                           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                THIS FINAL ORDER IS NONPRECEDENTIAL 1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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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.
