the dismissal. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254-55, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981). Rana then failed to carry the ultimate burden of persuading the factfinder that the reasons given by the government for his removal were pretextual. Rana urges this court to set aside the factfinder's conclusions because of testimony in the trial that his work was "vague" and "imprecise," adjectives that are not found literally in the removal notices.

The Notice of Proposed Removal, however, gave ample warning to Rana that charges such as "vagueness" and "imprecision" might be leveled at him. It contained specific instances of unacceptable performance as well as general conclusions that his effort was perceived to be below the standard for a high-level economist. The nineteen specific instances of unacceptable performance included several occasions on which Rana apparently did "sloppy" and "imprecise" work. The actual testimony concerning "vagueness" and "imprecision" was a summation of his employer's overall evaluation. Rana cannot fairly claim that the government's case presented a "moving target," nor does he convince this court that the district court's finding of "no pretext" was clearly erroneous.

The procedural due process claim rests on the argument that Rana received no "meaningful" opportunity to respond to the removal notices. Rana also asserts that there were procedural irregularities in carrying out his removal. Rana did not raise these arguments before the MSPB, and the government urges this court to rule that Rana has therefore waived the right to assert his fifth amendment claims.

We will not bar the assertion of constitutional claims in all cases in which they are not first raised before an administrative tribunal involved in the case. ² Here, however, Rana is essentially arguing that the Department of Defense failed to follow its own rules in dismissing him. That argument calls for precisely the sort of inquiry to which the MSPB is accustomed. When an argument concerns procedural rights within the purview of agency expertise, and a plaintiff fails to raise the argument before the agency, courts will entertain the argument on appeal only if it is "jurisdictional" or if there are compelling reasons for its novelty. See Andrade v. Lauer, 729 F.2d 1475, 1486-87 (D.C.Cir.1984); cf. Bush v. Lucas, 462 U.S....