0320090084
10-27-2009
Paul Mansfield, Petitioner, v. Eric H. Holder, Jr., Attorney General, Department of Justice, Agency.
Paul Mansfield,
Petitioner,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice,
Agency.
Petition No. 0320090084
MSPB No. PH0752080096I2
DECISION
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 alleging
a violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq.
At the time this matter arose, petitioner was employed as an Assistant
United States Attorney (AUSA) in the Office of the United States
Attorney for the Eastern District of Pennsylvania. On November 27, 2007,
petitioner filed a mixed case appeal with the MSPB, alleging that he was
discriminated against on the basis of reprisal for prior protected EEO
activity under Title VII of the Civil Rights Act of 1964, when he was
removed from his position, effective October 25, 2007. The appeal was
assigned to a MSPB Administrative Judge (AJ), who conducted a hearing
on the matter.
In brief, the testimony and documentary evidence presented at the hearing
revealed the following. Complainant began working for the agency in March
1991, and had approximately 18 years of federal service at the time of
his removal. On September 21, 2007, the agency proposed his removal
based on charges of charges of conduct unbecoming a federal employee
and lack of candor. Following both an oral and written response to the
charges from petitioner, the agency issued its final decision to remove
him effective October 25, 2007.
The record establishes that in June 2006 petitioner filed an EEO complaint
against his management alleging he was discriminated against him on
the bases of his age (47), disabilities (tachycardia, cardiomyopathy,
sleep apnea, stress and anxiety), and reprisal for filing previous EEO
complaints, when he was involuntarily transferred from the Organized
Crime Strike Force to the Violent Crimes Unit in April 2006. He filed an
additional complaint in February 2007 alleging continued discriminatory
harassment. He further amended his complaint later in 2007. It is
this prior EEO activity that petitioner claims precipitated subsequent
disciplinary action1 and his eventual removal.
As already noted, the removal was based on the charges of conduct
unbecoming a federal employee (charge 1) and lack of candor (charge 2).
As recounted in significant detail in the MSPB AJ's decision, Charge 1 was
supported by eight specifications citing incidents in August 2007 when
petitioner missed court filing deadlines, failed to seek a continuance
before missing deadlines, and submitted a deficient response to the court.
The MSPB AJ determined that, with one exception, the specifications were
not in factual dispute, and sustained seven of them. The AJ noted that
petitioner did not challenge that the incidents forming the specifications
occurred, but instead argued that the specifications were not as serious
as the agency was making them out to be, offered explanations for his
actions, or made claims of disparate treatment. Charge 2, which was also
sustained by the MSPB AJ, involved petitioner's failure to notify his
supervisor that he missed a court deadline for filing a motion to suppress
that he had previously assured his supervisor would be timely filed.
In sustaining both Charge 1 and 2, the MSPB AJ further found that the
proven misconduct involved petitioner's primary work as an AUSA, and
that the penalty of removal was within "the bounds of reasonableness."
In addressing petitioner's affirmative defense of reprisal, the MSPB AJ
determined that petitioner raised a prima facie inference of retaliation
because the record established that all the involved management officials
were aware of petitioner's prior EEO activity and because of the close
proximity of the disciplinary action to that EEO activity. However,
the MSPB AJ concluded that the agency successfully rebutted the initial
inference raised by petitioner's prima facie case by providing legitimate,
non-discriminatory reasons for the removal decision, which petitioner
failed to prove, by a preponderance of the evidence, was a pretext for
unlawful retaliation.
It is noted that in addressing petitioner's reprisal claims, the
MSPB AJ found that petitioner failed to show that he was treated
disparately from other employees. The MSPB AJ determined from the
evidence presented that other employees had been disciplined and improved
their performance. Further, while the MSPB AJ found that other employees
failed to meet some deadlines, petitioner did not show that anyone had
a record similar to his. Moreover, on at least one of the occasions
cited to support the removal, the court itself contacted the supervisor
regarding petitioner's failure to timely file a motion. The MSPB AJ
further noted that petitioner's work performance problems began before he
filed EEO complaints. Finally, the MSPB AJ noted that petitioner showed
"an almost brazen lack of concern" about missing filing deadlines and
"did not seem to recognize the need to improve."
Upon receipt of the decision of the MSPB AJ, petitioner sought review
by the full Board, which denied his petition. He then filed the instant
petition with this Commission. Petitioner did not submit any arguments
in support of his petition.
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).
Based upon a thorough review of the record, it is the decision of the
Commission to concur with the final decision of the MSPB finding no
discrimination. After thoroughly reviewing the record, the Commission
determines that the evidence supports the MSPB's conclusion that the
agency's actions were not a pretext for unlawful reprisal. Accordingly,
the Commission finds that the MSPB's decision constitutes a correct
interpretation of the laws, rules, regulations, and policies governing
this matter and is supported by the evidence in the record as a whole.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0408)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court,
based on the decision of the Merit Systems Protection Board, within
thirty (30) calendar days of the date that you receive this decision.
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
October 27, 2009
__________________
Date
1 The record indicates that petitioner was issued a letter of reprimand
in December 2006 for failure to return work in a timely manner and
cancellation of meetings; a two-day suspension in February 2007 for
failure to prepare an assigned brief due in court; and a ten-day
suspension in March 2007 for failure to prepared assigned work due in
court and failure to follow a direct order.
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0320090084
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0320090084