MICHELL A. LEVINSKY v. DEPARTMENT OF JUSTICE

UNITED STATES OF AMERICA
MERIT SYSTEMS = PROTECTION=20 BOARD

MITCHELL A. = LEVINSKY,

Appellant,

DEPARTMENT OF JUSTICE,

Agency.

DOCKET NUMBER

NY-0752-03-0329-I-1

DATE: September 9,=20 2005

Lawrence=20 Berger, Esquire, Garden City, New York, for the appellant.

Elizabeth Goitein, Esquire, = Washington,=20 D.C., for the agency.

BEFORE

Neil A. G. = McPhie,=20 Chairman
Barbara J. Sapin, Member

OPINION AND ORDER

=B61 = ; =20 The agency has petitioned for review of an initial decision = ordering it=20 to mitigate the appellant=92s removal to a 60-day suspension. For = the=20 reasons stated below, the petition is GRANTED, and the initial decision = is=20 AFFIRMED as MODIFIED by this Opinion and Order. The appellant=92s = removal is=20 SUSTAINED.

BACKGROUND

=B62 = ; =20 The agency=92s Executive Office for Immigration Review (EOIR) = employed the=20 appellant as an immigration judge beginning in November 1995. = Agency File,=20 Tab 4h, Subtab F10 (the appellant=92s unsworn declaration of Aug. 7, = 2000) at 1;=20 id., Tab 4a (form documenting the appellant=92s removal); = id., Tab=20 4c (transcript of the appellant=92s oral response to the proposal to = remove him)=20 at 6-8.[1] =20 Beginning in August 1996, the appellant=92s full-time duty station was = at the=20 Downstate Correctional Facility (DCF) in Fishkill, New York, a maximum = security=20 prison. Id., Tab 4h, Subtab F10 at 1; id., Tab = 4i,=20 Subtab 24 at 1.[2] =20 While he was employed at that location, the appellant was responsible = for=20 conducting hearings in the cases of aliens who had been convicted of = serious=20 felony offenses, and for deciding whether those persons should be = deported or=20 permitted to remain in the United States. Agency File, Tab 4i, = Subtab 24=20 at 1.

=B63 = ; =20 In September 1998, Mercedes Cesaratto began working at DCF as an=20 Immigration and Naturalization Service (INS) trial attorney. = Agency File,=20 Tab 4h, Subtab F1 (Cesaratto affidavit) at 2. Sometime prior = to=20 October 27, 1999, her second-level supervisor, INS=92s New York District = Counsel,=20 advised EOIR=92s Assistant Chief Immigration Judge that Ms. Cesaratto = had raised=20 allegations of misconduct on the part of the appellant; and on November = 15, he=20 referred Ms. Cesaratto=92s allegations to the agency=92s Office of = Professional=20 Responsibility (OPR). OPR Investigative Report at 1, Agency File, = Tab 4f;=20 Agency File, Tab 4h, Subtab F9 (Meyers affidavit at 1-2); id., = Tab 4i,=20 Subtab 2 (District Counsel=92s letter of Oct. 27, 1999). EOIR = (through a=20 contract investigator) and OPR conducted separate investigations of the=20 complaint, along with investigations of allegations by the appellant of=20 impropriety by Ms. Cesaratto; on March 28, 2000, Ms. Cesaratto = filed a=20 discrimination complaint in which she alleged that the appellant had=20 discriminated against her on the bases of sex, religion (Catholic), and = race and=20 national origin (which she identified as Hispanic) by =93subject[ing = her] to a=20 continuously hostile and discriminatory work environment=94; and a = contractor=20 employed by INS=92s Equal Employment Opportunity (EEO) Office = investigated that=20 complaint. OPR Investigative Report at 2-4; Discrimination = Complaint,=20 Agency File, Tab 4h, Subtab A; EOIR Investigative Report, Agency File, = Tab 4i.=20

=B64 = ; =20 The EOIR investigative report was issued on May 12, 2000, and a = copy of=20 the report on the investigation of the discrimination complaint was = forwarded to=20 Ms. Cesaratto on November 29, 2000. EOIR Investigative Report at=20 1-2. While the report of the discrimination complaint = investigation did=20 not include any findings or conclusions, the EOIR investigative report = included=20 a finding that the appellant had =93personal mannerisms and exercise[d] = verbal=20 communication that appear to be inappropriate and offensive to INS = employees=20 =85.=94 EOIR Investigative Report at 4. On April 24, 2001, = the INS EEO=20 Office issued a final agency decision finding that the appellant had = subjected=20 Ms. Cesaratto to a discriminatory hostile work environment and that = Ms.=20 Cesaratto therefore was entitled to relief. Agency File, Tab 4g at = 1,=20 18-26. In the letter by which it forwarded a copy of the decision = to=20 EOIR=92s EEO Officer, the complaint adjudication officer warned that = EOIR could be=20 held liable in a future discrimination complaint against the appellant = if the=20 conduct found to have occurred continued and if EOIR failed to take = appropriate=20 action related to that conduct. Agency File, Tab 4g at 27. =20 (memorandum of Apr. 24, 2001, from complaint adjudication officer to = EOIR EEO=20 Officer). In July 2001, the agency placed the appellant on = administrative=20 leave. Appeal File, Tab 29 (agency prehearing submission at = 11-12). =20 Sometime after this action, Ms. Cesaratto filed a civil action in a = federal=20 district court, seeking damages for injuries she allegedly sustained as = a result=20 of the appellant=92s actions; and on January 31, 2002, she and the = agency entered=20 into an agreement settling the complaint. OPR Investigative Report = at=20 3-4. Under the agreement, the agency was to pay Ms. Cesaratto = $60,370; she=20 was not to be required to appear before the appellant or to be assigned = to any=20 facility where the appellant was assigned; and, if necessary to comply = with=20 these terms, the appellant was to be assigned to another immigration=20 court. Settlement Agreement at 2, 4, Agency File, Tab 4e. =

=B65 = ; =20 On September 23, 2002, OPR issued the report of its investigation = of=20 Ms. Cesaratto=92s allegations. OPR Investigative Report at = 1. In=20 that report, it found that the evidence regarding some of the = allegations showed=20 that the appellant either engaged in professional misconduct or = exercised poor=20 judgment with respect to some matters and that the evidence regarding = other=20 allegations did not support a finding of wrongdoing. Id. at = 4-6,=20 65-67. It also recommended that the appellant be suspended for 7 = to 20=20 days, that he receive =93sensitivity training,=94 and that EOIR managers = regularly=20 monitor his courtroom behavior. Id. at 6, 67.[3] =20

=B66 = ; =20 Two months later, on November 4, 2002, the appellant=92s = second-level=20 supervisor proposed to remove the appellant for (1) repeated use of = sexist and=20 ethnically insensitive generalizations and (2) repeated use of = profanity. =20 Proposal Notice, Agency File, Tab 4e. The Associate Deputy = Attorney=20 General, who acted as the agency=92s deciding official in the case, = subsequently=20 sustained both charges, and the appellant was removed effective July 1,=20 2003. Removal Decision Notice, Agency File, Tab 4b; id., = Tab 4a=20 (form documenting the appellant=92s removal).

=B67 = ; =20 The appellant appealed his removal to the Board=92s New York = Field Office;=20 and, after a hearing, the administrative judge assigned to the case = issued an=20 initial decision sustaining all but one specification of the charge of = using=20 sexist and ethnically insensitive generalizations, sustaining both = charges,=20 finding that the agency had neither denied the appellant his due process = rights=20 nor committed harmful procedural error in removing him, but finding = further that=20 the maximum reasonable penalty for the appellant=92s offenses was a = 60-day=20 suspension. Appeal File, Tab 1; Initial Decision, id., Tab=20 36.

=B68 = ; =20 The agency has filed a timely petition for review of the initial=20 decision, arguing that the administrative judge erred in mitigating the = penalty=20 and in failing to sustain all the specifications of the first = charge. =20 Petition for Review (PFR), PFR File, Tab 1. The appellant has = filed a=20 timely response to the petition. Id., Tab 3.[4]

ANALYSIS

Whether the administrative judge erred in = declining=20 to sustain all specifications of the charge of repeatedly using sexist = and=20 ethnically insensitive generalizations

=B69 = ; =20 In the first charge, i.e., the charge of repeatedly using sexist = and=20 ethnically insensitive generalizations, the agency alleged that the = appellant=20 had made =93statements to the effect that: women are inherently = homosexual=20 =85; all Colombians and Cubans are drug dealers =85; Mexicans are drunks = =85;=20 Salvadorans prefer incest =85; Dominican women will have children with=20 anyone =85; Poles drink too much =85; Chinese are kidnappers =85; = Jamaicans,=20 Dominicans and Cubans are murderers =85; Jamaican women make good = housekeepers and=20 nannies =85; and [the appellant did] not like Japanese = people =85.=94 The=20 appellant denied that he had made these statements; he alleged before = the=20 administrative judge that, to the extent he had made comments linking = the=20 behavior or characteristics mentioned above with various categories of = people,=20 he had been referring to his personal observations regarding those = criminal=20 aliens who had appeared before him; and he alleged further that, to the = extent=20 he had made remarks critical of Japanese people, he had been referring = to=20 =93atrocities committed by Imperial Japan in World War II.=94 = E.g.,=20 Appellant=92s Post-Hearing Brief at 10-12, Appeal File, Tab 34. He = also=20 indicated that his comments were made during =93off-the-record courtroom = banter=20 among the courtroom staff=94 and that they accurately reflected = conviction=20 patterns of the aliens whose cases he handled; and he argued that the = agency=20 failed to show that he was biased in his treatment of aliens, that he = appeared=20 to be biased, or that he had offended any aliens. Id. at 5, = 10,=20 14-15.

=B610 = ; =20 The administrative judge did not sustain the specification in = which the=20 appellant was alleged to have made a statement to the effect that = Dominican=20 women would have children with anyone. In addressing this = specification,=20 he noted that the agency had presented the testimony of = Ms. Cesaratto, the=20 employee who had complained of the appellant=92s actions and allegedly=20 discriminatory treatment of her; and he described Ms. Cesaratto as = having=20 testified that the appellant stated that, in order to have more = children, he=20 would =93have to go to the Dominican Republic and get myself a Dominican = woman=20 because they=92ll have children with anyone.=94 Initial Decision = at 32-33=20 (quoting Hearing Transcript (H.T.) at 40. He also indicated that = he did=20 not find the testimony credible because the statement Ms. Cesaratto = attributed=20 to the appellant was self-deprecating, and because he did =93not find = that [the=20 appellant was] prone to making self-deprecating statements.=94 = Initial=20 Decision at 33.

=B611 = ; =20 The agency argues that this finding is erroneous. It = asserts that,=20 =93while a comment deriding certain women who are potential sexual = partners as=20 =91loose=92 could conceivably be viewed as reflecting on the speaker=92s = own sexual=20 desperation, the speaker generally intends these comments to insult the = women=20 rather than himself.=94 PFR at 23 n.5.

=B612 = ; =20 The agency=92s argument is not persuasive. The = administrative judge=20 did not find that the self-deprecating aspect of the appellant=92s = alleged=20 statement was inconsistent with a finding that the remarks were also = insulting=20 to Dominican women. Instead, he indicated that Ms. Cesaratto=92s = account of=20 the alleged statement was not credible because it depicted the appellant = as=20 making a self-deprecating statement. Initial Decision at 33. =

=B613 = ; =20 We note further that the finding that the appellant was not = =93prone to=20 making=94 such statements was based in part on the administrative = judge=92s=20 observations of the appellant=92s demeanor. Our reviewing court = has held=20 that the Board must give deference to an administrative judge's = credibility=20 determinations when they are based, explicitly or implicitly, on the = observation=20 of the demeanor of witnesses testifying at a hearing. Haebe v.=20 Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). It has held further that = the Board=20 may overturn such determinations only when it has =93sufficiently = sound=94 reasons=20 for doing so. Id. The agency does not challenge the=20 administrative judge=92s finding that the appellant was not prone to = making=20 self-deprecating statements. In fact, it has raised no arguments = in=20 opposition to the administrative judge=92s analysis of this = specification other=20 than the argument described above. Moreover, the administrative = judge=20 found that the other agency witnesses had not specifically addressed the = specification, and he indicated that he found the appellant=92s = testimony on the=20 subject was credible. See Initial Decision at 33. = Under these=20 circumstances, we find no basis for disturbing the administrative = judge=92s=20 finding regarding this specification.[5] =20

Whether the administrative judge erred in = mitigating the appellant=92s removal to a 60-day suspension

=B614 = ; =20 the Board will = review an=20 agency-imposed penalty only to determine whether the agency considered = all the=20 relevant factors and exercised management discretion within tolerable = limits of=20 reasonableness. Douglas v. Veterans Administration, 5 = M.S.P.R. 280,=20 306 (1981). When the Board sustains all of an agency's charges, = the Board=20 may mitigate the agency's original penalty to the maximum reasonable = penalty=20 when it finds the agency's original penalty too severe. = Lachance v.=20 Devall, 178 F.3d 1246, 1260 (Fed. Cir. 1999).

=B615 = ; =20 In this case, the administrative judge=92s decision to mitigate = the removal=20 was based in part on his finding that the agency had relied on = misconduct with=20 which the appellant had not been charged. Initial Decision at = 74. =20 That is, he found =93credible evidence=94 that INS=92s conclusion that = the appellant=20 had discriminated against Ms. Cesaratto was a significant factor in the = decision=20 to remove the appellant, and he indicated that consideration of this = factor was=20 improper because the appellant =93was not charged with that = misconduct.=94 =20 Id. He also found that the deciding = official=20 had failed to give proper weight to the appellant=92s good = behavior=20 during the 20-month period prior to his removal, and to the potential = for=20 rehabilitation that this behavior demonstrated. Id. = Based on=20 these factors, the absence of a prior disciplinary record, =93the = appellant=92s=20 repeated expressions of remorse and contrition,=94 his length of service = with the=20 agency and the federal government, the absence of malicious intent, and = the=20 appellant=92s =93unquestioned performance of his duties on the = bench,=94 the=20 administrative judge found that the maximum reasonable penalty for the=20 appellant=92s offenses was a 60-day suspension. Id. = (emphasis in the=20 original).

=B616 = ; =20 In its petition for review, the agency alleges that the deciding = official=20 did not rely on the finding of discrimination. PFR at 60.[6] =20 For the reasons stated below, we agree.

=B617 = ; =20 The INS=92s decision on Ms. Cesaratto=92s discrimination = complaint is=20 included in the file the agency submitted in response to the = appellant=92s appeal;=20 the agency therefore appears to have regarded the decision as relevant = to the=20 removal decision; and the deciding official testified that he read the = report of=20 the investigation of that complaint. Agency File, Tab 4g; H.T. at=20 417. Nothing in the record, however, indicates that the finding of = discrimination was a material factor in the deciding official=92s = penalty=20 determination. Although the decision notice is fairly lengthy, and = although it addresses in some detail both the reasons for sustaining the = charges=20 and the reasons for finding that removal was warranted, it includes no = mention=20 of the finding of discrimination, of the lawsuit, or of any costs = associated=20 with the discrimination claim. Moreover, the deciding official = testified=20 unequivocally that he did not consider the settlement agreement or the = other=20 =93administrative difficulties=94 mentioned in the proposal notice in = making his=20 penalty determination, that he instead decided to disregard them, and = that he=20 considered nothing other than the =93specific utterances=94 and = instances of=20 profanity that were cited as bases for the charges. H.T. at = 471-74. =20 As the administrative judge indicated, Initial Decision at 65-66, the = appellant=20 did not rebut this testimony.

=B618 = ; =20 The agency also challenges the administrative judge=92s finding = that the=20 deciding official failed to give proper consideration to the = appellant=92s=20 potential for rehabilitation. PFR at 38-53; see = Douglas, 5=20 M.S.P.R. at 305 (the potential for the employee=92s rehabilitation is a = factor=20 relevant in assessing the reasonableness of the agency=92s penalty=20 selection).

=B619 = ; =20 As the administrative judge noted, Initial Decision at 62, and as = the=20 facts described above indicate, the agency did not place the appellant = on=20 administrative leave until July 2001, about 20 months after November = 1999, when=20 Ms. Cesaratto=92s allegations of misconduct were referred to OPR = for=20 investigation. The appellant has alleged that his performance = during this=20 20-month period, after Ms. Cesaratto=92s allegations put him on notice = of the need=20 to avoid profanity and comments that could be regarded as ethnically=20 insensitive, was =93stellar,=94 and that there were no complaints about = his=20 performance during that period. Appeal File, Tab 34 = (appellant=92s=20 post-hearing brief at 5-6). Moreover, he has noted that the = proposing=20 official issued a memorandum to staff members on May 8, 2001, in which = he=20 =93ask[ed] each court employee to let [him] know if =85 conduct [such as = the use of=20 profanity and the making of racist, sexist, or ethnically offensive = remarks]=20 continued into this past year or beyond =85,=94 and he has asserted that = no=20 complaints were made in response to this request. Id. at 6, = 17-18;=20 see Appeal File, Tab 30, Appellant=92s Ex. C (memorandum of = May 8,=20 2001).

=B620 = ; =20 We have indicated above that the appellant was charged with = offenses that=20 were =93repeated,=94 and that he has been found to have engaged in those = offenses on=20 numerous occasions. His ability to refrain from engaging in = similar=20 behavior over an extended period of time therefore could be regarded = under some=20 circumstances as significant evidence that his potential for = rehabilitation is=20 good. Moreover, the agency has not identified any occasions after = November=20 1999 when the appellant used profanity or made sexist, racist, or = ethnically=20 insensitive remarks, and it has presented no persuasive evidence that = the=20 appellant continued to engage in this behavior after he learned of=20 Ms. Cesaratto=92s complaint.[7] =20 Instead, it has taken the position that any =93evidence of a temporary = improvement=20 in behavior =85 would not necessarily signal the potential for permanent = rehabilitation=94 because, as the deciding official testified, employees = =93under=20 surveillance so to speak=94 could be expected to =93alter their behavior = for as long=20 as they think necessary.=94 PFR at 42 (quoting H.T. at 482). =

=B621 = ; =20 We believe the agency=92s reservations about the significance of = the=20 appellant=92s apparent efforts to modify his behavior are = reasonable. The=20 appellant had been warned on previous occasions that his profanity and = his=20 comments regarding various nationalities could be regarded as offensive, = and any=20 effect these warnings may have had evidently was only temporary. = For=20 example, he acknowledged realizing that his use of profane language = offended one=20 of the legal technicians assigned to work in his courtroom; and, = although he=20 indicated that he had therefore refrained from using that kind of = language in=20 her presence, the technician testified that his efforts to do so = =93didn=92t=20 last.=94 Agency File, Tab 4c (transcript of appellant=92s oral = reply to=20 removal proposal) at 97-98; H.T. at 186-87 (testimony of V. Anderson).[8]=20 The same witness testified that she heard Ms. Cesaratto = complain=20 about the appellant=92s use of profanity, and that, although the = appellant=20 modified his behavior in Ms. Cesaratto=92s presence, there was no = change in=20 his behavior in the presence of others. H.T. at 187-88. = Moreover,=20 Ms. Cesaratto=92s supervisor, who had previously served as an INS trial = attorney=20 before the appellant, testified that he had told the appellant =93on = perhaps two=20 occasions=94 that he should =93watch his Ps and Qs,=94 and that, = although the=20 appellant=92s behavior in the courtroom =93improved for a period of = time[,] =85 he=20 reverted back.=94 H.T. at 260-61.

=B622 = ; =20 In addition, another official who had served as a trial attorney = before=20 the appellant, who had been assigned to DCF in 1998, and who had = therefore tried=20 cases before the appellant, testified that the appellant had frequently = made=20 comments linking various nationalities or ethnic groups with various = kinds of=20 cases; that the witness had regarded these comments as =93potentially = harmful to=20 [the appellant] in his capacity as a seated judge=94; and that he had = =93implor[ed]=94=20 the appellant, on at least two occasions, to stop making those = comments. =20 H.T. at 548-49, 554-56; see id. at 562-63. He = testified=20 further that he told the appellant that he thought the comments were=20 unprofessional, inflammatory, and self-destructive, and that on at least = one=20 occasion the appellant told him that he =93was probably right.=94 = Id.=20 at 563. According to that witness, the appellant=92s conduct = improved after=20 these conversations, but =93the improvement would be =85 brief and = fleeting.=94 =20 Id.

=B623 = ; =20 Under the circumstances described above, we find that the = appellant=92s=20 potential for long-term rehabilitation is, despite his apparently = successful=20 efforts to modify his behavior after learning of Ms. Cesaratto=92s = complaint,=20 somewhat uncertain.

=B624 = ; =20 Another factor relevant for consideration in assessing the = reasonableness=20 of the agency-imposed penalty is the nature and seriousness of the = offenses, and=20 their relationship to the employee=92s duties, position, and=20 responsibilities. Douglas, 5 M.S.P.R. at 305. The = Board has=20 indicated that it will consider, in connection with this factor, whether = the=20 offenses were committed maliciously. Id.

=B625 = ; =20 As the administrative judge indicated, the appellant did not act = with=20 malicious intent in using profanity in his courtroom. The record = indicates=20 instead that his use of such language was a habit for him. See, = e.g., EOIR Investigative File, Tab 26 (declaration in which J. = Opaciuch=20 stated that he had =93heard [the appellant] use swear words =85 on a = number of=20 occasions,=94 but had =93never heard him direct profanity or anything = that I would=20 classify as a cursing word toward an individual=94); id., Tab 21=20 (declaration in which K. Young stated that appellant used profanity = =93but not=20 with any intent to offend or hurt or intimidate anyone,=94 and that he = had =93never=20 directed profanity at any individual, but =85 [had] used it =85 as part = of his=20 everyday conversations=94); id., Tab 23 at 2 (declaration in = which V.=20 Anderson stated that using profanity was =93part of [the appellant=92s]=20 personality,=94 =93like breathing to him,=94 and that he did not =93even = know he [was]=20 doing it at times=94). Moreover, the record indicates that the = appellant=20 avoided using profanity on the record of the hearings he = conducted. =20 See, e.g., EOIR Investigative Report, Tab 21 at 2 (K. Young=92s = testimony=20 that he never saw the appellant use profanity on the record); H.T. at = 186 (V.=20 Anderson=92s testimony, when asked who was present in the courtroom when = the=20 appellant used profanity, that, =93[f]or the most part it would be the = people that=20 he was most comfortable with; [i.e.,] the court officers, his court = clerks, [an=20 EOIR official responsible for managing immigration judges=92 support = staff],=20 certain interpreters, some of the trial attorneys, =85 [and] certain = correctional=20 officers from other correctional facilities=94).

=B626 = ; =20 We note, however, that the record includes credible evidence that = the=20 appellant used profanity in communicating with at least one respondent = and that=20 he did so in a demeaning manner. A legal technician who testified = that she=20 =93got along very well=94 with the appellant, and who indicated that she = was not=20 offended by his profanity, also testified that, on one occasion, the = appellant=20 went off the record during a hearing, told a respondent, =93Just shut = the f--- up=20 and listen to me,=94 and then went back on the record. H.T. at = 117, 137=20 (testimony of C. Lopez); EOIR Investigative Report, Tab 22 at 3. =20 Furthermore, the appellant=92s profanity clearly was offensive to some = of the=20 people with whom he worked. It offended not only = Ms. Cesaratto, but=20 also an employee who sometimes substituted as an INS trial attorney = before the=20 appellant and, as noted above, one of the appellant=92s two legal=20 technicians. H.T. at 186-87 (testimony of V. Anderson); EOIR = Investigative=20 Report, Tab 25 at 1-2 (declaration of D. Roy). We note further = that we=20 agree with the agency that profanity is inappropriate in a court such as = the one=20 over which the appellant presided, and we agree that those offended by = such=20 language would not necessarily feel free to complain about it. = Under these=20 circumstances, we find that the sustained charge that the appellant = repeatedly=20 used profanity warrants a significant penalty.

=B627 = ; =20 With respect to the charge of making insensitive generalizations, = the=20 deciding official acknowledged in his testimony that the appellant had = not acted=20 maliciously; he stated in his decision notice that he did =93not believe = that [the=20 appellant was] a dishonorable person who harbor[ed] virulently racist = beliefs=94;=20 and nothing in the record suggests either that the appellant=92s rulings = or=20 decisions were affected by any prejudice or bias, or that the agency = believed=20 that they were. H.T. at 430; Removal Decision Notice at 5; = see=20 Appeal File, Tab 25 (agency=92s motion in limine at 4 (the agency=92s = statement that=20 it =93has made no allegation that Appellant was unfair or partial in his = rulings=20 or other aspects of how he treated respondent-aliens,=94 that it = =93never alleged or=20 considered that Appellant=92s rulings reflected bias,=94 and that =93it = was the=20 appearance of partiality or bias that concerned the Agency=94) = (emphasis in=20 the original). Moreover, the appellant has argued consistently = that his=20 remarks did not reflect a belief that persons of a particular = nationality=20 generally committed the crimes he mentioned in his remarks, or a belief = that=20 they generally shared the characteristics to which he referred in those = remarks,=20 and he has maintained that he was instead voicing his observations = regarding=20 patterns he had noticed among the convicted felons who appeared before=20 him. E.g., Appeal File, Tab 34 (appellant=92s post-hearing = brief at=20 4). The record supports this claim. See, e.g., H.T. = at 554-55=20 (testimony of D. Roy that he =93interpret[ed the appellant=92s] comments = as applying=20 to the aliens that were appearing in Court=94); id. at 156-57 = (testimony in=20 which C. Lopez explained that, although the appellant did not always=20 specifically state that his remarks did not apply to particular ethnic = groups in=20 general, the context in which he made the remarks showed that they = applied only=20 to the convicted felons who appeared before him); see also id. at = 425=20 (testimony of deciding official that =93[i]t may very well have been = that what he=20 really wanted to say was that =85 based on what I=92ve been [seeing] as = an=20 Immigration Judge =85 people who commit this kind of crime are usually = this=20 nationality=94).[9]

=B628 = ; =20 We note further that the appellant does not appear to have made = any of=20 the remarks at issue here while on the record during an adjudication = procedure,=20 and that he has maintained that he made the remarks only during =93down = time,=94=20 i.e., while he was waiting for a respondent or other person to be = brought to the=20 courtroom so that he could proceed with a hearing. See = Appeal File,=20 Tab 4c (transcript of the appellant=92s oral reply to the proposal = notice) at=20 9-12; H.T. at 131 (V. Anderson=92s testimony that respondents were never = present=20 during the remarks); see Appeal File, Tab 25 (motion in limine at = 8-9, in=20 which the agency stated that it had not alleged or considered that the = appellant=20 made his statements during recorded proceedings). He also has = denied=20 making any such remarks in the presence of respondents or their = attorneys; he=20 has indicated that, to the extent he made them, he did so in the = presence of=20 employees with whom he worked, i.e., the INS trial attorney, his court = clerk or=20 legal technician,[10] an=20 interpreter, and the court officers who provided security; and these = assertions=20 are supported by credible evidence, including the testimony of a = generally=20 adverse witness. See H.T. at 131, 169, 178 (V. Anderson=92s = testimony); Appeal File, Tab 4c at 11-12, 45.

=B629 = ; =20 Because the employees mentioned above generally worked with the = appellant=20 on a more or less regular basis, they presumably would be familiar with = the=20 context in which the appellant made his remarks and would understand = that they=20 did not reflect prejudice on the appellant=92s part. The record = shows,=20 however, that some of those people were offended by the remarks, and = that even=20 some who were not personally offended indicated that they believed the = remarks=20 were inappropriate and at least potentially offensive. See, = e.g.,=20 H.T. at 176 (V. Anderson=92s testimony that she was =93surprised=94 at = the appellant=92s=20 statement regarding Poles); id. at 218, 222 (P. Buchanan=92s = testimony that=20 the appellant made =93[g]eneral derogatory comments=94 about Cubans and = Dominicans,=20 and that his statement that he did not like Japanese people =93struck = [her] as =85=20 an inappropriate thing to say=94); id. at 261, 269, 280 = (testimony of J.=20 Opaciuch). More important, because the appellant was the official = in=20 control of courtroom proceedings, and the one responsible for disposing = of the=20 claims presented there, it is entirely possible that persons who = witnessed his=20 remarks regarded them as reflecting bias but were unwilling to express = their=20 views. In addition, we note that the tone of voice in which = the=20 appellant made his remarks has been described, by a witness whose = credibility we=20 have no basis for questioning, as =93tend[ing] to be dismissive and=20 flippant.=94 HT at 557 (testimony of D. Roy).

=B630 = ; =20 Perhaps most important, the appellant=92s position as an = immigration judge=20 carries with it special obligations and responsibilities. As the = agency=20 has pointed out, an immigration judge is required not only to carry out = his=20 adjudicatory responsibilities in a fair, unbiased, and impartial manner, = but=20 also to =93refrain from words or conduct manifesting bias or prejudice = of any sort=20 =85.=94 See, e.g., Agency File, Tab 29, Ex. 2 (training = materials from=20 agency=92s 1997 Immigration Judge Conference) at 23. As an = official=20 responsible for ruling on matters affecting the lives of aliens, the = appellant=20 had a special obligation to avoid giving the impression that his = decisions could=20 be influenced by the aliens=92 nationalities. His remarks linking = members of=20 certain nationalities to certain crimes and other undesirable conduct = could=20 reasonably be construed as manifesting ethnic bias. Accordingly, = the=20 sustained charge relating to those remarks warrants a very substantial=20 penalty.

=B631 = ; =20 Finally, we note that other factors relevant to the penalty = determination=20 fail to provide significant support for mitigation. Although the = appellant=20 evidently had no prior disciplinary record and no performance problems, = and=20 although he had more than 15 years of federal service at the time of his = removal, he had less than 8 years of service with the agency, and he = spent two=20 of those years in a nonduty status. Agency File, Tab 4a. We = also are=20 not persuaded that any remorse that the appellant may have expressed = constitutes=20 a significant mitigating factor. As the agency has indicated, the=20 appellant=92s response to the allegations against him appears to have = been=20 characterized more by indignation than by remorse and contrition. = See,=20 e.g., Agency File, Tabs 4c (oral reply to charges), 4d (written = reply to=20 charges).

=B632 = ; =20 Under the circumstances described above, we find that the penalty = of=20 removal does not exceed the bounds of reasonableness. See = Douglas,=20 5 M.S.P.R. at 306; Devall, 178 F.3d at 1260. The = appellant=92s=20 removal therefore is SUSTAINED.

ORDER

=B633 = ; =20 This is the final decision of the Merit Systems Protection Board = in this=20 appeal. Title 5 of the Code of Federal Regulations, section = 1201.113(c)=20 (5 C.F.R. =A7 1201.113(c)).

NOTICE TO THE APPELLANT REGARDING
YOUR = FURTHER=20 REVIEW RIGHTS

You have the right to request the United = States=20 Court of Appeals for the Federal Circuit to review this final = decision. =20 You must submit your request to the court at the following address:

United States Court of Appeals
for the = Federal=20 Circuit
717 Madison Place, N.W.
Washington, DC 20439

The court must receive your request for = review no=20 later than 60 calendar days after your receipt of this order. If = you have=20 a representative in this case and your representative receives this = order before=20 you do, then you must file with the court no later than 60 calendar days = after=20 receipt by your representative. If you choose to file, be very = careful to=20 file on time. The court has held that normally it does not have = the=20 authority to waive this statutory deadline and that filings that do not = comply=20 with the deadline must be dismissed. See Pinat v. Office of = Personnel=20 Management, 931 F.2d 1544 (Fed. Cir. 1991).

If you need further information about = your right=20 to appeal this decision to court, you should refer to the federal law = that gives=20 you this right. It is found in Title 5 of the United States Code, = section=20 7703 (5 U.S.C. =A7 7703). You may read this law, as well = as review=20 the Board=92s regulations and other related material, at our website, http://www.mspb.gov. = Additional=20 information is available at the court's website, http://fedcir.gov/contents.html. Of particular relevance is the court's = "Guide for=20 Pro Se Petitioners and Appellants," which is contained within the = court's Rules=20 of Practice, and Forms 5, 6, and 11.

FOR THE BOARD:

Washington, D.C.

/s/
Bentley M. Roberts, Jr.
Clerk of = the=20 Board