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U.S. Office of Special Counsel

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Washington, D.C. 20036-4505


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    The U.S. Office of Special Counsel (OSC) today announced that, on February 2, 2000, the Chief Administrative Law Judge (CALJ) of the Merit Systems Protection Board (MSPB) granted OSC’s petition for corrective action on behalf of Mr. Paul D. Moredock for violation of his First Amendment rights by the Immigration and Naturalization Service (INS). The CALJ ordered INS to reinstate Mr. Moredock with backpay, plus interest and benefits, retroactive to the date of his unlawful removal, on March 31, 1995.

    Mr. Moredock was fired by INS within days after he was appointed to the position of Asylum Officer in its Los Angeles office. His termination was based solely on remarks that he made during a private conversation that took place while he and several colleagues were on break from a training session. During the conversation, Mr. Moredock expressed his opinion that INS policy disfavored Haitians as compared to Russian Jews. Mr. Moredock said that he believed this policy was based upon the government’s belief that immigrants from Haiti were more susceptible to Acquired Immune Deficiency Syndrome (AIDS) than Russian Jews. He also suggested that there could be a genetic link between HIV susceptibility and race.

    A third employee overheard Mr. Moredock’s conversation and took offense at his remarks concerning HIV susceptibility. Mr. Moredock explained that he did not intend to offend and asked the employee if her reaction was “on a personal or intellectual level.” A supervisor then intervened and the conversation ended.

    Within days, the Acting Director of the Los Angeles office issued Mr. Moredock a notice of termination. The notice of termination stated that he had made a “racial comment” that was offensive, that INS had “zero tolerance for racial comments” and that “asylum adjudication is not for the prejudiced.” Mr. Moredock was never interviewed in connection with the incident to get his side of the story. The Acting Director of the Los Angeles office stated that she was too “busy” to do so.

    The CALJ agreed with OSC that INS violated the First Amendment when it fired Mr. Moredock on the basis of his remarks on a matter of public concern, without affording him due process, and without adequate justification. The CALJ concluded that INS had failed to demonstrate that Mr. Moredock’s remarks during a private conversation demonstrated his unfitness to serve as an Asylum Officer, or that it otherwise had a legitimate interest in removing him because of those remarks. He also found that INS acted unlawfully when it failed to conduct a reasonable inquiry into the matter that “would likely have prompted [the Los Angeles Acting Director] to consider more carefully the protected nature of Mr. Moredock’s speech and the weakness of the evidence that the speech was inappropriate or harmful.”

    Special Counsel Elaine Kaplan praised the CALJ’s decision. She observed that “two important cornerstones of the merit system are the protection of federal employees’ rights to speak freely on matters of public concern and their right to due process.” “It is crucial that federal agencies tread cautiously and proceed fairly when considering actions against employees that are based upon their speech.” “OSC,” she said, “will continue to aggressively investigate and prosecute cases” in which employees’ free speech rights are violated.

MSPB Docket Number CB-1216-99-0019-T-1.