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Carr v. Social Security Administration

July 30, 1999

ROKKI KNEE CARR, PETITIONER,
v.
SOCIAL SECURITY ADMINISTRATION*FN1, RESPONDENT.



Before Plager, Schall, and Bryson, Circuit Judges.

The opinion of the court was delivered by: Schall, Circuit Judge.

Appealed from: Merit Systems Protection Board

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 . . . ."). *fn2 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 ...


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