The opinion of the court was delivered by: Legrome D. Davis, J.
This matter concerns Paul Mansfield ("Plaintiff" or "Mansfield"), a former Assistant United States Attorney ("AUSA") in the U.S. Attorney's Office ("USAO") for the Eastern District of Pennsylvania, and the circumstances surrounding his removal from that position.
Mansfield began working as an AUSA in 1991. Unfortunately, Mansfield had health problems, most notably a heart condition, which resulted in hospitalizations and extended medical leaves of absence during 2001 and 2003. Despite his medical issues, Mansfield made it abundantly clear to his supervisors that he did not want or need an accommodation to do his job.
From his hiring in 1991 until April of 2006, Mansfield was a member of the Organized Crime Division, a/k/a the Organized Crime "Strike Force," of the USAO. In late-April of 2006, management informed Mansfield that he was being transferred out of the Strike Force. This "involuntary transfer" greatly upset Mansfield, and several days later, Mansfield filed the first of what would become many EEO complaints.
Over the next year-and-a-half, Mansfield failed in a number of ways to adequately perform his duties as an Assistant United States Attorney. As a result of these failures, Mansfield was progressively disciplined with a Letter of Reprimand on December 12, 2006; a 2- day suspension on February 15, 2007; and a 10-day suspension on March 28, 2007. On September 21, 2007, then-U.S. Attorney Patrick Meehan proposed Mansfield's removal.
Ultimately, Andrew Niedrick from the Executive Office for United States Attorneys ("EOUSA") upheld Mansfield's termination on October 25, 2007.
Mansfield brought this civil action on December 2, 2009, "for the purpose of seeking appropriate remedies for employment based discrimination based upon age and disability, and based upon retaliation for having filed discrimination and retaliation complaints." (Doc. No. 1 ¶ 1). Mansfield's initial Complaint contained the following four (4) counts: Count I (Rehabilitation Act / Disability Discrimination, 29 U.S.C. § 791); Count II (Rehabilitation Act / Retaliation); Count III (Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. ("ADEA")); and Count IV (ADEA / Retaliation). However, by stipulation of the parties, Counts I, III, and IV of the Complaint were voluntarily dismissed. (Doc. No. 22). As such, only Count II, the Rehabilitation Act retaliation claim, remains for our consideration.
To resolve this dispute, we conducted a bench trial that concluded on January 12, 2012.
Having thoroughly considered the documentary evidence and testimony, we make the following findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a). In brief, Mansfield asks us to find that USAO managers and supervisors disciplined and ultimately terminated him in retaliation for his protected activity, e.g., his filing of EEO complaints. The evidence does not support this conclusion. Instead, we find that Mansfield lost his job because he repeatedly failed to perform his duties; was not open-and-honest with his superiors about his failures; did not appreciate or recognize the seriousness of the problem; and showed no signs of improvement, making rehabilitation extremely unlikely.
1. We begin broadly by noting that we find no direct documentary evidence of retaliation against Mr. Mansfield. Therefore, this case turns largely on credibility: whom do we believe? What inferences should we draw from the objectively apparent facts? With that in mind, we find Plaintiff Paul Mansfield's credibility to be lacking, primarily because of the many inconsistencies in his testimony and his demeanor on the stand.
2. For example, Mansfield testified that after he was fired, he felt numb for the first week or two, but "every day, every day since then I've done something to find a job." Tr. 4, 65. However, contrary to this testimony, Mansfield admitted to his doctors that he was not going all out looking for a job and could be trying harder. Tr. 4, 65-70.
3. Second, Mansfield told an EEO investigator that he was transferred from the Strike Force because he had opposed the merger of the Strike Force into the criminal division. Tr. 4, 74. In this suit, Mansfield claims that the transfer was retaliation for protected activity of some sort.
4. Third, Mansfield testified that he thought his 2005 performance evaluation (JE26) was a "good evaluation," except for the final paragraph of the narrative which was ultimately changed. In reality, according to a contemporaneous letter Mansfield sent to Frank Labor, his friend and supervisor, Mansfield was extremely concerned about the fairness of the entire evaluation. Tr. 4, 77-80.
5. Fourth, Mansfield testified that he always wanted to stay a prosecutor, but he was looking for non-prosecutor jobs even prior to his transfer out of the Strike Force. Tr. 4, 61-63.
6. Fifth, Mansfield initially asserted that Title IIIs (wiretaps) are time- and deadline-intensive, but later claimed that Title IIIs are not necessarily time-sensitive. Tr. 2, 225; 4, 88; 4, 145. Title III applications are always time-sensitive.
7. Sixth, with respect to his failures on the Underwood brief that led to his 2-day suspension, Mansfield claimed he could not do the brief because he got sick with a stomach virus on December 14th. Then, when questioned about whether he previously said that he was sick for two (2) days, Mansfield qualified his answer by saying he was sick in the "early morning hours" of December 13th and 14th. Tr. 4, 96-97. However, Mansfield apparently saw his doctor on December 13th but never told the doctor about the stomach virus. When asked why, Mansfield testified that "it [the stomach virus] occurred sometime shortly thereafter." Tr. 4, 102-03. We simply cannot reconcile these timelines unless we believe that Mansfield somehow saw his doctor before the "early morning hours" of December 13th. We find this very unlikely.
8. Seventh, regarding an early morning e-mail Mansfield supposedly sent to Robert Zauzmer ("Zauzmer"), the Chief of Appeals in the USAO, concerning the Underwood brief, Mansfield testified that he learned that Zauzmer did not receive the e-mail from Zauzmer himself. In fact, Mansfield knew the e-mail did not go through before he even left for work. Tr. 4, 97-99; D103.
9. Eighth, Mansfield testified that during the course of a harsh verbal exchange with Zauzmer on December 14th regarding the Underwood brief, Zauzmer told him that "everybody hates you." Tr. 2, 251-54. According to Zauzmer, this is a complete fabrication. Tr. 8, 70-71. Later that same day, Mansfield wrote an e-mail to Zauzmer thanking him for his kind words and genuine expression of happiness for him (Mansfield), because Mansfield "know[s] it comes from the heart." Tr. 4, 103-04; D106. Mansfield makes no mention of the alleged "everybody hates you" comment. In addition, none of Mansfield's many EEO complaints discuss Zauzmer's supposed comment. Contrary to Mansfield's testimony, Zauzmer did not say "everybody hates you" to Mansfield.
10. Finally, Mansfield initially admitted that he was not as productive as he normally would have been while he was acting in the Dreamgirls stage production. Tr. 4, 49. On the other hand, Mansfield later testified that acting actually helps him do his work as an attorney and "certainly didn't detract or deter from my work at all. . ." Tr. 4, 164-65.
11. Given all these inconsistencies, we must view Mansfield's testimony with a skeptical eye. Additionally, as he testified, Mansfield appeared to be frustrated, even angry. After observing Mansfield's demeanor and the tone of his testimony, we have no doubt that Mansfield still harbors serious resentment towards those in the USAO who he perceives to have wronged him. This gives us further reason to pause before blindly accepting Mansfield's version of events.
12. In contrast, we found the defense witnesses, including
Meehan,*fn2 now-U.S. Marshal David Webb,*fn3
former Chief of the Criminal Division Linda Dale Hoffaand
Chief of Appeals Robert Zauzmer, to be credible. They testified
consistently regarding Mansfield's performance deficiencies and the
reasons for their actions. We saw no anger or resentment towards
Mansfield, but rather genuine concern and sadness about the situation.
As detailed immediately below, numerous USAO managers and supervisors
testified that they were not trying to drive Mansfield out of the
office, but rather attempting to help him do his job and become more
productive. In large part, we believe them.
13. For example, Linda Hoffa, then-Chief of the Criminal Division, testified that she hoped moving Mansfield out of the Strike Force would invigorate and energize him by surrounding him with new people and giving him a new supervisor. Tr. 1, 44:4-12. Hoffa also testified that the progressive discipline was designed to get through to Mansfield. She hoped he would turn it around and felt sad when he did not because she wanted him to succeed. Tr. 1, 83; 1, 86-87.
14. Similarly, Laurie Magid, then-First Assistant to U.S. Attorney Patrick Meehan, testified that they took disciplinary actions "hoping that the notice provided by the discipline and the serving of the discipline would cause him [Mansfield] to change the way he was conducting himself and that he would be able to perform the way we expected him to." Tr. 2, 59:9-15. Additionally, on March 4, 2007, Zauzmer at least broached the subject of terminating Mansfield after his failures in the Thomas and Gay cases. See D123. However, Magid and the rest of upper management gave Mansfield a 10-day suspension and another chance instead. Tr. 2, 75:1-14. This is not the action of an employer trying to hurry someone out the door. Tr. 8, 73-74.
15. Likewise, U.S. Attorney Meehan testified that prior to the disciplinary action, management was trying to find a way for Mansfield to carry his share of the load. Tr. 5,
22. In that vein, the office assigned Mansfield to work on immigration briefs ("OIL briefs") to "give him work that he would do so that we would be able to handle the requirements of the office." In a February 16, 2007, meeting, Meehan asked Mansfield for suggestions as to how the office could help him be more productive. Tr. 6, 20. According to Meehan, the disciplinary proceedings were not punitive. Rather, management hoped discipline would help Mansfield understand the seriousness of the situation. In other words, the office made "legitimate efforts to try to work along with an employee that we cared about." Tr. 6, 22. "[I]t was an effort on the part of everybody, [a] legitimate, heartfelt effort to try." Tr. 6, 82.
16. David Webb's testimony dovetails with that of the others -- management tried to work with Mansfield, not vindictively railroad him out of the office. In particular, management told Webb that they were transferring Mansfield to Webb's team so Webb could "work with him and get his stats up a little bit and hopefully he'll be a productive member of the office." Tr. 7, 126. Webb tried to do just that by giving Mansfield short cases so he could get his "feet on the ground here in the criminal division and get rolling and be productive." Tr. 7, 102.
17. Finally, in the context of the OIL brief assignment, Robert Zauzmer testified that "[t]he whole point here was to see if we could help him, see if we could identify why, suddenly, there was this productivity problem and figure out a way to get around it." Tr. 8, 42. Even though there were some problems with Mansfield's work in late 2005 and early 2006, he was not disciplined until December of 2006. As Zauzmer noted, discipline is "an extraordinary thing." Tr. 8, 43-44. This all indicates to us that Mansfield's supervisors did not act rashly, or prematurely, or in a retaliatory manner, in imposing discipline. Rather, numerous managers sincerely tried to work with Mansfield and hoped he would succeed.
18. Now that we have discussed the critical credibility issue, we turn to the specific facts and circumstances of this case. We present the facts in chronological order and in some detail because context plays such an important role in a retaliation case such as this. In other words, no employment decision occurs in a vacuum. The circumstances surrounding the decision give us insight into the employer's state of mind. Here, we must determine why the USAO disciplined Paul Mansfield and ultimately terminated his employment. Was it for the legitimate reasons stated, or was it in retaliation for Mansfield's EEO complaints (or other protected activity)? The following facts help illuminate that important question.
19. As noted supra, Paul Mansfield had medical issues, including a heart problem, that led to his hospitalization in 2001 and 2003. On June 14, 2001, after Mansfield's first hospitalization, Mansfield's doctor Fania Samuels sent a letter to Robert Courtney, Mansfield's Strike Force supervisor, advising Courtney that Mansfield should do no heavy lifting, reduce his stress level as much as possible, and limit his work to forty (40) hours per week barring "exceptional circumstances" such as preparing for trial. Tr. 4, 14-15.
20. However, several months later on September 5, 2001, Dr. Samuels sent a follow-up letter to Courtney stating that Mansfield "continued to make excellent progress," so she did not believe that Mansfield needed any special accommodations. Dr. Samuels further opined that Mansfield could perform the essential functions of an AUSA, e.g., trials, hearings, motions, grand jury proceedings, and appellate work. Tr. 4, 17-18. In fact, no one ever communicated to anyone at the U.S. Attorney's Office that Mansfield needed an accommodation to do his job. Tr. 4, 18. In the same vein, no doctor or medical provider ever opined to the USAO that Mansfield was "disabled." Tr. 4, 13:19-14:7.
21. The evidence tells us that in the early 2000s, Mansfield was a solid but unspectacular AUSA. From 2001 through 2005, Mansfield's annual performance evaluations indicate that he "met-to-exceeded expectations" four (4) times*fn4 and "substantially exceeded expectations" once, in 2002. See JE22, JE23, JE24, JE25, JE26. However, Mansfield's legal writing required some supervisory review. See JE23, JE24, JE25. As Laurie Magid correctly recognized, these are "not glowing evaluations." Tr. 2, 50:17-51:1. According to U.S. Attorney Meehan, "pretty much the entire office gets a satisfactory" rating. Tr. 6,
63. Additionally, Zauzmer characterized Mansfield as a soldier, not a general, but acknowledged that Mansfield worked very capably over the years. In fact, prior to 2003 or 2004, Zauzmer thought quite highly of Mansfield's appellate work. Tr. 8, 10-11; 8, 28.
22. By mid-2003, U.S. Attorney Meehan had learned of Mansfield's heart problems. Tr. 5, 4. On September 30, 2003, following Mansfield's second extended hospitalization, Mansfield's doctor Frank Marchlinski sent a letter to Courtney declaring that Mansfield could return to work full time without any physical restrictions on October 1, 2003. Tr. 4, 18-19.
23. In January of 2004, then-First Assistant U.S. Attorney Geoff Moulton had a discussion with Mansfield about his work as an AUSA, speaking generally about options such as disability retirement, workers' compensation, and a potential transfer from the Strike Force to the Criminal Division. Tr. 1, 157-59. At this time, almost three (3) years before the first formal disciplinary action against Mansfield, Moulton was aware that Mansfield was not among the most productive attorneys in the Strike Force and was reluctant to take the lead on investigations. Tr. 1, 159.
24. Moulton memorialized his conversation with Mansfield in a letter to file dated January 16, 2004. See D2. Apparently, Mansfield initially asked Moulton whether the office would accommodate his heart condition by (1) permitting his friend Frank Labor to supervise him and assign him work, and (2) confining his role to assisting on cases rather than taking the lead. Moulton explained that the next step in the accommodation dialog would entail Mansfield supplying medical documentation. In response, Mansfield affirmatively stated that he was not requesting any job accommodation. See D2. In other words, Mansfield, not management, ended the accommodation dialog. This became a common theme over the course of the next several years.
25. By his own account, Mansfield has "had a hobby of acting since [he] was a little boy. And it has been a lifelong avocation." Tr. 4, 41:4-7. On February 9, 2004, Mansfield sent a letter to Tina Fey at Saturday Night Live in New York City in hopes of appearing on the show (for a second time). Tr. 4, 50-51; D182. Mansfield told Fey that he still worked as a government attorney but devoted virtually all his free time (nights, weekends, and vacation time) to acting and performing. Tr. 4, 50-51.
26. Management had concerns about Mansfield's performance at work well before Mansfield's transfer out of the Strike Force and subsequent EEO complaints. For example, on April 22, 2004, two (2) years prior to Mansfield's transfer and initial EEO complaint, Zauzmer e-mailed Magid, Courtney, and others, to express concern about Mansfield's handling of the Scott-Minnis-Davis appeal. See D5. In this appeal, the Third Circuit granted Mansfield two thirty-day extensions to submit his brief and then ordered that no further extensions would be granted. Even though Mansfield had eighty-one (81) days to complete the brief, the draft Mansfield submitted to Zauzmer was a woefully inadequate "cut-and-paste" job. This forced Zauzmer, for the first time in his career, to ask the Third Circuit for another extension after the court had said no more would be granted. Despite this additional extension of time, Mansfield's next brief still had large gaps, and Zauzmer had to write much of it himself. Tr. 8, 11-15.
27. Surprised and concerned, Zauzmer talked to Mansfield about the situation. Zauzmer asked if medical problems led to Mansfield's poor handling of the appeal brief. In response, Mansfield stated that health problems were not to blame; he just had a difficult time with the brief. Tr. 8, 15.
28. However, during the 2004-2005 time frame, Mansfield did tell management about his health problems, including that his medication caused him to "zone out" and have difficulty reading cases and doing legal research. Tr. 2, 201-02.
29. Also during this time period, the USAO faced significant fiscal challenges. According to U.S. Attorney Meehan, because of cutbacks in funding, the office could not replace the attorneys who left. This meant more work for those who remained. Tr. 5, 12. When one colleague does not do his share, the work falls on the shoulders of others. Tr. 5, 18.
30. By mid-2005, Mansfield's health had gotten much better. As stated by Mansfield's doctors in a May 10, 2005, letter, Mansfield was doing very well. The doctors were successfully treating Mansfield's sleep apnea, and his energy level and ability to concentrate had greatly improved. See Tr. 4, 30-31; D209, at 15.
31. In October of 2005, the Strike Force merged into the Criminal Division. According to Frank Labor, Mansfield openly objected to the merger during merger meetings conducted by Hoffa and Magid. Tr. 1, 212-13. Hoffa admitted that she knew there was some dissatisfaction with the Strike Force merger into the Criminal Division. Tr. 1, 20:11-17.
32. In December of 2005, management selected Mansfield and one other individual in the Criminal Division for a six-month immigration brief ("OIL brief") writing assignment. Tr. 2, 209. According to Hoffa, she looked at the entire Criminal Division when deciding to whom to give the OIL brief assignment. Tr. 1, 27:18-28:2. She selected Mansfield because he was a good writer; he had "one of the lightest dockets"; he did not have difficult or pressing cases; he was not being as productive as he should have been; and she would not have to take much work away from him because of his light docket. Tr. 1, 31-32. Magid's independent testimony corroborates Hoffa's -- Mansfield was assigned OIL briefs because he had a very light docket, so the assignment would cause less disruption to Mansfield than it would to other AUSAs. Tr. 2, 63:15-64:7.
33. On December 21, 2005, Zauzmer e-mailed Magid and Hoffa expressing concern about yet another Mansfield brief, i.e., the Hoxha brief. In Zauzmer's opinion, even though the Third Circuit had granted two months of extensions, Mansfield had never really read the cases cited by the appellant. Zauzmer had to rewrite much of the brief. See D15. Zauzmer saw Hoxha as a replay of the situation in Scott-Minnis-Davis. Mansfield turned-in an unfinished brief right before the final deadline, once again forcing Zauzmer to ask the Third Circuit for more time after the court had ordered that no more extensions would be permitted. Tr. 8, 18-19. And again, Mansfield submitted an inadequate "cutand-paste" job even after the last ...