An Immigration Judge with the Department of Justice, fired by the Department for repeated use of “sexist and ethnically insensitive generalizations” and profanity, failed to persuade the federal appeals court to overturn the Merit Systems Protection Board decision that upheld his firing. (Levinsky v. Department of Justice, C.A.F.C. No. 06-3046 (non precedent), 12/8/06) In its decision affirming the firing, the appeals court summarized the facts:
Levinsky was an Immigration Judge with the Executive Office for Immigration Review within the Department of Justice. He presided over deportation proceedings involving aliens who had been convicted of felonies in Fishkill, NY. A trial attorney who worked with Levinsky accused him of misconduct and eventually brought a discrimination complaint (sex, religion, race, and national origin by subjecting her to a hostile and discriminatory work environment) naming Levinsky as the alleged discriminating official. The usual investigations followed and resulted in a report finding that Levinsky had engaged in offensive an inappropriate communications and tagging him with subjecting the complainant to a “discriminatory hostile work environment, in violation of Title VII…” (p. 2)
Eventually it was recommended that Levinsky be suspended, sent to sensitivity training and be monitored due to his “professional misconduct (e.g. by expressing prejudiced opinions about various ethnic groups) or had exercised poor judgment (e.g., by using profanity in the courtroom)…” (p. 2)
The Chief Immigration Judge proposed Levinsky’s removal and the deciding official agreed. Levinsky appealed to the MSPB. The Administrative Judge mitigated the removal to a 60-day suspension, but the full Board reinstated his removal. (Levinsky v. Dep’t of Justice, 99 M.S.P.R. 574 (2005)) (p. 3)
Levinsky argued to the appeals court that the agency’s “upward departure”—it had been recommended he be suspended, but instead the proposing and deciding officials increased the penalty to removal—violated agency procedures. The court considered the argument, but stated, “we do not find Levinsky’s argument to be persuasive.” There was no formal internal agency policy that Levinsky could cite to, and testimony before the AJ indicated that the disciplinary officials could override the internal recommendation. (p. 6) Summing up, the court stated, “Therefore, Levinsky does not convince us that …[the] exercise of …final authority to go above the. …recommended suspension penalty and remove Levinsky was a violation of agency procedures.” (p. 7)
The upshot—the Board’s upholding of Levinsky’s removal is affirmed by the court.