Carr v. SS Administation

• Decision Date: 30 July 1999
• Citation: 185 F.3d 1318
• Parties: (Fed. Cir. 1999) ROKKI KNEE CARR, Petitioner, v. SOCIAL SECURITY ADMINISTRATION <A HREF="#fr1-*" name="fn1-*">* , Respondent. 98-3244 DECIDED:
• Court: U.S. Court of Appeals — Federal Circuit

Page 1318

185 F.3d 1318 (Fed. Cir. 1999)

ROKKI KNEE CARR, Petitioner, v. SOCIAL SECURITY ADMINISTRATION^*, Respondent.

98-3244

United States Court of Appeals for the Federal Circuit

DECIDED: July 30, 1999

Appealed from: Merit Systems Protection Board

[Copyrighted Material Omitted]

Robert D. Luskin, Comey, Boyd & Luskin, of Washington, DC, argued for the petitioner.

Lee J. Freedman, Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for the respondent. On the brief were David M. Cohen, Director, Kathryn A. Bleecker, Assistant Director, and Joel McElvain, Attorney.

Before PLAGER, SCHALL, and BRYSON, Circuit Judges.

SCHALL, Circuit Judge.

Rokki Knee Carr petitions for review of the final decision of the Merit Systems Protection Board ("Board") authorizing the Social Security Administration ("SSA" or "agency") to remove her from her position as an administrative law judge ("ALJ"). Social Security Administration v. Carr, 78 M.S.P.R. 313 (1998). We affirm.

BACKGROUND

I.

Ms. Carr began work as an ALJ in 1990 in the SSA's Albuquerque, New Mexico hearing office. In 1991, the agency transferred her to its hearing office in New Haven, Connecticut. Shortly after she began working in New Haven, Ms. Carr discovered conduct that she believed constituted gross mismanagement. She also discovered what she believed were violations of various statutes, rules, and regulations. She disclosed her discoveries to appropriate authorities within SSA. Her disclosures related in part to the staff at the New Haven office.

In the meantime, Ms. Carr was the subject of disciplinary action. On April 22, 1992, she received a letter of counseling for intimidation of, and insensitivity towards, subordinate staff members. Thereafter, on July 19, 1993, she was reprimanded for disruptive behavior and inappropriate conduct. Eventually, after a number of other incidents, SSA decided that Ms. Carr should be removed from her position. Since she was an ALJ, however, this action could not be taken until SSA obtained authorization from the Board. See 5 U.S.C. 7521 (1994) ("An action may be taken against an administrative law judge . . . by the agency in which the administrative law judge is employed only for good cause established and determined by the [Board] on the record after opportunity for hearing before the Board."). Accordingly, on June 20, 1994, SSA filed a complaint with the Board seeking authorization to remove Ms. Carr from her position as an ALJ, based on six charges supported by twenty-eight specifications.

In accordance with regulations then in effect and following a hearing, the presiding administrative law judge, who in this case was the Board's Chief Administrative Law Judge ("CALJ"), issued a recommended decision. See 5 C.F.R. 1201.135(a) (1996) ("[A]n action by an employing agency against an administrative law judge will be heard by an administrative law judge, who will issue a recommended decision . . . .").¹ The CALJ sustained four of the six charges and fifteen of the twenty-eight specifications (sustaining six of the specifications only in part). Based on his findings, he recommended that the Board authorize SSA to remove Ms. Carr from her position. See 5 C.F.R. 1201.136 (1996) (requiring the Board to authorize disciplinary action and the penalty to be imposed after it has made a finding of good cause shown).

The Board adopted the CALJ's recommended decision and authorized SSA to remove Ms. Carr from her position as an ALJ. See Carr, 78 M.S.P.R. at 318. The four charges against Ms. Carr that were sustained by both the CALJ and the Board were (1) reckless disregard for personal safety (one specification sustained in part), (2) persistent use of vulgar and profane language (seven specifications), (3) demeaning comments, sexual harassment and ridicule (three specifications, one of which was in part sustained), and (4) interference with efficient and effective agency operations (one specification). See id. at 330.

This appeal followed. We have jurisdiction pursuant to 28 U.S.C. 1295(a)(9) (1994).

DISCUSSION

The scope of our review of a decision of the Board is limited. We must affirm the decision unless we find it to be "(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence . . . ." 5 U.S.C. 7703(c) (1994); Gibson v. Department of Veterans Affairs, 160 F.3d 722, 725 (Fed. Cir. 1998).

I.

Before the Board, SSA had the burden of establishing the charges against Ms. Carr by a preponderance of the evidence. See 5 U.S.C. 7701(c)(1)(B) (1994); Mattson v. Department of the Treasury, 86 F.3d 211, 214 (Fed. Cir. 1996). On appeal, Ms. Carr does not challenge the findings of the Board that she persistently used vulgar and profane language, that she made demeaning comments and engaged in sexual harassment and ridicule, and that, by her conduct, she interfered with efficient and effective agency operations. Her sole challenge to the sufficiency of the evidence relates to the charge that she acted with reckless disregard for personal safety.

The Board sustained the charge of reckless disregard for personal safety because it found that Ms. Carr knew that Ms. Harris-Gonzales, a hearing office manager, was standing in Ms. Carr's office doorway when Ms. Carr closed the door with force, causing the door to hit and injure Ms. Harris-Gonzales. See Carr, 78 M.S.P.R at 321-23. Ms. Carr contends however, that the finding that she shut her office door knowing that Ms. Harris-Gonzales was standing in the doorway is insufficient, as a matter of law, to support a finding that she acted with reckless disregard for personal safety. The contention is without merit. We have no difficulty agreeing with the Board that when Ms. Carr shut her office door with sufficient force to cause injury, knowing that Ms. Harris-Gonzales was standing in the doorway, she acted with reckless disregard for personal safety. Recognizing that SSA proved by a preponderance of the evidence four of the charges against Ms. Carr, we turn to the remaining arguments that are raised on appeal.

II.

A.

Ms. Carr's main argument on appeal relates to an affirmative defense that she asserted before the Board. In response to the agency's petition to remove her, Ms. Carr raised the affirmative defense that the removal action was being taken against her in retaliation for her whistleblowing activities, in violation of the Whistleblower Protection Act of 1989, Pub. L. No. 101-12, 103 Stat. 16 (codified at various sections of 5 U.S.C.) ("WPA"). The WPA prohibits a personnel action² with respect to an employee because of "any disclosure of information by [such] employee . . . which the employee . . . reasonably believes evidences-- (i) a violation of any law, rule, or regulation, or (ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety . . . ." 5 U.S.C. 2302(b)(8) (1994). Under the statute, after an employee establishes by a preponderance of the evidence, Ellison v. Merit Sys. Protection Bd., 7 F.3d 1031, 1034 (Fed. Cir. 1993), that she made a protected disclosure, that subsequent to the disclosure she was subject to disciplinary action, and that the disclosure was a contributing factor to the personnel action taken against her, the agency must prove by clear and convincing evidence that it would have taken the same personnel action in the absence of the protected disclosure. See 5 U.S.C. 1221(e) (1994); Kewly v. Department of Health and Human Services, 153 F.3d 1357,1364 (Fed. Cir. 1998).

The Board found, and the parties do not dispute, that Ms. Carr made protected disclosures, that she was subject to discipline after making the disclosures, and that the disclosures were a contributing factor in the disciplinary action against her. Therefore, in relation to Ms. Carr's affirmative defense, the only issue that remained before the Board was whether SSA could establish by clear and convincing evidence that it would have sought authority to remove Ms. Carr in the absence of her protected disclosures.

Turning to the pertinent facts, the decision to petition the Board for authority to remove Ms. Carr was made by SSA Associate Commissioner Daniel Skoler. Associate Commissioner Skoler petitioned the Board on behalf of SSA after receiving recommendations to remove Ms. Carr from Judge David Allard, Regional Chief ALJ, and Judge Robert A. Pulcini, Hearing Office Chief ALJ for the New Haven office and Ms. Carr's supervisor. Judge Pulcini received complaints from employees of the New Haven office regarding Ms. Carr, and relayed those complaints to Judge Allard and Associate Commissioner Skoler.

Both Judge Pulcini and the employees of the New Haven Office had motives to retaliate against Ms. Carr. Judge Pulcini, as Hearing Office Chief ALJ, had responsibility for management of the New Haven office. Ms. Carr's protected disclosures related to the management of the office, and constituted criticisms of Judge Pulcini's performance. Indeed, Judge Pulcini eventually was removed from the position of Hearing Office Chief ALJ. Judge Pulcini plainly had a motive to retaliate against Ms. Carr. The employees of the New Haven office also were motivated to retaliate against Ms. Carr, as Ms. Carr's complaints in part related to their conduct.

The Board concluded that SSA had established by clear and convincing evidence that it would have petitioned for authority to remove Ms. Carr even in the absence of her protected disclosures. The Board determined that "[Judge] Pulcini's influence over the decisionmaker, [Associate Commissioner] Skoler, was limited and thus . . . the motive to retaliate . . . did not weigh heavily in favor of finding reprisal." Carr, 78 M.S.P.R. at 336. First, in his recommended...