The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DEPARTMENT OF HEALTH & DOCKET NUMBER
HUMAN SERVICES, CB-7521-12-0018-T-1
Petitioner,
v.
DATE: November 13, 2014
LEANN R. CANTER,
Respondent.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Jacqueline Zydeck, Esquire, and Jeffery Cusic, Esquire, Chicago, Illinois,
for the petitioner.
Peter B. Broida, Esquire, Arlington, Virginia, for the respondent.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The respondent has filed a petition for review of the initial decision, issued
by an administrative law judge, which held that the petitioner established good
cause to remove the respondent from her position as an administrative law judge.
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
Generally, we grant petitions such as this one only when: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the judge’s rulings during either the course of the
appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. See
Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, and based on the
following points and authorities, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the administrative law
judge’s initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
BACKGROUND
¶2 The petitioner filed a complaint seeking the authority to remove the
respondent from her administrative law judge position with the agency’s Office of
Medicare Hearings and Appeals based on the following: charge 1 - Unauthorized
Full-Day Absences from Duty Station, 54 specifications occurring between May
23, 2011, and January 19, 2012; charge 2 - Unauthorized Partial-Day Absences
from Duty Station, 82 specifications occurring during the same time period;
charge 3 - Insubordination, three specifications; and charge 4 - Neglect of
Assigned Duties, one specification. Initial Appeal File (IAF), Tab 1 at 1-48. As
to charges 1 and 2, the petitioner alleged that, on the dates cited, the respondent
did not report for work, was not authorized to work outside the office, and did not
3
request leave to account for her absences. As to Charge 4, 2 the petitioner alleged
that, between January 24, 2012, and April 24, 2012, the respondent slept in her
office at least twice a week. Id. The respondent argued that her absences were
caused by her medical condition for which the agency had granted her an
accommodation, and that, based on a proper weighing of the factors set forth by
the Board in Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981),
either no penalty or a lesser penalty than removal is warranted under the
circumstances of this case. IAF, Tab 18.
¶3 After convening a hearing, the administrative law judge issued an initial
decision in which he sustained charges 1, 2, and 4, IAF, Tab 57, Initial Decision
(ID) at 11-12, 22-23, and found that good cause exists to remove the respondent,
ID at 23-32.
¶4 The respondent has filed a petition for review, Petition for Review (PFR)
File, Tab 3, the petitioner has responded, id., Tab 5, and the respondent has
replied to the petitioner’s response, id., Tab 6.
ANALYSIS
¶5 The respondent has not contested the administrative law judge’s decision to
sustain charges 1 and 2. Therefore we have not further considered those issues.
See 5 C.F.R. § 1201.115 (the Board normally will consider only issues raised in a
timely filed petition for review or cross petition for review). The respondent
asserts that the administrative law judge erred in sustaining charge 4, PFR File,
Tab 3 at 30-31, and improperly weighed the Douglas factors in finding good
cause to impose removal, id. at 3-56.
2
The agency withdrew charge 3, Insubordination, during adjudication. IAF, Tabs 14,
38.
4
The administrative law judge properly sustained charge 4 – Neglect of Assigned
Duties.
¶6 As noted, the petitioner charged that, between January 24, 2012, and
April 24, 2012, the respondent slept in her office at least twice per week. IAF,
Tab 1 at 43. The administrative law judge found this charge sustained based on
the testimony of the respondent’s team legal assistant that she initially observed
the respondent sleeping in her office and that, after that, she observed the
respondent sleeping frequently, approximately twice a week; the testimony of an
attorney decision writer that she observed the respondent sleeping in her office;
and the respondent’s admission that, at times, she slept in her office. ID at 23.
The administrative law judge considered the respondent’s argument that the
petitioner’s witnesses’ testimony was insufficient to sustain the charge, given her
own testimony that her sleeping was limited, but found, based on the evidence as
a whole, and having observed the demeanor of the witnesses at the hearing, that
the testimony of the petitioner’s witnesses was sufficient to meet the
preponderance of the evidence standard and that the respondent’s explanation was
not credible. ID at 23.
¶7 On review, the respondent asserts that the agency did not charge, and the
administrative law judge did not find, that the respondent neglected her assigned
duties of conducting hearings and writing decisions under the Administrative
Procedure Act, ensuring fair and impartial rights to Medicare applicants. PFR
File, Tab 3 at 31; IAF, Tab 1, Subtab 3. It is true that the agency is required to
prove the charge as it is set out in the notice of proposed removal, not some other
offense that might be sustainable by the facts of the case. See King v.
Nazelrod, 43 F.3d 663, 667 (Fed. Cir. 1994); see also Spruill v. U.S. Postal
Service, 84 M.S.P.R. 36, ¶ 17 (1999). Here, however, the charge at issue, neglect
of duties, is one of the charges included in the agency’s Guide for Disciplinary
Penalties, which provides that it includes not only careless/negligent work, but
also loafing, sleeping on duty, wasting time, and conducting personal business
5
while on duty. IAF, Tab 1, Subtab 15 at 6. Under the circumstances, the agency
was not required to charge the respondent with sleeping on duty. The supporting
specification of charge 4 describes incidents wherein the respondent was observed
sleeping on duty. Id., Tab 1 at 44. The administrative law judge found credible
the testimony of the petitioner’s witnesses that the respondent slept in her office
when she was supposed to be working, and not credible the respondent’s
testimony that the sleeping on duty to which she admitted was limited. ID
at 22-23. Despite the respondent’s argument on review, we discern no reason to
reweigh the evidence or substitute our assessment of the record evidence for that
of the administrative law judge. See Crosby v. U.S. Postal Service, 74 M.S.P.R.
98, 105-06 (1997). We find therefore that the respondent has not established that
the administrative law judge erred in sustaining charge 4.
Good cause exists to remove the respondent based on the sustained charges.
¶8 In an original jurisdiction case, where the Board is the first entity to
consider the evidence of the charged conduct as well as any mitigating factors,
the choice of the penalty is for the Board. Social Security Administration v.
Steverson, 111 M.S.P.R. 649, ¶ 18 (2009), aff’d, 383 F. App’x 939 (Fed. Cir.
2010). The Board has adopted for guidance in assessing a penalty in an original
jurisdiction the same standards required of an agency in an appellate case. Thus,
the Board will examine the record in this case with a view to balancing the
relevant Douglas factors. See Social Security Administration v.
Brennan, 27 M.S.P.R. 242, 251 (1985), aff’d, 787 F.2d 1559 (Fed. Cir. 1986).
The Board will consider whatever evidence of record affects the choice of
penalty. Social Security Administration v. Glover, 23 M.S.P.R. 57, 79 (1984). In
evaluating whether a penalty is reasonable, however, the Board will consider,
first and foremost, the nature and seriousness of the misconduct and its relation to
the employee’s duties, position, and responsibilities. E.g., Jackson v. Department
of the Army, 99 M.S.P.R. 604, ¶ 6 (2005).
6
¶9 In considering the penalty in this case, we acknowledge, as did the
administrative law judge, mitigating factors which include the respondent’s 15
years of federal service and her 4 years of military service. ID at 25. She has no
prior disciplinary record. See, e.g., Jackson, 99 M.S.P.R. 604, ¶ 8; ID at 25. We
also note that the agency has not disputed the respondent’s claimed productivity.
The administrative law judge considered a medical condition, dating back to
surgery she underwent in 1991. ID at 32. The respondent urges on review that
her medical condition should be afforded significant consideration. PFR File,
Tab 3 at 25-30.
¶10 The weight to be given an employee’s medical condition necessarily
depends on whether that condition played a part in the charged conduct. See
Roseman v. Department of the Treasury, 76 M.S.P.R. 334, 345 (1997). Even if
the respondent’s medical condition may have been a factor in her absences from
the worksite on the dates charged, she has not shown that it prevented her from
requesting leave to support her absences. In this regard, the respondent argued
that, during the period in question, she was operating under an accommodation
granted by the agency which allowed her to work at home on any occasion when
she did not feel well enough to report to duty. The administrative law judge
carefully considered the respondent’s claim that she requested and was provided
an accommodation. ID at 12-22. He first considered the evidence the respondent
submitted, specifically, her own testimony that, in February 2006, the then Acting
Managing Administrative Law Judge told her she could have an accommodation
after she informed him of her medical condition and how it affected her, ID
at 13-14; and that, in December 2008, she told the then Associate Chief
Administrative Law Judge that she was working from home as needed because of
her symptoms, and that he did not object. ID at 14. The administrative law judge
also considered the testimony of several of the respondent’s coworkers and
subordinates that they believed she had an accommodation. The administrative
law judge found, however, and we agree, that such testimony did not support the
7
respondent’s claim that she had requested and been granted an accommodation by
the agency. ID at 15. The administrative law judge then considered the evidence
the petitioner submitted, specifically, testimony of the then Acting Managing
Administrative Law Judge who contradicted the respondent’s version of the
February 2006 conversation, ID at 16; and testimony of the then Associate Chief
Administrative Law Judge that the respondent never made any request for an
accommodation and that he was not otherwise informed of such a request. ID
at 17. The administrative law judge also considered testimony of the then
Associate Chief Administrative Law Judge and another Associate Chief
Administrative Law Judge that the respondent was not enrolled in the agency’s
flexi-place program pursuant to which individuals could work from home with
several conditions, that is, that the individual secure supervisory approval, work
full days, sign out any files taken home, and complete forms documenting the
hours worked. 3 ID at 17-18. The administrative law judge also considered the
testimony of the Deputy Chief Judge that, when he confronted the respondent in
2012 about her absences, she did not mention any accommodation. ID at 18; IAF,
Tab 44, Exhibits (Exs.) 12, 33. Acknowledging the applicability of the Board’s
decision in Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987), the
administrative law judge found the testimonies of the petitioner’s witnesses
credible and persuasive, ID at 12, 21, and the testimony of the respondent not
credible, ID at 21-22. The Board defers to such findings when they are based
explicitly or implicitly on the observation of the demeanor of testifying
witnesses, and may overturn credibility determinations only when the Board has
“sufficiently sound” reasons for doing so. Haebe v. Department of
Justice, 288 F.3d 1288, 1301-02 (Fed. Cir. 2002). We find no such reasons here.
We agree with the administrative law judge that the respondent did not
demonstrate that she had been granted an accommodation allowing her to work
3
The respondent admitted that she did not comply with the terms of the agency’s
flexi-place program. Hearing Transcript (HT) at 671-72.
8
from home whenever she deemed it necessary or that she was in any manner
prevented from requesting leave to support her absences. Therefore, although we
afford consideration to the respondent’s medical condition, we find, based on our
review, that she has not shown that it is deserving of significant consideration as
a mitigating factor because it did not play a part in the charged misconduct.
¶11 On review, the respondent also argues that she established her claim of
disparate penalties. PFR File, Tab 3 at 45-61. The administrative law judge
found that the two other employees were not comparators, but that, even if they
were, the agency demonstrated sufficient differences to support the different
sanctions. ID at 30-31. To show that employees are comparators, the
appellant/respondent must show that there is enough similarity between both the
nature of the misconduct and other factors to lead a reasonable person to conclude
that the agency treated similarly-situated employees differently. Ellis v. U.S.
Postal Service, 121 M.S.P.R. 570, ¶ 11 (2014). The alleged comparators are two
other administrative law judges in the same field office as the respondent who
were found to have significant amounts of unauthorized absences but were
suspended. While these factors suggest that all three administrative law judges
were similarly-situated, the amount of the respondent’s absences far exceeded
those of the other two administrative law judges during the same time period.
IAF, Tab 44, Exhibit (Ex.) 21 at 14-16 of 17 (78.25 hours unauthorized for first
administrative law judge), Ex. 28 at 18-20 of 21 (214.50 hours unauthorized for
second administrative law judge); Ex. 34 (797.1 hours unauthorized for the
respondent). And, even though charge 4, the other charge brought against the
respondent and sustained, is less significant than the unauthorized absences
charges, HT at 141 (testimony of Deputy Chief Administrative Law Judge), no
additional charges were involved in the actions contemplated against the other
two administrative law judges. These factors support a finding that there is not
enough similarity to lead a reasonable person to conclude that the agency treated
similarly-situated employees differently.
9
¶12 In connection with this claim, the petitioner argued for the first time in its
post-hearing brief that it need not explain any differences in treatment because
the agency did not file complaints with the Board as to the other two
administrative law judges, but rather agreed by means of settlements, to impose
suspensions. IAF, Tab 54 at 46. The respondent moved to strike the argument on
the basis that the petitioner waived any objection to consideration of the evidence
in question by proffering that evidence and addressing it at the hearing, only
raising the issue for the first time in its post-hearing brief. Id., Tab 55. The
petitioner opposed the motion, id., Tab 56, which the administrative law judge
denied as moot, finding that the petitioner did not waive the opportunity to
present argument and authority supporting the respondent’s removal, including
responding to her claim of disparate treatment. ID at 6.
¶13 The Board has held that, where another employee receives a lesser penalty,
despite apparent similarities in circumstances, as a result of a settlement
agreement, the agency will not be required to explain the difference in treatment. 4
Portner v. Department of Justice, 119 M.S.P.R. 365, ¶ 20 n.4 (2013); Blake v.
Department of Justice, 81 M.S.P.R. 394, ¶ 42 (1999). Therefore, the petitioner
was not required to explain the differences in treatment between the other two
administrative law judges and the respondent, but neither was it precluded from
attempting to do so.
4
We note that in her reply to the petitioner’s response to her petition for review the
respondent has cited to the Board’s decision in Spahn v. Department of Justice,
93 M.S.P.R. 195, ¶ 24 (2003). PFR File, Tab 6 at 14. In Spahn, the Board found that,
where an individual claims unlawful discrimination, she must be allowed to prove that
the settlement agreement offered to other employees, but not offered to her, was a
pretext for discrimination. Although the respondent has asserted that she was working
under an informal accommodation, she acknowledged that she never submitted medical
documentation regarding her condition to anyone at the agency prior to its initiation of
this complaint. IAF, Tab 44, Exs. 33-34. Moreover the administrative law judge did
not adjudicate any claim by the respondent that the petitioner discriminated against her
based on her disability, and she did not, on petition for review, challenge his failure to
do so. Therefore, her reliance on Spahn is inapposite.
10
¶14 Even if there is enough similarity among the comparators, based on the
factors we have addressed, the agency has shown that it had a legitimate reason
for the difference in treatment. See Ellis, 121 M.S.P.R. 570, ¶ 11. When initially
confronted with their leave irregularities, the other two administrative law judges
acknowledged their wrongdoing and made an effort to explain their lapses,
submitted documentary evidence in support, and either took steps to ensure that
there would be no further such lapses or sought a resolution. IAF, Tab 44,
Exs. 20, 27. The respondent did none of these things. We therefore find that the
respondent has not established her claim of disparate treatment as to the penalty
the agency seeks to impose.
¶15 The respondent also argues on review that she showed a potential for
rehabilitation. PFR File, Tab 3 at 31-44. Specifically, she argues that, after the
Deputy Chief Judge confronted her about her absence in January 2012, she
returned to the office on a full-time basis, using leave as needed, and that she
continues to do so. However, the record reflects that the respondent was made
aware in December 2008 of an anonymous Inspector General complaint that was
filed over the time and attendance practices of certain employees in her office of
which she was one, and she was reminded by the then Managing Administrative
Law Judge of the requirement that all employees must work 8 hours per day,
40 hours per week, unless they are on a compressed schedule, which the
respondent was not. IAF, Tab 44, Ex. 5. Subsequently, all office employees
received a memorandum dated May 18, 2011, from the Chief Administrative Law
Judge again reminding them of specific time and attendance requirements which
must be followed. Id., Ex. 6. And, by memorandum of November 28, 2011, the
Associate Chief Administrative Law Judge reminded all employees of the
requirements set out in the May 18, 2011 memorandum and cautioned that:
11
Failure to properly report for work as scheduled, request leave for
time not worked when scheduled, or account for time worked, and/or
claiming compensation for time not worked may result in charges of
absence without leave (AWOL), if appropriate; termination or
suspension of AWS; and/or initiation of appropriate disciplinary or
adverse action, up to and including removal from the Federal service,
against the offender.
Id., Ex. 7. Yet, by the respondent’s own admission, she did not begin to request
leave for her absences until she was confronted by the Deputy Chief
Administrative Law Judge in January 2012. HT at 636. As to the respondent’s
argument that she believed she was working under an accommodation, we have
addressed that issue, deferring to the determination of the administrative law
judge that that claim was not credible.
¶16 The administrative law judge considered the respondent’s evidence of her
rehabilitation efforts, allowing evidence and testimony as to how she began to
comply with the agency’s time and attendance requirements after her
January 2012 meeting with the Deputy Chief Administrative Law Judge. The
administrative law judge found it significant, however, that, despite repeated
warnings, the respondent continued her pattern of unauthorized absences. ID
at 28. To the extent in the initial decision that the administrative law judge did
not specifically address evidence of the respondent’s recent time and attendance
patterns, his failure to have done so does not mean that he did not consider such
evidence in reaching his decision. See Marques v. Department of Health &
Human Services, 22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062 (Fed.
Cir. 1985) (Table). Overall, the record demonstrates that the administrative law
judge admitted and considered the respondent’s evidence of rehabilitation
potential. He was not required to, nor did he, afford it significant weight. Cf.
Hooper v. Department of the Interior, 120 M.S.P.R. 658, ¶¶ 11-14 (2014)
(addressing consideration of evidence of post-removal rehabilitation). On review,
12
we agree with the administrative law judge that the respondent’s evidence of
rehabilitation is not strong and does not warrant significant consideration.
¶17 The mitigating factors we have addressed are outweighed by the
aggravating factors in this case. The respondent holds the position of an
administrative law judge, a position of prominence, whose incumbents usually
engender great respect. See Brennan, 27 M.S.P.R. at 251. The respondent’s
offenses are both serious and repeated. Her superior lost confidence in the
respondent’s ability to comply with agency policy. ID at 26. The respondent was
on notice of the agency’s time and attendance requirements by means of both
general and specific notices. ID at 27. In sum, the respondent has not shown
error in the administrative law judge’s decision finding that good cause exists to
remove the respondent based on the sustained charges. 5
ORDER
¶18 The Board authorizes the petitioner to remove the respondent for good
cause shown pursuant to 5 U.S.C. § 7521. See Social Security Administration v.
Long, 113 M.S.P.R. 190, ¶ 55 (2010), aff’d, 635 F.3d 526 (Fed. Cir. 2011). The
initial decision issued by the administrative law judge is now the Board’s final
decision. 5 C.F.R. § 1201.113(b).
5
The respondent points to the administrative law judge’s statement that, “[a]lthough
removal from the position of an administrative law judge is appropriate, in view of
Respondent’s mitigation evidence including her past Government service without
previous violations and history of productivity, the Agency may consider offering
Respondent a non-supervisory attorney writer position as a matter of clemency.
Offering such a position would provide an opportunity for Respondent to continue in
federal service while subject to supervision of appropriate time and attendance
requirements.” ID at 12; PFR File, Tab 3 at 61-62. However, the administrative law
judge’s statement is dicta, given his finding that good cause exists to remove the
respondent. Because we agree with this finding, we afford the statement no
consideration.
13
NOTICE TO THE RESPONDENT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode/htm.
Additional information is available at the court's website, www.cafc.uscourts.gov.
Of particular relevance is the court's "Guide for Pro Se Petitioners and
Appellants," which is contained within the court's Rules of Practice, and Forms 5,
6, and 11.
If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
14
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.