The opinion of the court was delivered by: Cooper, District Judge
Plaintiff, Joseph I. Mamman ("Mamman") brought this action against the Secretary of the United States Department of Labor ("DOL"), alleging discrimination and retaliation under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"), and, in effect, the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"). (Dkt. entry no. 9, Am. Compl.) Mamman also seeks judicial review of the proceedings before the Merit Systems Protection Board ("MSPB"), which affirmed DOL's termination of his employment, finding both that the charges leading to the termination were substantiated and that Mamman had not proved that the termination occurred due to unlawful discrimination or retaliation. See 5 U.S.C. § 7703 (providing for judicial review of MSPB decisions).
DOL moved for summary judgment in its favor pursuant to Federal Rule of Civil Procedure ("Rule") 56. (Dkt. entry no. 80, Def. Mot. for Summ. J.) The Court heard oral argument on the motion on March 10, 2011, and denied the motion without prejudice. (Dkt. entry no. 96, 3-10-11 Order.) However, the Court advised the parties that it intended "to identify and isolate the existing claims and get them accurately defined" before proceeding to trial on Mamman's discrimination claims and conducting an administrative appeal, and noted that in isolating the existing claims, it might reconsider the summary judgment motion. (Dkt. entry no. 98, 3-10-11 Hr'g Tr. at 46:6-20.)
The Court now considers whether Mamman's allegations that certain DOL employees provided perjured testimony or suborned perjury during the MSPB proceedings held on April 19-20, 2006, as retaliation for Mamman's undertaking protected Equal Employment Opportunity ("EEO") activity, should remain in the case going forward to trial. (Am. Compl. at ¶¶ 35-44.) For the following reasons, we conclude that they should not, and will be limited to the part of the case comprising this Court's review of the administrative proceedings below pursuant to the deferential standard of review provided in 5 U.S.C. § 7703(c), not the part of the case that will presumably go to a jury for trial de novo.
This is a"mixed" case, in that Mamman both challenges DOL's personnel action, as appealed to the MSPB, and alleges that the basis for his termination was unlawful discrimination. See 5 U.S.C. §§ 7702(a)(1), 7703(b)(2); Kligman v. IRS, 272 Fed.Appx. 166, 168-69 (3d Cir. 2008); see generally Bush v. Lucas, 462 U.S. 367, 385-90 (1983); Kean v. Stone, 926 F.2d 276, 281-89 (3d Cir. 1991) (discussing scheme for judicial review of MSPB decisions pursuant to Civil Service Reform Act of 1978 and Federal Courts Improvement Act of 1982). "In a mixed case, the complainant is entitled to trial de novo" on the discrimination claim, whereas the MSPB's decision concerning the agency personnel action is reviewed under a deferential standard. New v. Principi, No. 99-3782, 2003 WL 22331748, at *5 (E.D. Pa. Oct. 8, 2003); see 5 U.S.C. § 7703(c) (reviewing court should uphold MSPB decision unless "(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence"); Estate of Schultz v. Potter, 349 Fed.Appx. 712, 714 n.1 (3d Cir. 2009).
Mamman was employed by DOL as an Equal Opportunity Specialist in the Mountainside, New Jersey, district office, which is located in DOL's Northeast Region. (Am. Compl. at ¶¶ 5-7.) A DOL audit of employees' government credit card use in August 2004 revealed that seven employees within the Northeast Region, including Mamman, had misused their government credit cards. (Id. at ¶¶ 10-12.) Mamman's misuse of his government credit card involved regularly taking unauthorized cash advances, each of which he timely repaid. In response to the audit, Mamman tendered his resignation on August 31, 2004, to be effective October 1, 2004. (Id. at ¶¶ 17-18.) Apparently discovering that no one else accused of credit card misuse had been terminated by DOL, Mamman attempted to withdraw his resignation, but DOL declined to allow him to do so, and his employment was terminated on October 1, 2004. (Id. at ¶¶ 18-20.)
Mamman appealed his termination to the MSPB, alleging that DOL's refusal to allow him to withdraw his resignation was motivated by discrimination on the basis of his national origin, gender, age, and race. (Id. at ¶ 21.) That appeal was identified as MSPB Docket No. NY-0752-05-0024-I-1. (Id.) While that appeal was pending but before any hearing occurred, DOL voluntarily reinstated Mamman with back pay, and the Administrative Judge, determining that he had jurisdiction over the discrimination claim notwithstanding the mootness of the personnel action aspect of the appeal, issued a finding of no discrimination. (Id. at ¶¶ 22-23; dkt. entry no. 80, Ruymann Decl., Ex. 1, 4-21-05 MSPB Initial Decision.)
Mamman alleges that after he returned to work, he encountered "harassment . . . and reprisal for his prior EEO activities," and sought precomplaint counseling. (Am. Compl. at ¶ 26.) Mamman was presented with a Notice of Proposed Removal on April 21, 2005, setting forth thirty-five specifications of misuse of his government credit card, four specifications of failure to respond to his supervisor while on "flexiplace," and twelve specifications of misuse of his government telephone line. (Id. at ¶ 27.) Mamman's supervisor issued the final Removal Decision on June 20, 2005, effective July 8, 2005. (Id. at ¶ 28.) He appealed his termination to the MSPB; that appeal was designated MSPB Docket No. NY-0752-05-0323-I-2. (Ruymann Decl., Ex. 2, 5-25-06 MSPB Initial Decision.) The Administrative Judge assigned to that appeal held a hearing on April 19-20, 2006, and issued an Initial Decision, dated May 25, 2006, affirming DOL's personnel action on the basis that the charges of credit card and telephone misuse and flexiplace violations were sustained. (Id.; dkt. entry no. 80, Def. Stmt. of Undisputed Facts at ¶¶ 62-63.) The Administrative Judge further found that Mamman had failed to establish his affirmative defenses of discrimination and retaliation. (5-25-06 MSPB Initial Decision; Def. Stmt. of Undisputed Facts at ¶¶ 64-65.) Mamman was unsuccessful in his appeals of the 5-25-06 Initial Decision to the MSPB and the Equal Employment Opportunity Commission ("EEOC"). (Def. Stmt. of Undisputed Facts at ¶¶ 68-69; Am. Compl., Ex. A, 10-6-06 MSPB Final Order & 12-19-06 EEOC Decision affirming 5-25-06 Initial Decision.)
Mamman filed the Complaint in this action on June 15, 2006, seeking review of the finding of no discrimination in light of his claim that "DOL's sole reason for not accepting the withdrawal of his resignation was to discriminate against him as compared to younger, non-Nigerian and female employees, and to discriminate against him based on his prior EEO activity." (Dkt. entry no. 1, Compl. at ¶ 22.)
Mamman now contends, inter alia, that witnesses appearing at the April 19-20, 2006 MSPB hearing on behalf of DOL "engaged in a conspiracy to cover up the true events leading to Mr. Mamman's termination," "conspired to lie under oath" and "provided perjured testimony" at that administrative hearing, and that the attorney representing DOL "knew the testimony was perjured and was guilty of subordination [sic] of perjury." (Am. Compl. at ¶¶ 35-43.) Mamman first made these allegations in a complaint filed with DOL's Civil Rights Center ("CRC") on July 20, 2006, which CRC dismissed for failure to state an actionable claim under the EEO regulations and because the "allegations were raised in the course of proceedings before the . . . MSPB" and therefore considered a collateral attack on an independent adjudicatory process. (Ruymann Decl., Ex. 5, 9-15-06 Letter from CRC to Mamman re: CRC Complaint No. 06-02-098.) He brought a second action in this Court, docketed as Civil Action No. 06-6084 and subsequently consolidated with the instant action, alleging that DOL management officials or representatives "were discriminatory against him on the basis reprisal [sic] for his prior EEO activity, which consisted of two MSPB cases and one EEO case," by lying under oath or suborning perjury during the April 19-20, 2006 MSPB hearing. Mamman v. Chao, ...