UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD ADMINISTRATIVE LAW JUDGE

Transcription

1 UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD ADMINISTRATIVE LAW JUDGE SOCIAL SECURITY ADMINISTRATION, Petitioner, DOCKET NUMBER CB T-1 CHARLOTTE N. WHITE, Respondent. DATE: February 7, 2012 BEFORE D. Michael Chappell Administrative Law Judge INITIAL DECISION Petitioner Social Security Administration ("SSA" or the "Agency"), pursuant to 5 U.S.C. 7521, seeks to suspend Respondent, Administrative Law Judge ("ALJ") Charlotte N. White ("Respondent"), for 45 days without pay based upon two charges, discussed in more detail below. The Merit Systems Protection Board ("MSPB" or "Board") has jurisdiction over this matter pursuant to 5 U.S.C ' A hearing was held on the charges from August 24, 2011 to August 26, 2011 in New Orleans, Louisiana. For the reasons set forth below, the Agency has established good cause to suspend Respondent for a period of 45 days without pay. ' Pursuant to 5 U.S.C. 7521, an agency may suspend an Administrative Law Judge "only for good cause established and determined by the Merit Systems Protection Board on the record after opportunity for hearing before the Board."

2 I. STATEMENT OF THE CASE On January 25, 2011, the Agency filed a Statement of Charges and Specifications against Respondent, containing two charges. (Tab 1^). Count I charges Respondent with Conduct Unbecoming an Administrative Law Judge and is supported by four specifications. Count II charges Respondent with Failure to Follow the Agency's Flexiplace Procedures and is also supported by four specifications. The Agency requests that the Board find that "there is good cause to suspend Respondent, Charlotte N. White, from her position as an ALJ for 45 days." (Tab 1 at 15). The Statement of Charges was signed by Paul C. Lillios, Associate Chief Administrative Law Judge ("ACALJ"), Office of Disability Adjudication and Review, SSA. (Tab 1 at 15). The Board's Acknowledgement Order, dated January 27, 2011, delegated adjudication of this matter to the undersigned Administrative Law Judge. (Tab 2). Pursuant to the Acknowledgement Order, Respondent filed an Answer to the Statement of Charges on March 18, (Tab 8). Respondent denied engaging in the conduct specified, asserted that she behaved properly in all material respects, and further contended that the charges reflected improper. retaliation against her. A Scheduling Order was issued on March 23, 2011, which provided deadlines for completing discovery and exchanging witness and exhibit lists and set a hearing date of July 26, (Tab 9). On June 3, 2011, in order to allow sufficient time to resolve pending discovery disputes, an Order amending the ^ The "Tab" references herein refer to the location of the document in the case file, and reflect the order in which filings were docketed with the MSPB.

3 scheduling order and resetting the hearing date for August 24, 2011 was issued. (Tab 25). The hearing began on August 24, At the hearing, testimony was received from 10 witnesses, including Respondent; Hearing Office Chief Administrative Law ("HOCALJ") Judge Glynn Voisin; Regional Chief Administrative Law Judge ("RCALJ") Joan Parks Saunders; ACALJ Paul Lillios; ALJ Donald Willy; ALJ Michael Cheek; ALJ Harold Chambers; Ms. Sherae Hunter, Office of Senator Mary L. Landrieu; Mr. Wes Kungel, Office of Senator Mary L. Landrieu; and Ms. K.T. Traina, Group Supervisor, SSA. In addition, the record includes 68 documentary exhibits, agreed to by both parties and offered and admitted into evidence as Joint Exhibits, and 23 documentary exhibits offered by Respondent and admitted into evidence. The parties also submitted joint stipulations of certain facts. (JX 69). The hearing concluded on August 26, Thereafter, on September 30, 2011, the parties were directed to file posthearing proposed findings of fact and conclusions of law, legal memoranda in support thereof ("Post-Hearing Briefs"), and replies to the opposing party's Post- Hearing Briefs ("Reply Briefs"). (Tab 49). Pursuant to MSPB Practices and Procedures Rule , 5 C.F.R (hereafter "Rule "), the record in this matter remained open for the limited purpose of receiving the parties' Post- Hearing Briefs and Reply Briefs. The parties were originally directed to file their Post-Hearing Briefs on December 5, 2011, and their Reply Briefs on January 5, (Tab 49). However, the parties filed a Joint Motion to Extend the Deadline for Filing Briefs (Tab 50), which was granted by Order extending the deadline for filing Post- Hearing Briefs to December 15,, 2011 and Reply Briefs to January 17, (Tab 52). Subsequent to the filing of the parties' Post-Hearing Briefs, Petitioner SSA filed an unopposed motion seeking to further extend the deadline for filing Reply

4 Briefs to January 23, 2012, which was granted. (Tabs 55-56). All Post-Hearing Briefs and Reply Briefs have been filed and considered. IL EVIDENCE Pursuant to Rule (b)(1), and in order to provide an adequate basis for appellate review, each initial decision must contain findings of fact and conclusions of law on all material issues presented and the reasons or bases for those findings and conclusions. 5 C.F.R (b)(1), (2); Parker v. Defense Logistics Agency, 1 M.S.P.B 489, 518 (1980). See Spithaler v. Office of Pers. Mgmt., 2 M.S.P.B. 2 (1980) (holding that Rule requires that an inifial decision must, inter alia, resolve all material issues of fact and disclose the evidentiary basis for factual findings, and resolve all material legal issues in a fashion that reveals the presiding official's conclusions of law, legal reasoning, and the authorities on which that reasoning rests). In accordance with the foregoing authorities, this Initial Decision contains findings on all material issues of fact and identifies the evidentiary basis for those findings. Citations to specific numbered findings of fact in this Initial Decision are designated by "F." In addition, this Initial Decision contains conclusions of law on all material legal issues, and identifies the legal reasoning and authorities supporting those conclusions. The requirements for initial decisions set forth in Rule (b) are virtually identical to those in Section 557(c)(A) ofthe Administrative Procedure Act ("APA"), 5 U.S.C. 557(c)(A). The Supreme Court has held that the APA does not require that an initial decision "make subordinate findings on every r collateral contention advanced, but only lipon those issues of fact, law, or discretion which are material." Minneapolis & St. Louis Ry. Co. v. United States, 361 U.S. 173, (1959). See also Borek Motor Sales, Inc. v. National Labor Relations Bd, 425 F.2d 677, 681 (7th Cir. 1970) (holding that it is adequate for the

5 Board to indicate that it had considered each of the company's exceptions, even if only some ofthe exceptions were discussed, and stating that "[mjore than that is not demanded by the [APA] and would place a severe burden upon the agency"). Accordingly, proposed findings of fact that are not included in this Initial Decision were rejected, either because they were not supported by the evidence, or because they were not dispositive or material either to the determination of the charges or penalty at issue, or to Respondent's defenses. Similarly, legal contentions and arguments not addressed in this Initial Decision were rejected, because they lacked support in fact or law, were not material, or were otherwise lacking in merit. All contentions and arguments in the parties' Post-Hearing Briefs and Reply Briefs were reviewed and considered.'^ III. BURDEN OF PROOF To be sustained, the charges brought against Respondent must be supported by a preponderance ofthe evidence. 5 C.F.R (a)(l)(ii); Carr v. Social Security Administration, 185 F.3d 1318, 1321 (Fed. Cir. 1999); Brennan v. Dep't of Health & Human Services, 787 F.2d 1559, 1561 (Fed. Cir. 1986); see also 5 U.S.C. 701(c)(1)(B) (providing that, in appeals to the Board, the decision of the agency may be sustained only if supported by a preponderance of the evidence). "A preponderance of the evidence is specifically defined in 5 C.F.R (c)(2) as 'that degree of relevant evidence which a reasonable mind, considering the record as a whole, might accept as sufficient to support a conclusion that the matter asserted is more likely to be true than not true.'" Brennan, 787 F.2d at Moreover, "[t]he burden of proving the charge by a preponderance of the evidence is and remains throughout the proceeding upon the ^ References to the Agency's Post-Hearing Brief and Reply Brief will be cited as "Agency Brief and "Agency Reply Brief," respectively. Similarly, citations to the Post-Hearing Brief and Reply Brief of Respondent will refer, respectively, to "Respondent's Brief and "Respondent's Reply Brief."

6 agency. However, 'once an agency has made a prima facie showing, the burden of going forward with evidence to rebut that showing necessarily shifts to the employee... Absent effective rebuttal, the agency must be held to have carried its burden of persuasion.'" Id. at 1563 (quoting Schapansky v. Dep't of Transportation, 735 F.2d 477, (Fed. Cir. 1984)). Respondent bears the burden of proving any affirmative defenses by a preponderance ofthe evidence. 5 C.F.R (a)(2)(iii). IV. FINDINGS OF FACT A. Background Facts 1. Charlotte N. White (hereinafter "Respondenf) is employed as an Administrative Law Judge ("ALJ") with the Social Security Administration's Office of Disability Adjudication and Review ("ODAR"). (White, Tr. 158). 2. Respondent has been employed as a Social Security Administration ("SSA") ALJ for 21 years and is currently assigned to the New Orleans, Louisiana Hearing Office. (White, Tr. 159). 3. As an ALJ, Respondent is responsible for holding hearings and issuing decisions, among other associated duties, in accordance with the Social Security Act and its implementing regulations. (JX 1). 4. Each SSA hearing office has a Hearing Office Chief ALJ ("HOCALJ"), who is responsible for the overall operation ofthe hearing office and is the first line supervisor of ALJs assigned to that hearing office. (Voisin, Tr. 549; JX 2). 5. The HOCALJ for the New Orleans, Louisiana Hearing Office, at all times relevant in this matter, was Judge Glynn Voisin. (Voisin, Tr. 545). 6. A Regional Chief Administrative Law Judge ("RCALJ") is. responsible for all program and administrative matters concerning SSA's hearings process in a particular region. The RCALJ is the second-line supervisor for all ALJs in a particular region. (Parks Saunders, Tr ; JX 3). Judge Joan Parks Saunders is the RCALJ for the Dallas Region, which

7 encompasses the New Orleans Hearing Office. (Parks Saunders, Tr ). 7. The authority to propose suspension or removal of an ALJ is vested in the Associate Chief Administrative Law Judge ("ACALJ"). Judge Paul Lillios is the ACALJ and signed the Statement of Charges in this case. (Lillios, Tr. 944, 946; Parks Saunders, Tr. 754, 854). B. CHARGE I, Specifications 1 and 2: Conduct unbecoming an Administrative Law Judge in connection with Respondent's conduct at the office of Senator Mary L. Landrieu on April 20, 2009 Specification 1: On or about April 20, 2009, Respondent engaged in conduct unbecoming an ALJ by improperly reviewing personally identifiable information in the file of a constituent of United States Senator Mary L. Landrieu. Specification 2: On or about April 20, 2009, Respondent engaged in conduct unbecoming an ALJ by yelling at and being argumentative with representatives in the office of United States Senator Mary L. Landrieu. 8. On April 20, 2009, Respondent visited the New Orleans, Louisiana Office of United States Senator Mary L. Landrieu. (White, Tr. 197; Hunter, Tr. 412). The office is located at 500 Poydras St., Suite 1010;New Orleans, Louisiana. (JX 60). 9. Respondent intended to deliver to Senator Landrieu's office a document, entitled "Privacy Act Release Form for U.S. Senator Mary L. Landrieu" executed by Dr. Dudley Stewart ("Privacy Release Form"). (White, Tr. 197, , ; JX 60). Respondent identified Dr. Stewart as a "long time friend," who was then ill. (JX 27 at 2). 10. Respondent was provided the completed Privacy Release Form by Darlene Jacobs, an attorney who Respondent described as a "good friend" who had asked Respondent if she would "want to drop them by." (White, Tr. 197, 204). 11. The section of the Privacy Release Form entitled "Brief Description of the Problem" recited Dr. Stewart's wish to obtain Medicare coverage for a bone marrow transplant which, he had been advised, was not covered for

8 his condition, but which Dr. Stewart believed Medicare would begin to cover "in the next year or so." (JX 60). 12. The Privacy Release Form instructed that the completed form should be returned to Senator Landrieu's New Orleans office, and provided the address and the fax number. (JX 60). 13. Respondent acknowledged that she could have faxed the Privacy Release Form to Senator Landrieu's office, rather than take the time to drive from her home to Senator Laudrieu's office. Respondent nevertheless decided to deliver the document personally, in an effort to get the matter personal attention. (White, Tr ; White, Tr. 204 ("[W]hen you give it to any person, you know you had somebody's attention."). 14. Respondent denied that she also took time on April 20, 2009 to first drive to Attorney Jacobs' office to pick up the completed Privacy Release Form, but Respondent could not explain how she received the form from Ms. Jacobs. (White, Tr , , 211). 15. When Respondent was greeted at Senator Landrieu's office, she introduced herself as "Judge White." (White, Tr ). 16. Respondent had a discussion with Ms. Sherae Hunter, a constituent services representative in the office of Senator Mary Landrieu, conceming a Medicare coverage issue of Dr. Stewart. Respondent asked if the Senator could contact Medicare to see if they would pay for a bone marrow transplant for Dr. Stewart. Respondent wanted the procedure covered. Respondent and Ms. Hunter were "going back and forth" about the issue. (White, Tr. 216; Kungel, Tr ). 17. In response to Ms. Hunter asserting that it would be "unethical" to do what Respondent was asking the office to do. Respondent raised her voice and yelled "No, it's not." (Hunter, Tr , 451, 453). 18. Ms. Hunter believed that Respondent was there on behalf of a friend. She did not believe that Respondent was visiting on official SSA business. (Hunter, Tr. 472). 19. After discussing the matter with Ms. Hunter, Respondent stepped out of Ms. Hunter's office and went to the office of Mr. Wes Kungel, regional representative in the office of Senator Mary Landrieu, and asked Mr. Kungel if she could use his cell phone. Respondent appeared "heated" to Mr. Kungel and it was obvious to him that Respondent was displeased with 8

9 Ms. Hunter's response. Mr. Kungel did not believe it was appropriate to provide his cell phone to Respondent and instead offered that Respondent use an office telephone located on an empty desk outside Mr. Kungel's office. (White, Tr. 216; Hunter, Tr. 423; Kungel, Tr ; JX 7 at I). 20. While Respondent was using the telephone at the front desk, in the lobby/entry area of the office, she opened a file folder that had been on the desk in a holder, removed the papers inside, and reviewed the contents. The contents of the file included several names and social security numbers, including Ms. Jacobs'. (White, Tr ; Kungel, Tr ; JX 7 at 1). 21. In general, the files in Senator Landrieu's New Orleans office are maintained in legal-size, gold-colored envelopes, with the name of the constituent and the type of matter written on the back of the envelope. (Hunter, Tr ). 22. Ms. Hunter and Mr. Kungel both witnessed Respondent looking through a constituent's file. In Mr. Kungel's five years of working in Senator Landrieu's office, he had never seen anyone from outside the office look through a private file. Respondent appeared unconcerned about doing so and disagreed with the staffs assertion that Respondent's conduct in looking through the file was inappropriate. (Hunter Tr ; Kungel Tr ; 512). 23. Respondent stated that she did not want to work with Ms. Hunter any longer and wanted to work with Mr. Kungel instead. Respondent "got right up in [Mr. Kungel's] face," was very angry, and was expressing frustration. Respondent's tone, demeanor, and posture became aggressive and "incredibly confrontational." (Kungel, Tr , ; JX 7 at 1-2). 24. Mr. Kungel advised Respondent that if it turns out that, under current law, the agency cannot fund what Respondent felt needed to be funded, then Respondent could submit a request in writing for legislation to allow the funding. Respondent seemed to appreciate hearing that option, but she "definitely wasn't happy" with how things transpired at Senator Landrieu's office that day. (Kungel, Tr ; JX 7 at 1). 25. It was clear to Mr. Kungel that Respondent wanted Ms. Hunter to say yes, that the procedure would be covered or that the Senator would make sure that it was covered, and that Respondent was completely displeased with Ms. Hunter's response. (Kungel, Tr. 512).

10 26. Respondent did not touch Mr. Kungel and he did not feel physically threatened. (Kungel, Tr ). 27. Mr. Kungel considered calling the U.S. Marshalls to diffuse the situation because the situation was not getting any better and "there was more and more yelling." (Kungel, Tr. 525; JX 7 at 1-2). 28. Respondent was asked by the staff to leave Senator Landrieu's office. (Kungel, Tr ). 29. Contacts with constituents can often become heated. As Mr. Kungel stated: "Most people aren't inspired to contact their elected representatives unless they're angry." (Kungel, Tr , 534). 30. Mr. Kungel has dealt with constituents angrier than Respondent. (Kungel, Tr. 515). 31. Mr. Kungel did not realize at the tinie of Respondent's visit that Respondent was an Administrative Law Judge, but when he subsequently learned this fact, he believed that Respondent's behavior was "far from professional." (JX 7 at 1-2; Kungel, Tr. 526). 32. After Respondent left, Mr. Kungel believed that that was "the end of it." Mr. Kungel did not speak to a supervisor that day about Respondent's visit. (Kungel, Tr ). 33. Soon after Respondent left Senator Laundrieu's office, Ms. Hunter contacted her supervisor to let her know what had happened. Ms. Hunter thereafter contacted SSA, and was subsequently instructed to put her complaint in writing. (Hunter, Tn , ). 34. It is policy of the ODAR that complaints about any employee are to be submitted in writing. (Parks Saunders, Tr ). 35. Ms. Hunter submitted a written complaint to RCALJ Parks Saunders by letter dated April 21, 2009 ("Ms. Hunter's Complaint"). (JX 5). The letter set forth Ms. Hunter's version of the events of April 20, The letter also included an allegation that Dr. Stewart "sometimes testifies for Ms. White in social security cases." (JX 5 at P5/3). 36. On or about June 15, 2010, Respondent filed a state court acfion against Sherae Hunter for defamation, in connection with the assertions in Ms. Hunter's Complaint against Respondent. The matter was removed from 10

11 state court to federal court, and ultimately dismissed for lack of jurisdiction. (White, Tr. 245, RX 34 at P , P521). C. Investigation into Respondent's April 20, 2009 Visit to the Office of Senator Mary L. Landrieu 37. RCALJ Parks Saunders forwarded a copy of Ms. Hunter's Complaint to HOCALJ Voisin and advised him to conduct a Weingarten meeting. (Parks Saunders, Tr. 744). 38. HOCALJ Voisin, at the request of RCALJ Parks Saunders, arranged a Weingarten meeting with Respondent, which was scheduled for June 24, 2009, and provided Respondent with a copy of Ms. Hunter's Complaint. (Voisin, Tr. 562, 567; JX 9-16). 39. HOCALJ Voisin had never conducted a Weingarten meeting previously, and obtained assistance from Regional Legal Counsel, Timothy Stewart, including the formulation of questions. HOCALJ Voisin is unaware of any written policy for HOCALJs regarding what is required in conducting a Weingarten meeting. (Voisin, Tr ). 40. Respondent submitted a response to Ms. Hunter's Complaint to Senator Landrieu and to RCALJ Joan Parks Saunders on or about June 22, Among other things. Respondent denied introducing herself as an ALJ, denied making the statements attributed to her in Ms. Hunter's Complaint, and admitted only to "moving" some files "absentmindedly." (JX 27). 41. Respondent, and her union representative, attended the June 24, 2009 Weingarten meeting and answered HOCALJ Voisin's questions. (White, Tr ; Voisin, Tr. 568; Willy, Tr ). 42. After the June 24, 2009 Weingarten meefing, HOCALJ Voisin prepared a memorandum of the meeting and sent it to RCALJ Parks Saunders. The memorandum recited that Respondent stated that she was calm during her visit to Senator Landrieu's office and that Ms. Hunter was disrespectful and rude. According to the memo, Respondent admitted "flipping through a * The term "Weingarten meeting" refers to the case of NLRB v. Weingarten, 420 U.S. 251 (1975), in which it was held, inter alia, that "under the National Labor Relations Act an employee has a right to union representation during an investigatory interview when the employee reasonably believes that discipline may result... Congress [thereafter] granted Federal employees Weingarten type rights in the Civil Service Reform Act,... 5 U.S.C. 7114(a)(2)(B)." Lim v. Dep 7 ofagric, 10 M.S.P.R. 129, 130 (1982). 11

12 brown folder containing some papers," while at the Senator's office, "absentminded[ly]." (JX 17; Voisin, Tr. 569). 43. HOCALJ Voisin's memorandum ofthe June 24, 2009 Weingarten meeting, referred to in F. 42, was attached to an from HOCALJ Voisin to RCALJ Parks Saunders. The expressed HOCALJ Voisin's disbelief of Respondent's version of the events, noting that "[ujnfortunately, both you and I know that she is quite capable of what these innocent staffers accuse her of doing." HOCALJ Voisin concluded: "I think that this matter. should be investigated further by region, OCALJ [(Office of the Chief Administrative Law Judge)] and/or OGC [(Office of General Counsel)]. And, if the facts reveal what they appear to reveal Judge White should be terminated; retire in lieu of termination; or be terminated, but that the termination be suspended and that she be placed on probation for 5 years" subject to a number of terms including, "send letter of apology to Senator Landrieu and her staff, no work at home, no flextime,... [and] have all fmdings reported to the Louisiana and Federal bar associations." (RX 24). 44. RCALJ Parks Saunders sought clarifying information following receipt of Respondent's statement and Judge Voisin's report. RCALJ Parks Saunders was concerned that Respondent's recollection of the events at Senator Landrieu's office and the events recited in Ms. Hunter's letter were "totally opposite." (JX 17, 27; Parks Saunders, Tr ). 45. On August 17, 2009, RCALJ Parks Saunders sent a letter to Mr. Kungel requesting his written account of what transpired during Respondent's visit to Senator Landrieu's office. Mr. Kungel sent the requested letter on or about October 5,2009. (JX6, 7). 46. After reviewing Mr. Kungel's letter, RCALJ Parks Saunders believed that Ms. Hunter's recollection of events, as set forth in her letter of complaint, was probably closer to what had actually transpired on April 20, (Parks Saunders, Tr. 754). 47. RCALJ Parks Saunders investigated the allegation in Ms. Hunter's Complaint that Dr. Stewart had been a witness in hearings before Respondent. Based on that investigation, and the fact that Respondent denied that allegation, RCALJ Parks Saunders was satisfied that Dr. Stewart had not, in fact, testified before Respondent. (Parks Saunders, Tr. 744). 12

13 D. Investigation into Respondent's Use of Flexiplace 48. During the course of the Agency's investigation of the complaint filed by Senator Landrieu's office, RCALJ Park Saunders reviewed Respondent's fime and attendance record for April 20, (Parks Saunders, Tr ). 49. RCALJ Parks Saunders requested and received from Respondent's hearing office time and attendance records related to the week of April 20, (Parks Saunders, Tr. 755). 50. RCALJ Parks Saunders would not have requested Respondent's time and attendance records, had it not been for the investigation into Respondent's conduct in Senator Landrieu's office. (Parks Saunders, Tr ). 51. RCALJ Parks Saunders reviewed Respondent's time and attendance records related to the week of April 20, 2009, and noticed that Respondent signed out cases to work on at home that were not in a status that would allow an ALJ to work on at home. See F. 91 (defining statuses of cases). Consequently, RCALJ Parks Saunders requested additional time and attendance records for Respondent, including approximately six months' of "Flexiplace"^ documents. RCALJ Parks Saunders found several more instances of cases signed out by Respondent for work-at-home that RCALJ Parks Saunders believed were in "questionable" statuses for work-at-home. (Parks Saunders, Tr , 764, 771). 52. Based on what RCALJ Parks Saunders believed to be questionable statuses, and what she believed to be a low number of cases being signed out by Respondent for work-at-home, in relation to a required eight hour work day, RCALJ Parks Saunders directed HOCALJ Voisin to schedule a Weingarten meeting with Respondent conceming her Flexiplace work performed on the dates in quesfion. Those dates, all in 2009, were: Febmary 6, March 23, April 10, April 13, April 17, April 20, April 24, April 27, May 1, June 29, July 24, July 27, and July 31. (Parks Saunders, Tr ; JX 30). 53. Through an dated October 14, 2009, Regional Counsel Timothy Stewart, who works with RCALJ Parks Saunders, advised HOCALJ Voisin, among other things, that Respondent should be given a copy of her ^ "Flexiplace" is an SSA term that equates to telework, (Parks Saunders Tr. 778), and is described more fully in F

14 Flexiplace logs and the related Case Processing and Management System ("CRMS"; see F. 90) status and history data at the Weingarten meeting. HOCALJ Voisin was further instructed to ask the questions provided with the , and to give Respondent an opportunity to respond. The October 14, further advised that if Respondent asks to present a supplemental statement or additional information after the meeting, such statement and/or information should be accepted. (JX 58; Voisin, Tr ; Willy, Tr ). E. CHARGE I, Specifications 3 and 4: Conduct unbecoming an Administrative Law Judge in connection with Respondent's conduct at the January 25, 2010 Weingarten meeting Specification 3: On or about January 25, 2010, Respondent engaged in conduct unbecoming an ALJ by refusing to cooperate with an investigation. Specification 4: On or about January 25, 2010, Respondent engaged in conduct unbecoming an ALJ by failing to participate meaningfully in a scheduled meeting. 54. On or about October 27, 2009, Respondent received an from HOCALJ Voisin scheduling a meeting for Thursday, October 29, 2009 at 2:00 p.m. "with regard to your Flexiplace work performed on" the dates set forth in F. 52. The further advised Respondent, consistent with Mr. Timothy Stewart's referred to in F. 53, to "feel free to bring any materials" regarding her Flexiplace work on the relevant dates and that she had a right to representation. (JX 30; White, Tr. 269; Voisin, Tr..583, 587; see also JX 42 (October 14, from ALJ Don Willy to Respondent regarding questions about Respondent's use of Flexiplace on the date Respondent visited Senator Landrieu's office)). 55. At the time HOCALJ Voisin sent Respondent the of October 27, 2009, referred to in F. 54, he was in possession of a packet of information regarding the Flexiplace dates in question, including all the pertinent CPMS data. (Voisin, Tr. 583). 56. Union representative ALJ Don Willy sent HOCALJ Voisin an on October 27, 2009, with a copy to Respondent and RCALJ Parks Saunders, advising that neither he nor Respondent was available to attend a meeting on October 29, 2009 because they each had hearings. In addition, ALJ Willy wrote, "we don't have enough information to respond to you. For example Judge White does not have the Flexiplace logs for the various 14

15 dates" and it was not possible for Respondent to provide a response within the two day period before the scheduled meeting. ALJ Willy asked that HOCALJ Voisin provide Respondent with the Flexiplace logs conceming any date in question and to facilitate Respondent's access to filesand other data so that she could respond appropriately. HOCALJ Voisin agreed to reschedule the meeting until the week of November 16, (JX 19, 32). 57. ALJ Willy advised Respondent to get the information from the Flexiplace dates in question and to look at the specific cases and see what she did, to prepare for the Weingarten meeting. (Willy, Tr. 707). 58. On October 28, 2009, Respondent sent an to HOCALJ Voisin, with a copy to ALJ Willy and RCALJ Parks Saunders, and others, advising that she could not meet with HOCALJ Voisin on October 29, 2009 because of a conflict. Respondent further stated that she needed to contact her union to discuss the matter more fully and arrange to have a representative present. Respondent stated her desire to cooperate and promised to contact HOCALJ Voisin again to reschedule, once she received an available date from the union. Shortly'thereafter, ALJ Willy replied to Respondent, inquiring whether Respondent had received ALJ Willy's s on the matter or the reply of Judge Voisin. (JX 62). 59. ALJ Willy and HOCALJ Voisin exchanged a number of s over the next several weeks regarding rescheduling the Weingarten meeting, including rescheduling for the purpose of accommodating Respondent's asserted need to address a medical issue. (JX 19, 20, 21, 32; Voisin, Tr. 621; Willy, Tr. 681,695). 60. On November 6, 2009, ALJ Willy requested again that HOCALJ Voisin. provide Respondent with the relevant Flexiplace sheets, as well as assistance in accessing the computer data regarding the cases at issue, noting that unless Respondent is adequately prepared, her responses at a Weingarten meeting would be "virtually worthless." Judge Willy also stated that faimess required that Respondent be able to review the relevant cases. (JX63; Willy, Tr ). 61. Respondent was attempting to obtain an attomey, and advised Judge Willy that she did not want him to represent her at the Weingarten meeting. (Willy, Tr. 681). 62. On or after January 7, 2010, HOCALJ Voisin sent ALJ Willy an rescheduling the Weingarten meeting for January 25, 2010 at 2:00 p.m. HOCALJ Voisin did not send an to Respondent about the date 15

16 because he had been previously communicating with ALJ Willy as Respondent's representative. Judge Voisin did not give oral notice of the Weingarten meeting. (Voisin, Tr , 610). 63 There is no specific rule regarding the method of notice for Weingarten meetings. The general practice in Region 6 (Dallas Region) is to give written notice, including via . It is also normal procedure to provide oral nofice. (Willy, Tr. 690; Parks Saunders, Tr ). 64. ALJ Willy had advised HOCALJ Voisin that he was not attending the Weingarten meeting as Respondent's representative, and that Respondent was looking for an attomey to represent her. (Willy, Tr , ). 65. On January 25, 2010 at 2:00 p.m., HOCALJ Voisin arrived at a tenth floor conference room for the Weingarten meeting. ALJ Willy was present via videoconference. (Voisin, Tr. 588, Willy, Tr. 685). 66. ALJ Willy attended the meeting as a union representative, enforcing the union contract, and not as Respondent's personal representative. (Willy, Tr.681). 67. The ALJ union contract is unclear as to whether or not there is a right to be represented by an attorney at a Weingarten meeting. (Willy, Tr. 684). 68. Respondent did not appear at 2:00 p.m. for the Weingarten meeting on January 25, After waiting approximately 15 minutes, HOCALJ Voisin went to Respondent's office and found her meeting with two attomeys. (Voisin, Tr. 588; Willy, Tr. 685). 69. HOCALJ Voisin asked Respondent if she was going to participate in the Weingarten meeting. Respondent indicated that she was not aware that they had a meeting that day. (White, Tr , ; Voisin, Tr. 588). 70. Respondent had experienced some technical problems preventing her from receiving for a period of time prior to the January 25, 2010 Weingarten meeting, but these problems were temporary and had been resolved by the date of the meeting. (White, Tr. 264; (JX 67 (Transcripfion, Tr. 326); Voisin, Tr ; JX 53 at 1). 71. Respondent did not receive notice from Judge Willy that the Weingarten meeting was scheduled for January 25, Judge Willy had attempted to Respondent but did not get a response. He also tried to telephone 16

17 Respondent, but her telephone voic box was full. (Willy, Tr ). 72..After being advised by HOCALJ Voisin that she was expected at a meeting. Respondent appeared at the January 25, 2010 Weingarten meeting. Upon arriving. Respondent stated that she wanted an attomey present. Respondent also stated that she had not received notice of the meeting. (White, Tr , 266; Voisin, Tr ). 73. Upon arriving at the Weingarten meeting on January 25, 2010, Respondent conferred briefly with Judge Willy, out of Judge Voisin's presence. (White, Tr. 266; Voisin, Tr ; JX 53 at 1). 74. Respondent was provided the Flexiplace logs and the related CPMS data for the days listed in F. 52 at the January 25, 2010 Weingarten meeting, but had not been given them before that time. (JX 58; JX 53; White, Tr ). 75. Respondent was unwilling to proceed with the January 25, 2010 Weingarten meeting without an attorney. Judge Voisin was unwilling to postpone the Weingarten meeting further. (White, Tr. 264, , 274; Willy, Tr. 685, 689, 691; Voisin, Tr. 589). 76. If Respondent had requested more time for her and ALJ Willy to look at the documents presented at the Weingarten meeting, and to confer with ALJ Willy, HOCALJ Voisin would have allowed Respondent to do so. (Voisin, Tr. 594). 77. During the meeting. Respondent got up from her seat. Respondent walked toward the computer equipment at the head of the room, picked up a microphone, and spoke directly into it. HOCALJ Voisin advised Respondent that the meeting was not being recorded. Respondent walked to where Judge Voisin was sitting, leaned her head over, and asked Judge Voisin if he was recording the meeting. Judge Voisin repeated that he was not tape recording the meeting. Later in the meeting. Respondent asked a second time if the meeting was being recorded. (White Tr , ; Voisin, Tr ; JX 53 at 2). 78. HOCALJ Voisin was frustrated with Respondent at the meeting. (Voisin, Tr. 594). 79. Weingarten meetings are not generally recorded. (Willy, Tr ). 17

18 80. During the meeting. Respondent was insistent on her desire for representation by an attomey, and asked if she could contact her attorney. HOCALJ Voisin asserted that Judge Willy was there to represent her. Ultimately, Judge Voisin allowed Respondent to leave the room to call an attomey. (White, Tr , 292; Voisin, Tr ; JX 53 at 1). 81. Respondent retumed to the Weingarten meeting with a tape recorder in her pants pocket. Respondent did not disclose to the meeting participants that she was recording the meeting. JX 67 is a complete recording of the portion of the meeting recorded by Respondent. (JX 67; White, Tr , ; Voisin, Tr , ). 82., Upon Respondent's return to the Weingarten meeting room, with the tape recorder running. Respondent advised that her attomey was not available to represent her at that time. HOCALJ Voisin asserted that Respondent had had adequate notice and an opportunity to respond and had been unresponsive. Respondent indicated to HOCALJ Voisin that HOCALJ Voisin was denying Respondent her "constitutional rights." HOCALJ Voisin proceeded to declare the meeting over. ALJ Willy stated, when asked by Respondent, that HOCALJ Voisin had not yet asked any quesfions. (JX 67 (Transcripfion, Tr ); White, Tr. 315; Voisin, Tr. 589; see also JX 53 at 1). 83. Expressly to avoid the appearance of unfaimess, HOCALJ Voisin advised he would give Respondent "another chance" to answer questions. Respondent again stated that she had not received notice that the Weingarten meeting was taking place that day. At this point. Judge Willy reminded the parties that the purpose of the Weingarten meeting is for HOCALJ Voisin to ask quesfions, and for Respondent to answer them, or say she does not know, and that if Respondent cannot answer a question, she should do so in the future, and that she may want to consult her attomey. (JX 67 (Transcripfion, Tr ); White, Tr. 315; Willy, Tr. 685,691). 84. HOCALJ Voisin asked Respondent one question at the Weingarten meeting; specifically, "how many cases did you sign out on February 6, 2009." (Voisin, Tr ; JX 67 (Transcripfion, Tr. 317)). 85. Respondent wrote down the question set forth in F. 84. Using a mocking tone. Respondent repeated the question slowly, stated that she did not know the answer because she had not looked at the papers presented at the January 25, 2010 Weingarten meeting, and stated that she would have to look at the papers and get back to HOCALJ Voisin. HOCALJ Voisin, in an 18

19 abmpt tone, again stated that Respondent was being unresponsive and ended the meeting. (JX 67 (Transcription, Tr , ); Voisin, Tr ; see also JX 53 at 2). 86. At the point that HOCALJ Voisin ended the meeting, the meeting had lasted approximately one and one-half hours. (JX 67 (Transcription, Tr. 318)). 87. When Respondent returned to her office from the Weingarten meeting, it was 4:47 p.m. (JX 67; White, Tr ). 88. HOCALJ Voisin gave Respondent the Flexiplace logs and related data presented at the meeting, and agreed to allow Respondent an opportunity to respond to the question asked at the January 25, 2010 Weingarten meeting, in writing by February 17, Respondent submitted her response, dated Febmary 17, 2010, stating that after review ofthe documents provided by HOCALJ Voisin, she took home five cases for review on February 6, (JX 67 (Transcripfion, Tr ); White, Tr ; Voisin, Tr. 591; JX 33). F. CHARGE II: Failure to Follow the Agency's Flexiplace Procedures 1. Background facts 89. One of the HOCALJ's duties is to oversee the timely management of cases in a hearing office ("HO"). (JX2). 90. The Office of Disability Adjudication and Review ("ODAR") uses a tracking system, known as the Case Processing and Management System ("CPMS"), to track the progress of hearing requests from receipt of a case to closure of that case by use of computer-stored data. (Parks Saunders, Tr. 720; Voisin, Tr. 556). 91. CPMS utilizes various codes to track a case's status in the hearing process. The following is a list of codes that are relevant to this case: MDKT- The HO receives a case, and processes it in Master Docket status ("MDKT"). UNWK- Indicates that a claim was entered into the HO's master docket but the claim is "inactive" awaiting processing. 19

20 ARPR- Once the case is prepared for an ALJ's review, it is assigned to a specific ALJ, and is placed in "ALJ prehearing review" status ("ARPR"). A case cannot move out of this status without the assigned ALJ taking some action. PRE- If the ALJ determines that a case needs further development, he or she requests that the case be placed in "prehearing development status ("PRE"). RTS- When the ALJ determines that a case is ready for hearing, the case is placed in "ready-to-schedule for a hearing" status ("RTS"). SCHD- As soon as an administrafive employee schedules the case for hearing, the case is placed in "scheduled" status ("SCHD"). UNWR- After the hearing, the ALJ generally issues decisional instmctions and places the case in "unassigned writing" status ("UNWR") until the case is assigned to a decision writer. ALPO- If an ALJ is unable to issue decisional instmctions immediately after the hearing, or needs additional information before rendering a decision, generally the ALJ places the case into "ALJ post-hearing development" status ("ALPO"). POST- If the ALJ decides, after the hearing, that the case needs further development, the case is placed in "post-hearing" status ("POST"). DWFL - Indicates the decision writer is working on a decision at home following the decisional instmctions issued by an ALJ. EDIT- After the decision writer completes the decisional instmctions, he or she places the case into EDIT status for review or editing by the ALJ. SIGN- Once the ALJ finalizes the decision, he or she places the case into SIGN status for his or her electronic signature. An ALJ can only sign a case while in the hearing office. CLOSED - Once the ALJ signs the decision, a member of the administrative staff mails it and then places the case in CLOSED status. 20

21 (Parks Saunders, Tr , 795). 92. The ODAR can print out CPMS reports which show the status history of each case. (Voisin, Tr. 584; Parks Saunders, Tr ). 93. The CPMS reports show when a case has been taken home to be worked on pursuant to Flexiplace. When an ALJ brings a case back into the office, another code in CPMS shows that a case is being worked on in the office. (Parks Saunders, Tr ). 94. If an ALJ were to print information from a case to take home, rather than sign the case out electronically, the fact that the case was taken home for work on Flexiplace would not necessarily be indicated in the CPMS unless the ALJ notified the case technician to input that information into the CPMS. An ALJ is also supposed to keep a manual log of cases taken out on Flexiplace, and therefore, the fact that a case was taken home could be determined by examining the Flexiplace logs that the ODAR maintains. (Parks Saunders, Tr ). 95. The accuracy of the CPMS depends upon the clerical input. If clerical staff do not update the system information correctly, the CPMS reports can indicate an incorrect status of a case. (Willy, Tr. 673, 675; Parks Saunders, Tr ; Traina, Tr. 923). 96. The CPMS system is reliable and as accurate as possible. If any individual finds an error, such as a case being in the wrong status, they are to correct it at that time. In 2009, errors in the CPMS indicating incorrect categories due to clerical errors were extremely rare. (Voisin, Tr. 660; Traina, Tr. 916). 97. Respondent never raised the issue of inaccuracies in CPMS data for her cases with the office supervisor. (Traina, Tr , , 926). 98. It is possible for a case to be shown as closed on the CPMS, yet need additional work. If additional data is received after the date a case is closed, for example, if an attomey submits new medical information or there is an attomey fee dispute, the clerk who receives the data should reopen the case and change the CPMS status to reflect the work being done. (Willy,Tr , 701). 99. When new information comes in on a closed case, CPMS should, but does not always,' reflect that the case was reopened, what decision was implemented, and that the case was then closed. (Willy, Tr ). 21

22 100. Respondent has access to CPMS data. If she could idenfify the cases she worked on while on Flexiplace on the dates provided, she should be able to pull those cases up on CPMS and determine if there was a failure to make post-closure entries. (Willy, Tr ) In 2009, the act of changing the status of a case in the CPMS was done by a senior case technician or lead case technician, a supervisor, or the HOCALJ. (Willy, Tr ) SIGN and EDIT codes are ALJ controlled statuses. If a case was in the wrong status, an ALJ could change it. ALJs have the ability to pull up from CPMS all statuses under their name, and to change statuses of their assigned cases, although many prefer to have the case technicians perform those changes. (Traina, Tr , 923). 2. Agency Flexiplace policies for ALJs 103. Article 14, Section la, of the Collecfive Bargaining Agreement ("CBA") between the SSA and the Association of Administrative Law Judges, International Federation of Professional and Technical Engineers, AFL- CIO, (the "Union") defines the basic work requirement as the number of hours which a judge is required to work or is required to account for by leave or otherwise. "For full-time Judges, the basic work requirement is eighty (80) hours per biweekly pay period." (JX 4 at P4/1) Article 14, Section 3C of the CBA states that "Judges are responsible for working their scheduled workday..." (JX 4 at P4/3) Article 15 ofthe CBA contains the Agency's policies and procedures for ALJs participating in Flexiplace, a voluntary program that allows a judge to perform official duties at an alternative duty station ("ADS") during regular work hours. (JX 4 at P4/8) Article 15, Section 5B ofthe CBA requires that a judge participating in the Flexiplace program will perform official duties at the ADS "with the quality, consistency, and in the manner as performed at the official duty station." (JX4atP4/12) The CBA includes file review, hearing preparation, decision-making, decision instmction preparation, decision drafting and decision editing as "official duties to be performed at the ADS." Article 15, Section 5A. (JX 4 atp4/l2).. 2 2

23 108. Article 15, Secfion 3E of the CBA states that judges who participate in the Flexiplace program must certify their hours worked on a daily basis using a time and attendance roster. (JX 4 at P4/10) The time and attendance roster that ALJs complete states: "Willful falsification of time records may result in severe disciplinary action including a fine of not more than $10,000 or imprisonment or both. (18 USC 287, 1001)." (JX34) Article 15, Section 3N of the CBA prohibits a judge from using duty time at the ADS "for any other purpose other than for performing official duties for the Agency." (JX 4 at P4/11) Article 15, Section 3G ofthe CBA states that a judge will follow the established procedures for requesting and obtaining approval for leave at the ADS and will submit a leave request after the fact when unforeseen circumstances preclude the performance of an eight hour work day and leave was not obtained in advance. (JX 4 at P4/12) Article 15, Section 4H of the CBA requires a judge to prompfiy notify his or her supervisor whenever problems arise that adversely affect his or her ability to perform official dufies at the ADS. (JX 4 at P4/10) Article 15, Section 6 of the CBA states that "A; Judge will not be removed from the Flexiplace program as an act of discipline, adverse action, or reprisal for protected activities." (JX 4 at P4/13) Both when in the office and when working on Flexiplace, the official time authorized for a lunch break is 30 minutes. However, the custom and practice in the ODAR allows people to take an hour for lunch. (Willy, Tr. 693; Parks Saunders, Tr. 862) The Office of Personnel Management ("OPM") requires ALJs to sign in and sign out both when in the office and when on Flexiplace and the CBA requires ALJs to use timesheets. ALJs must fill out their timesheets accurately when they retum from their Flexiplace and tum those timesheets in to their HOCALJ. (Willy, Tr ) When an ALJ is working on Flexiplace and decides to come into the office, the ALJ is required to sign in on a sheet that indicates he or she is working in the office. (Parks Saunders, Tr ; Traina, Tr ). 23

24 117. An ALJ working on Flexiplace must complete a work-at-home, or Flexiplace sheet, as well as a time and attendance roster. (Traina, Tr ) Most judges generally will review five to eight cases when they are taking cases home for Flexiplace and can review each file in an hour to an hour and 15 minutes. Thus, signing out only two or three cases for work on Flexiplace would likely not provide enough work for an eight hour day. (Parks Saunders, Tr ). 3. Charge II, Specification 1: On or about April 13, 2009, Respondent failed to perform her official duties at her ADS 119. Respondent's time and attendance roster for April 13, 2009 states that Respondent worked at home until 4:30 p.m. (JX 34 at 3).^ 120. According to Respondent's work-at-home roster for April 13, 2009, prepared and submitted by Respondent, Respondent logged out two cases, Charles Bowles and Kevin Johnson, for review. (JX 31 at 3) The Bowles case was in CLOSED status as of January 29, 2009, approximately three months prior to Respondent signing it out for review on April 13, (Parks Saunders, Tr. 788; JX 35F at 2) There is no mle that prevents an ALJ from reviewing a file that is closed^ when an attomey's fees dispute comes in. (Voisin, Tr ) If a claimant disputes the amount of attomey's fees, an ALJ can look at the Jetter that the claimant writes disputing the amount and the letter setting forth the fee agreement. (Parks Saunders, Tr. 793). Respondent's time and attendance roster for April 13, 2009, JX 34 at 3, does not indicate Respondent's "time in" but does indicate her "time out" as 4:30 p.m. The Agency's Proposed Finding of Fact on this issue, Number 69, states: "Respondent represented that on April 13, 2009, she performed her official duties at her ADS," citing JX 31.3 (work-at-home roster for April 13, 2009) and JX 34.3 (time and attendance roster for April 13, 2009). Respondent's response to this proposed finding is "Admitted." A review of all of Respondent's time sheets admitted into evidence as JX 34 shows that on other dates when Respondent certified she was working at her ADS, her time in was 8:00 a.m., and her time out was 4:30 p.m. Although on her time sheet for April 13,2009, Respondent left blank the column indicating her "time in," there is no basis in the record to suggest that Respondent did not intend to indicate that her time in on April 13, 2009 was a time other than 8:00 a.m. 24