Testimony on Behalf of Lance Robinson2 (00064837x87C30)

7/23/2019 Testimony on Behalf of Lance Robinson2 (00064837x87C30)

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SHAW BRANSFORD ROTH P.C.

ttorneys

t

Law

1100 Connecticut Avenue NW Suite 900

Washington

D

20036

Tel 202 463 8400

www.shawbransford.com Fax 202.833.8082

December 28, 2015

VIA ELECTRONIC MAIL AND FEDEX

The Honorable John Hardy Isakson

Chairman

United States Senate Committee on Veterans' Affairs

Russell Senate Building, Room 412

Washington, D.C. 20510-6050

public_ [email protected]

The Honorable Richard Blumenthal

Ranking Member


Russell Senate Building, Room 412

Washington, D.C. 20510-6050

public_ [email protected]

Re: Testimony

on

Behalfof Lance Robinson

December 14, 2015 Field Hearing

Dear Chairman Isakson and Ranking Member Blumenthal:

We write on behalf of our client, Mr. Lance Robinson, Associate Director of the Phoenix

VA Health Care System,

U.S. Department

of

Veterans Affairs ( VA ) to provide testimony for

the public record

of

the Committee on Veterans' Affairs ( Committee ) December

14

2015

Field Hearing, Keeping the Promise for Arizona Veterans: the V.A. Choice Card, Management

Accountability and Phoenix V.A. Medical Center ( Field Hearing ).

1

We specifically write to

correct the inaccurate testimony that the VA Under Secretary for Health, Dr. David Shulkin,

gave during the Field Hearing regarding Mr. Robinson's employment status.

I.

BACKGROUND

As you may already be aware, the VA placed Mr. Robinson on paid administrative leave

from his employment with the

V

beginning May 2, 2014.

ee

Summary of Investigations and

1

At the both the beginning and at the end of the Field Hearing, Senator Daniel Sullivan invited

members

of

the public to submit written testimony to be part

of

the official hearing record by e

mailing their testimony to [email protected]

by

December 28, 2015.






December 28,2015

Known Outcomes, enclosed as Exhibit ( Ex. ) 1 at

1;

Administrative Leave Memorandum,

enclosed Ex. 2. On May 30, 2014, VA Deputy Chief

of

Staff Hughes Turner issued a notice

proposing to remove Mr. Robinson from his position and from the federal service, based entirely

on the VA s assertions that Mr. Robinson is culpable for patient care access issues at the Phoenix

VA Health Care System ( Phoenix VA ).

ee Ex.

1

at

1;

Notice

of

Proposed Removal,

enclosed

as

Ex. 3.

Pursuant to Title 5 of the U.S. Code, the VA was only required to provide Mr. Robinson

with 30 days' advance notice of his removal. ee 5 U.S.C. § 7513(b)(1). During that advance

notice period, the VA could have received and evaluated Mr. Robinson's verbal and written

responses

to

the proposed removal. But the VA extended Mr. Robinson's response deadlines

beyond the statutorily required 30-day notice period without explanation and over Mr.

Robinson's express objections. ee Letter from Julia Perkins to Kevin Hanretta dated June 16

2014, enclosed as Ex. 4.

Mr. Robinson replied to the substance of the proposed removal in writing on June 13

2014, keeping with the original submission deadline, and verbally, in person to the deciding

official, Assistant Secretary Kevin Hanretta, on July

11

2014. ee Ex. 1 at

1.

The VA has thus

had the statutory authority to effect Mr. Robinson's removal since July 11, 2014, but it has

declined to exercise that authority. The proposed removal remains pending and Mr. Robinson

remains on paid administrative leave.

ee

Letter from Julia Perkins to Kevin Hanretta dated May

12,2015, enclosed as Ex. 5.

Instead

of

taking action on the pending proposed removal, since at least December 2014,

the VA has engaged in activity that suggests it is attempting to uncover some act of misconduct

buried within Mr. Robinson's twenty-eight years of exemplary service to Veterans to

substantiate an adverse action against him. ee Ex. 1. These actions create the logical inference

that the VA has already decided it cannot sustain the pending proposed removal before an

independent adjudicatory authority,

3

but remains determined to remove Mr. Robinson because of

the political pressure to

do

so.

2

Mr. Robinson was placed on administrative leave at the same time as his two Phoenix VA

colleagues, Health Administration Services Chief Brad Curry and former Director Sharon

Helman, while the VA Office of Inspector General investigated allegations of Veterans dying on

secret wait lists within the health care system.

3

If the VA were to sustain the currently pending proposed removal against Mr. Robinson, Mr.

Robinson would have the right to appeal his removal to the Merit Systems Protection Board

( MSPB ), where the VA would be required to prove its case against Mr. Robinson by a

preponderance

of

the evidence. ee 5 U.S.C. § 7701; 5 C.F.R. § 1201.56(c)(2) (Defining






December 28, 2015

As far as Mr. Robinson is aware, he has been vindicated each time an independent

adjudicatory authority has reviewed any VA report regarding access issues and alleged

retaliation against a Phoenix VA employee, Ms. Paula Pedene. For example, the VA removed

Ms. Sharon Helman from her position

as

Director o the Phoenix VA and from the federal

service, in part, on allegations that she was responsible for access issues the Phoenix VA, relying

in part upon the same evidence it used to propose Mr. Robinson's removal for those same access

issues. On her subsequent appeal to the Merit Systems Protection Board ( MSPB ), an

administrative judge found the VA had failed to prove its allegations against Ms. Helman

regarding access issues at the Phoenix

VA. See Helman v Dep 't o Veterans Affairs,

MSPB

Docket No. DE-0707-15-0091-J-1 (Dec. 22, 2014), enclosed as Ex. 6.

As part o her removal action, the VA also charged

Ms.

Helman with conduct she knew

or should have known ... could be perceived as whistleblower reprisal against

Ms.

Pedene,

relying upon an October 30, 2014 Administrative Investigation Board report issued by Mr.

Michael Culpepper, for which neither Ms. Helman nor Mr. Robinson were interviewed.

Id., at

21-22. But on Ms. Helman's appeal to the MSPB, the administrative judge exonerated

Mr.

Robinson

as

to that allegation, concluding, Robinson would have taken the same action (against

Ms. Pedene], Pedene's disclosures notwithstanding.

5

d.,

at 32.

preponderance o the evidence as, (t]he degree o relevant evidence that a reasonable person,

considering the record as a whole, would accept as sufficient to find that a contested fact is more

likely

to

be true than untrue. );

see also

Ex.

5

at

n.

3 ( . .. the Agency's refusal to issue a

decision on his proposed removal prevents Mr. Robinson from a name clearing before an

impartial adjudicator outside the Agency. ).

4

As Dr. Shulkin told the Committee, the VA reached settlements with the Office o Special

Counsel ( OSC ) on claims

o

whistleblower reprisal at the Phoenix VA. In a September 29,

2014 press release, OSC referred to the settlements

as

significant. We note the VA reached

settlement with OSC on those claims before conducting the investigation it subsequently relied

upon in removing Ms. Helman. The VA's post-OSC settlement investigations, including Mr.

Culpepper's October 30, 2014 report on

Ms.

Pedene's claims, therefore appear little more than

the VA's effort

to

justify its settlements after the fact. In other words, the results o those

investigations appear pre-determined to find whistleblower reprisal to justify the VA' s hasty

settlement agreements.

5

The administrative judge also highlights the VA's own finding in Mr. Culpepper's report that

Ms.

Pedene was observed violating agency computer security policies, apparently for a second

time, potentially justifying the allegedly retaliatory conduct against her.

See

Ex. 6, at 31.






December 28, 2015

Other processes insulated from the influence

ofVA

Central Office management have also

vindicated Mr. Robinson regarding other allegations

of

misconduct.

See Laney v. Dep t

o

Veterans Affairs

MSPB Docket No. DE-1221-15-0139-W-2 (Oct. 4, 2015), enclosed as Ex.

7

at

15

(finding Mr. Robinson did not retaliate ); Ex.

1

at 2 (Mr. Robinson cleared

of

allegations

of

discrimination against Employee A.);

see also

Letter from Julia Perkins to Paula Stokes dated

October 19, 2015, enclosed as Ex. 8 (summarizing details

of

VA investigations into Mr.

Robinson's conduct).

Against the backdrop

of

that reality,

of

which the

VA

is well aware, Dr. Shulkin provided

inaccurate information to the Committee during its Field Hearing. We now submit this written

testimony to provide you with additional information regarding the V

A's

actions against Mr.

Robinson and to correct Dr. Shulkin's testimony. ·

II. DISCUSSION

Dr. Shulkin provided inaccurate information to the Committee in his prepared opening

remarks and in response to questioning from Senator John McCain.

A.

The

VA's

access to witnesses has not been impeded

by

either the Department

of

Justice or the

VA

Office

of

Inspector General.

In his prepared opening remarks, Dr. Shulkin stated,

VHA's

efforts to issue disciplinary

actions in Phoenix and to resolve the administrative leave status

of

two employees have been

delayed by inability to interview witnesses who have not been cleared by the U.S. Attorney's

Office ...

See

Field Hearing Transcript, enclosed as Ex. 9 at 24. Dr. Shulkin repeated the

substance

of

that statement in response to a question from Sen. McCain, stating,

We

would

very, very much like to conclude our administrative and disciplinary actions against those two

officials. The U.S. attorney as,

I've

said in my statement has prohibited us from interviewing

those individuals

...

.

/d.

at 32. Those statements are inaccurate.

While Mr. Robinson was still under criminal investigation, the VA called him to testify

about subjects including patient wait time issues and alleged retaliation against Ms. Pedene

before an Administrative Investigation Board ( AlB ) on December 17, 2014, the same day he

was scheduled to testify as a witness for Ms. Helman in her MSPB appeal.

6

See

Ex.

8

at 88-89

(Affidavit

of

Lance Robinson).

6

The VA cancelled Mr. Robinson's December 17, 2014 AlB interview soon after Ms. Helman

withdrew her request for a hearing.






December 28, 2015

On April 22, 2015, the U.S. Attorney's Office for the District

of

Arizona informed Mr.

Robinson that it would decline to prosecute him based on his conduct as Associate Director of

the Phoenix VA. See Ex. 1 at 2. Per our understanding of U.S. Department of Justice

procedures, the

U.S. Attorney's Office would have notified the VA of the declination before or at

the same time it so informed Mr. Robinson. Investigators from the VA Office of Inspector

General subsequently interviewed Mr. Robinson for approximately six hours on June 9 2015,

regarding access and whistleblower reprisal issues at the Phoenix VA. See Ex. 1 at 2. And an

AlB interviewed Mr. Robinson for another approximately six hours on October 21, 2015, also

regarding access and whistle blower reprisal issues at the Phoenix VA.

d.,

at

3.

In addition to those interviews, the VA also has obtained statements from Mr. Robinson

on a variety of other personnel matters while he has been on administrative leave.

Mr.

Robinson

provided those statements for

VA

investigations into Equal Employment Opportunity complaints

and for MSPB appeals by other employees. See Ex. 1.

Dr. Shulkin's statements regarding the alleged bases for delays in issuing disciplinary

actions in Phoenix based

on

the VA's inability to interview Mr. Robinson is thus inaccurate.

B. The VA has internally determined it cam10t sustain the currently pending May 30,

2014 proposed removal it issued to Mr. Robinson.

In his prepared opening remarks, Dr. Shulkin stated, we have been unable to make a

determination what disciplinary action may be warranted related to the patients' scheduling wait

list issues [in Phoenix]. See Ex. 9, at 24. That statement is inaccurate.

Unless the VA proposed Mr. Robinson's removal for reasons other than those stated in

the proposed removal,

on or

before May 30, 2014, the VA determined through its Deputy Chief

of Staff that it has sufficient information regarding access issues at the Phoenix VA to remove

Mr. Robinson. See Ex. 3. But despite the passage

of

time and even Mr. Robinson's request that

the VA act on the proposed removal so that he can clear his name before the MSPB, the VA has

declined

to

issue a decision on the pending adverse action against Mr. Robinson.

See

Ex. 5.

The VA' s inaction indicates that it has determined it cannot sustain a charge of

misconduct against Mr. Robinson for wait list issues at the Phoenix VA before an independent

adjudicator. Dr. Shulkin's statement that the VA has been unable to make a determination

about what disciplinary action to take related to patients' scheduling wait list issues at the

Phoenix VA is thus inaccurate as applied to Mr. Robinson.





United States Senate Committee on Veterans Affairs

December 28, 2015

III. CONCLUSION

To clarify the record and to hold the VA accountable for its conduct toward Mr

Robinson, who desires to return to duty serving Veterans, and for its statements to Congress, we

submit this written testimony and the enclosed exhibits for the public record

o

the Committee s

Field Hearing.

Sincerely,

Enclosures



TESTIMONY ON BEHALF OF LANCE ROBINSON

DECEMBER 28, 2015

EXHIBIT LIST

1.

Summary of Investigations and Known Outcomes

2. Administrative Leave Memorandum

3. Notice of Proposed Removal

4. Letter from Julia Perkins to Kevin Hanretta dated June 16, 2014

5. Letter from Julia Perkins to Kevin Hanretta dated May 12, 2015

6. MSPB Docket No. DE-0707-15-0091-J-1 (Dec. 22, 2014)

7.

MSPB Docket No. DE-1221-15-0139-W-2 (Oct. 4, 2015)

8. Letter from Julia Perkins to Paula Stokes dated October 19, 2015

9. Field Hearing Transcript



Lance Robinson

Summary of Investigations and Known Outcomes

December 28, 2015

1. May 2, 2014 – U.S. Department of Veterans Affairs (“VA”) places Phoenix VA Health

Care System (“Phoenix VA”) Associate Director Lance Robinson and Phoenix VADirector Sharon Helman on administrative leave.

2. May 28, 2014 –VA Office of Inspector General (“OIG”) issues Interim Report titled,“Review of Patient Wait Times, Scheduling Practices, and Alleged Patient Deaths at the

Phoenix Health Care System.”

3. May 30, 2014 – VA proposes Mr. Robinson’s and Ms. Helman’s removal from federal

service based on their alleged culpability related to access issues at the Phoenix VA,

based solely on Interim VA OIG Report.

4.

June 13, 2014 – Mr. Robinson submits his written reply to the proposed removal to thedeciding official, Assistant Secretary Kevin Hanretta.

5. July 11, 2014 – Mr. Robinson delivers his oral reply to the proposed removal to Assistant

Secretary Hanretta, completing full exercise of his response rights. VA has been legally

able to effect Mr. Robinson’s removal since this date.

6. July 23, 2014 – VA initiates Administrative Investigation Board (“AIB”) into allegations

that Mr. Robinson and Ms. Helman committed acts of whistleblower reprisal againstPhoenix VA employee Paula Pedene.

7. August 26, 2014 – Without interviewing Mr. Robinson or Ms. Helman for the

investigation, VA OIG issues Final Report, titled “Review of Alleged Patient Deaths,

Patient Wait Times, and Scheduling Practices at the Phoenix VA Health Care System,”

finding, “we are unable to conclusively assert that the absence of timely quality carecaused the deaths of these veterans.” Final Report, at ii.

8. October 30, 2014 – Without interviewing Mr. Robinson or Ms. Helman for theinvestigation, VA issues final AIB report finding that Mr. Robinson and Ms. Helman

committed acts of reprisal against Ms. Pedene.

9. November 24, 2014 – VA rescinds the May 30, 2014 proposed removal against Ms.

Helman and issues new proposed removal, proposing to remove her on matters including

access issues at the Phoenix VA and reprisal against Ms. Pedene, based upon the FinalOIG Report and the October 30, 2014 AIB report.

10. December 22, 2014 – The Merit Systems Protection Board (“MSPB”) issues decision on

Ms. Helman’s appeal of her removal action, finding VA failed to prove its chargesregarding access issues at the Phoenix VA and reprisal against Ms. Pedene. The MSPB

decision also concludes, “Robinson would have taken the same action [against Ms.

Testimony on Behalf of Lance RobinsonExhibit 1, p. 1



Lance RobinsonSummary of Investigations and Known Outcomes

December 28, 2015

Page 2

Pedene], Pedene’s disclosures notwithstanding,” clearing him of the allegations of

whistleblower reprisal in the October 30, 2014 AIB report. MSPB Docket No. DE-0707-

15-0091-J-1 (Dec. 22, 2014), at 32.

11. January 5, 2015 – VA convenes an AIB to investigate, in part, Mr. Robinson “in

connection with findings contained in the Office of Inspector General Oversight Report #14-02603-267, dated August 26, 2014,” and “[t]he degree of knowledge, involvement,

and culpability for Lance Robinson, Associate Director, and Brad Curry, Chief of Health

Administration, in connection with claims of “whistleblower” retaliation against Paula

Pedene.” AIB Charge Letter, at 1-2.

12. February 5, 2015 – VA interviews Mr. Robinson as part of its investigation into the Equal

Employment Opportunity (“EEO”) complaint of one of his subordinates, Employee A,regarding allegations that Mr. Robinson committed acts of discrimination against

Employee A.

13. February 17, 2015 – Mr. Robinson provides a statement to VA for its investigation into

the EEO complaint of one of his subordinates, Employee B, regarding allegations that

Mr. Robinson committed acts of discrimination against Employee B. Mr. Robinson isunaware of the status or outcome of this investigation.

14. April 22, 2015 – U.S. Attorney’s Office telephones Mr. Robinson’s counsel and informs

them the criminal investigation into Mr. Robinson’s conduct at the Phoenix VA is

closing.

15.

May 12, 2015 – Mr. Robinson’s counsel writes to Assistant Secretary Hanretta,requesting he inform them of when he anticipates issuing a decision on the May 30, 2014

proposed removal.

16. June 9, 2015 – VA OIG issues Mr. Robinson a Kalkines warning and interviews him as

follow-up to its Final Report dated August 26, 2014.

17. September 15, 2015 – An attorney from VA Office of General Counsel (“OGC”)

telephones Mr. Robinson’s counsel and states the Mr. Robinson may expect to hear abouta decision on the May 30, 2014 proposed removal, “hopefully” before the end of 2015.

18.

Mid-September, 2015 – VA issues a Final Agency Decision (“FAD”) on Employee A’sEEO complaint, finding that Mr. Robinson did not discriminate against Employee A. TheFAD determined Mr. Robinson acted appropriately in Employee A’s matter and that his

action in reprimanding a subordinate manager relieved the VA of any liability in

Employee A’s matter.

19. October 14, 2015 – MSPB issues a decision on a complaint of whistleblower reprisal by

Phoenix VA Chief Financial Officer Tonja Laney, finding that VA did retaliate against




Lance RobinsonSummary of Investigations and Known Outcomes

December 28, 2015

Page 3

her for her protected whistleblowing activity, but expressly stating that Mr. Robinson

“did not retaliate against [Ms. Laney].” MSPB Docket No. DE-1221-15-0139-W-2 (Oct.

14, 2015), at 15.

20. October 21, 2015 – Mr. Robinson is interviewed by the AIB convened on January 5,

2015, on matters including access issues at the Phoenix VA and allegations ofwhistleblower reprisal against Ms. Pedene.




UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DENVER FIELD OFFICE

SHARON HELMAN,

Appellant,

v.

DEPARTMENT OF VETERANSAFFAIRS,

Agency.

DOCKET NUMBERDE-0707-15-0091-J-1

DATE: December 22, 2014

Debra L. Roth, Esquire, Washington, D.C., for the appellant.

James P. Garay Heelan, Washington, D.C., for the appellant.

Julia H. Perkins, Esquire, Washington, D.C., for the appellant.

Bradley Flippin, Esquire, Nashville, Tennessee, for the agency.

Hansel Cordeiro, Esquire, Washington, D.C., for the agency.

Jeffrey T. Reeder, Esquire, Dallas, Texas, for the agency.

Kimberly Perkins McLeod, Esquire, Washington, D.C., for the agency.

Thomas R. Kennedy, Esquire, Denver, Colorado, for the agency.

BEFORE

Stephen C. MishChief Administrative Judge

DECISION

On December 1, 2014, the appellant timely filed this appeal challenging the

agency’s November 24, 2014 action removing her from her position as the Senior




2

Executive Service (SES) Director of its Phoenix, Arizona Medical Center, and

from the federal civil service altogether. Appeal File (AF), Tab 1. The Board

has jurisdiction over the appeal pursuant to 38 U.S.C. § 713(d)(2)(A).

For the reasons set forth below, the agency’s action is AFFIRMED.

ANALYSIS AND FINDINGS

Outstanding Ruling

Due to issues with the agency’s discovery responses, the parties were

ordered to brief the issue of whether an adverse inference should be drawn

against the agency with regard to those responses. Having considered the parties’

arguments, no adverse inference will be drawn against the agency. The shortened

process of 38 U.S.C. § 713 is new. Expecting the agency to accomplish in a few

days what normally requires several weeks or more to do correctly is simply not

realistic.1 By that same token, although as ruled previously, the appellant could

be subject to an adverse inference for not responding to the agency’s discovery

requests by invoking the Fifth Amendment right against self-incrimination, she

will not be. She is caught between a Scylla and Charybdis of criminal and civil

processes focused on overlapping events. Therefore, both parties’ claims aredecided based on the evidence they adduced to support them.

Findings of Fact

The preponderant evidence of record establishes the following.2 Over the

course of a decade, the agency’s Office of Inspector General (OIG) publicly

reported a variety of concerns with agency medical care facilities across the

country, which included allegations of altered patient appointment lists, and the

1 As the agency gains more experience in these cases, it may be expected to have a

better system for responding to discovery in place.

2 Record citations are to the pagination applied by the Board’s electronic docketing

system.




3

failure to use electronic wait lists (EWL). (AF, Tab 48, p. 16). Indeed, since

2005, the OIG has issued at least 18 reports identifying deficiencies in scheduling

at the local and national level, (AF, Tab 6, p. 38).

Specifically with respect to Phoenix VA Health Care System (PVAHCS),on September 2, 2006, the OIG wrote a memorandum to the then-Director

regarding allegations of altered patient wait times and the failure to use the EWL

(AF, Tab 41, p. 165). In it, the OIG concluded that PVAHCS had engaged in an

“accepted practice” of altering appointments to avoid wait times greater than 30

days in an effort to improve performance measures ( Id.).

The appellant was first appointed to the Senior Executive Service in 2007

as the director of an agency facility in Walla Walla, Washington. (AF, Tab 18,

SF-50, p. 35). She later transferred to Hines, Illinois as the director of the

agency’s facility there. ( Id. p. 33). On February 26, 2013, the appellant

transferred to Phoenix and became the PVAHCS Director. ( Id.). At that point,

her direct supervisor was Veterans Integrated Service Network (VISN) 18

Director Susan Bowers. (AF, Tab 71, Appellant’s Merits Brief, Bowers Decl. p.

76).

As the SES Director of the PVAHCS, the appellant was responsible for a

wide range of oversight of operations. (AF, Tab 6, Performance Assessment, pp.

24-34). For example, the appellant was generally tasked with broad goals such as

developing an organizational vision, balancing change and continuity, fostering

high ethical standards, and the like. ( Id., pp. 25-26). These broad goals were

further fleshed out by more specific directives such as, “The SE will increase

high performing inter-professional team-based care to achieve patient-driven

health care and coordination of care across all care settings, both within and

outside VHA.” ( Id ., p. 28). The appellant was also generally responsible for

leading the staff and, when necessary, holding employees accountable for

appropriate levels of performance and conduct. ( Id ., p. 25).




4

Very early on after the appellant moved to Phoenix, likely the evening

before her first official day of work, she spoke with Dr. Katherine Mitchell, who,

at the time, was the Director of the PVAHCS Emergency Department (ED). (AF,

Tab 8, Mitchell Interview; pp. 61-62). During that meeting, Dr. Mitchell reportedto the appellant that the ED was so understaffed and so dangerous that, in her

opinion, it needed to be shut down. ( Id., pp. 23, 61-62, 63). Nevertheless,

according to Dr. Mitchell, the appellant did not follow up with her on the matter,

although, for her part, Dr. Mitchell did not follow up with the appellant, either.

( Id ., p. 65). In any event, Dr. Mitchell continued to raise the issue of ED staffing

with others, as reflected in her June 6, 2012 memo to ED Nurse Manager

Catherine Gibson regarding her concerns with the conduct and insufficient skill

level of a particular ED nurse during a busy night. (AF, Tab 7, p. 73).

Not long after the appellant began her position in Phoenix, in or around

March or April of 2012, PVAHCS Public Affairs Officer Paula Pedene briefed

the appellant regarding her allegations of a hostile work environment under the

prior Director, Gabriel Perez. (AF, Tab 10, Pedene Tr., pp. 12, 14). Pedene

informed the appellant of various concerns she had about how Perez had berated

and belittled employees, and how, to her observation, the PVAHCS staff did not

trust him. ( Id., 13). The meeting lasted approximately 30-45 minutes. ( Id., p.

16).

On December 3, 2012, Dr. James Felicetta, the PVAHCS Chief of

Medicine, administratively reassigned Dr. Mitchell, effective December 10, 2012,

from the ED to the Operation Enduring Freedom, Operation Iraqi Freedom, and

Operation New Dawn Clinic, where she would report directly to Dr. Christopher

Burke. (AF, Tab 7, Felicetta’s Memorandum, p. 71). According to Dr. Felicetta,

the reassignment was because PVAHCS had “identified a greater need” for Dr.

Mitchell’s services “in another area,” and Dr. Felicetta took the opportunity to

express his “sincerest appreciation” for Dr. Mitchell’s “hard work, dedication,




5

and leadership that [she] provided for our veterans in the Emergency

Department.” ( Id.).

In late November 2012, Pedene’s husband, who was an agency volunteer,

not an employee, was observed by a PVAHCS employee working on hercomputer and, this employee informed Robinson of his observation. (AF, Tab 11,

Subtab 27, Pedene ROI, p. 70). By memorandum dated December 10, 2012,

PVAHCS Associate Director Lance Robinson informed Pedene that she was being

temporarily reassigned for an initial period of 30 days to the hospital’s Education

Section. (AF, Tab 9, p. 33). Robinson’s stated that the reassignment was due to

an allegation of possible misconduct by Pedene, but the misconduct was not

further described ( Id .).

On about July 22, 2013, Dr. Mitchell contacted Arizona Senator John

McCain’s office expressing various concerns about veterans’ medical care and

recent suicide trends at PVAHCS. (AF, Tab 7, Subtab 11, Mitchell Issue Brief, p.

68; Tab 9, Mitchell Complaint Summary, pp. 8-17). Among other things, Dr.

Mitchell requested that the OIG dispatch an investigative team to conduct a

PVAHCS investigation. ( Id.). In response to Dr. Mitchell’s contact, by letter

dated September 4, 2013, Senator McCain’s office wrote to agency Deputy

Director of Legislative Affairs, Adam Anicich, and reiterated Dr. Mitchell’s

request for an out-of-state OIG investigation of PVAHCS regarding a variety of

topics, including “the number of suicides since 2010,” and the “confusing and

confidential nature of the electronic ‘wait list’ for veterans to be seen by a

physician.” (AF, Tab 9, McCain Letter, p. 6).

By memorandum dated September 20, 2013, the appellant placed Dr.

Mitchell on administrative leave pending the outcome of a fact finding

investigation. (AF, Tab 7, Mitchell Leave Memorandum, p. 64). Although not

stated in the memorandum, the reason for the administrative leave and fact

finding is reflected in an October 2, 2013 “Issue Brief” regarding Dr. Mitchell’s

alleged “inappropriate access to veteran charts” (AF, Tab 7, Subtab 11, Mitchell




6

Issue Brief, p.68). The focus was Dr. Mitchell’s 16-page letter to Senator

McCain’s office regarding medical care issues and recent suicide trends, as well

as Dr. Mitchell’s request that the OIG dispatch an investigative team to PVAHCS

to conduct an investigation. ( Id .). According to the Issue Brief, Dr. Mitchellaccessed the medical chart “without a role based need[.]” ( Id .). Additionally, on

December 19, 2013, Dr. Burke, Chief of Ambulatory Care, provided Dr. Mitchell

with a written non-disciplinary counseling regarding the fact that Dr. Mitchell

“may have” disclosed personally identifying health information without following

applicable policy and procedures. (AF, Tab 7, Subtab 10, Mitchell Counseling, p.

66). According to Dr. Burke, Dr. Mitchell was being counseled for making

disclosures of personally identifying patient information that was “outside the

normal functions” of her position. ( Id .). The memorandum counseled Dr.

Mitchell that, in the future, any such disclosure needed to be vetted through the

appropriate agency Privacy Officer first. ( Id .).

On April 9, 2014, Congressman Jeff Miller, Chairman of the House

Committee on Veterans Affairs, announced allegations that Veterans were dying

while waiting on “secret” wait lists to receive care at PVAHCS. (AF, Tab 45, Ex.

bbb, Safety Letter, p. 173). Thereafter, many politicians took interest in the

operations of the PVAHCS and the appellant, herself. For example, in a letter

dated April 14, 2014, Congressmen David Schweikert, Trent Franks and Matt

Salmon wrote to the appellant directly to express their “great concerns” with the

indication that, under her leadership, there were “secret lists” to keep patient wait

times artificially low. (AF, Tab 35, Ex. s, Schweikert Letter, p. 22). They

asserted that “Because of [her] and [her] leadership team’s choices, forty or more

veterans have died due to lack of care.” ( Id .). The Congressmen called upon the

appellant and other PCAHCS managers to resign. ( Id .). On that same date, the

Congressmen also wrote to then-Secretary Eric Shinseki and requested that he

immediately remove the PVAHCS leadership team from their positions. (AF, Tab

35, Ex. t, Schweikert Letter, p. 23).




7

On May 2, 2014, the appellant and Robinson were both placed on

administrative leave by order of the Secretary. (AF, Tab 35, Exs. w-y, pp. 34-

36). On May 21, 2014, President Obama announced that he would “not stand” for

misconduct within the VA health system, and that anyone found to have falsifiedrecords would be held accountable. (AF, Tab 36, Ex. ee, President’s Statement,

pp. 11-14). At the same time, however, the President announced the need to

allow the investigators looking in to the matter to gather the facts and get to the

bottom of the situation before making any judgments. ( Id .).

Next, on May 28, 2014, the OIG issued an Interim Report regarding

PVAHCS. (AF, Tab 6, Ex. 5, Interim OIG Report, pp. 36-70). The OIG was

asked to investigate various allegations, including “gross mismanagement of VA

resources and criminal misconduct by VA senior hospital leadership, creating

systematic patient safety issues and possible wrongful deaths.” ( Id ., p. 38). As

stated in the Interim Report, some of these issues were not new: since 2005 the

agency’s OIG had issued 18 reports that identified deficiencies in scheduling at

the local and national level. ( Id.).

The OIG Interim Report focused on two issues: (1) Did the facility’s

electronic wait list (EWL) purposely omit the names of veterans waiting for care

and, if so, at whose direction? (2) Were the deaths of any of these veterans

related to delays in care? ( Id., p. 39). In terms of conclusions, the Interim Report

“substantiated serious conditions” and identified 1700 veterans who were waiting

for a primary care appointment but were not on the EWL. ( Id., p. 40). The

Interim Report also concluded that “the Phoenix HCS leadership significantly

understated the time new patients waited for their primary care appointment in

their FY 2013 performance appraisal accomplishments, which is one of the

factors considered for awards and salary increases.” ( Id.). The OIG also found

the use of wait lists at PVAHCS, other than the office EWL, which may have

been basis for allegations regarding the creation of “secret” lists. ( Id.).




8

Following the release of this interim report, on May 30, 2014, the agency’s

Deputy Chief of Staff Hughes Turner proposed the appellant’s removal. (AF, Tab

18, Subtab 3d, p. 29). The proposal letter included one charge: failure to provide

oversight. ( Id.). The specifications were based on the OIG Interim Report. ( Id.)The agency, however, did not make a decision on this proposed removal.

In the meantime, the OIG was still investigating the circumstances at the

PVAHCS and was also examining allegations about the appellant, herself. On

August 26, 2014, the OIG issued its final report. (AF, Tab 6, Ex. 6, Final OIG

Report, pp. 72-214), which reached the following conclusions:

• “While the case reviews in this report document poor quality of care,

we are unable to conclusively assert that the absence of timely quality care

caused the deaths of these veterans.” ( Id., p. 77);

• The OIG identified numerous veterans who were on unofficial wait

lists, but not on the official EWL. ( Id., p. 78);

• “PVAHCS senior administrative and clinical leadership were aware

of unofficial wait lists and that access delays existed. Timely resolution of these

access problems had not been effectively addressed by PVAHCS senior

administrative and clinical leadership.” ( Id.);

• “As a result of using inappropriate scheduling practices, reported

wait times were unreliable, and we could not obtain reasonable assurance that all

veterans seeking care received the care they needed.” ( Id.);

• “The emphasis by Ms. Sharon Helman, the Director of PVAHCS, on

her “Wildly Important Goal” (WIG) effort to improve access to primary care

resulted in a misleading portrayal of veterans’ access to patient care. Despite

claimed improvements in access measures during fiscal year (FY) 2013, we

found her accomplishments related to primary care wait times and the third-next

available appointment were inaccurate or unsupported.” ( Id ., p. 79).

The Final OIG Report focused on five questions. ( Id ., p. 76). First, were

there clinically significant delays in care? On that issue, the OIG concluded that




9

there were “access barriers that adversely affected the quality of primary and

specialty care provided for them.” ( Id ., p. 113). Second, did PVAHCS omit the

names of veterans waiting for care from its Electronic Wait List (EWL)? For that

issue, the OIG concluded as follows: “PVAHCS maintained what we determinedto be unofficial wait lists, and used inappropriate scheduling processes, which

delayed veterans’ access to health care services. We identified over 3,500

additional veterans who were waiting to be scheduled for appointments. Those

3,500 veterans were not on the EWL as of April 2014; most were on what we

determined to be unofficial wait lists. PVAHCS management was aware of many

of the documents that we identified as unofficial wait lists and that access delays

existed in PVAHCS. Senior PVAHCS administrative and clinical leaders did not

effectively address these access problems.” ( Id., p. 128). Third, were PVAHCS

personnel following established scheduling procedures? In that respect, the OIG

concluded as follows: that PVAHCS personnel did not always follow established

VHA scheduling practices, and that “[s]ome schedulers acknowledged that they

manipulated appointment dates by using prohibited scheduling practices because

of pressure to meet wait time goals imposed by leaders at VHA and PVAHCS”;

as a result, reported wait times were “unreliable,” and the actual wait times were

“unknown” to key stakeholders. ( Id ., p. 134). Fourth, did the PVAHCS culture

emphasize goals at the expense of patient care? On that issue, the OIG concluded

as follows: that “PVAHCS’s emphasis on goals resulted in a misleading portrayal

of veterans’ access to patient care. Despite Ms. Helman’s claims of successful

improvements in access measures during FY 2013, we found those

accomplishments were inaccurate and unsupported.” ( Id., p. 144). Fifth, were

scheduling deficiencies systematic throughout VHA? On that issue, the OIG

offered recommendations, but there were no formal conclusions. ( Id .).

Also during this period following the May 30, 2014 proposed removal, the

agency was conducting internal investigations in to the actions taken against Dr.

Mitchell and Pedene. By memo dated September 16, 2014, Mike Culpepper, of




10

the agency’s Office of Accountability Review, issued a Report of Investigation

regarding Dr. Mitchell’s allegation that she was subject to whistleblower reprisal.

(AF, Tab 7, Ex. 14, Mitchell ROI, pp. 77-94). Among other things, the

Culpepper Report of Investigation sustained Dr. Mitchell’s retaliation claimagainst Dr. Deering, Dr. Piatt, and Claflin for allowing staff to persist in their

hostile and insubordinate attitude toward Dr. Mitchell, and their failure to timely

and thoroughly review Dr. Mitchell’s allegations. ( Id., p. 93). This report also

found that Dr. Deering engaged in retaliation by reassigning Dr. Mitchell, even

though it was based on Dr. Deering’s stated desire to remove Dr. Mitchell from a

“malignant situation” in the ED, because that situation developed as a result of

Dr. Mitchell’s disclosures. ( Id . , p. 93). The report also concluded that it was

within Dr. Mitchell’s area of responsibility to report on ways to reduce patient

suicides, such that it was retaliation to issue her written counseling for violating

patient privacy in that respect. ( Id ., p. 94). The report also sustained a finding of

retaliation with respect to Dr. Mitchell’s FY 10, 11 and 12 performance ratings,

which included comments regarding delays in scheduling, and adverse

interactions with nursing staff, which went to the core of Dr. Mitchell’s

disclosures. ( Id.). The report recommended administrative action against those

who had retaliated against Dr. Mitchell. ( Id .). This report did not include any

express conclusions about the appellant retaliating against Dr. Mitchell, but did

mention the appellant’s September 2013 decision to place Dr. Mitchell on

administrative leave, which was related to her possible release of patient’s

information to Senator McCain. ( Id ., p. 78).

With regard to Pedene, on October 30, 2014, Culpepper issued a second

report regarding Pedene’s allegations of whistleblower reprisal. (AF, Tab 11, Ex.

27, Pedene ROI, pp. 64-84). This report concluded that Pedene had been subject

to retaliation regarding her reporting of the prior director’s actions. It

recommended that “[a]ppropriate administrative action should be initiated against

Ms. Helman and Mr. Robinson for engaging in retaliatory acts related to Ms.




11

Pedene’s detail, and the manner in which the subsequent investigations regarding

alleged computer violations and misuse of appropriated funds were conducted”

( Id., p. 83).

Following the issuance of this report, the agency rescinded the May 30,2014 proposal notice. (AF, Tab 18, Subtab 3c, Recession Letter, p. 27). By

memorandum titled “Pending Action” (PAM) dated November 10, 2014, Sloan

Gibson, the Deputy Secretary of Veterans Affairs, notified the appellant he was

proposing to remove her under the provisions of the recently passed Veterans

Access, Choice and Accountability Act of 2014. (AF, Tab 1, PAM, pp. 9-13).

The new removal notice was based on three charges. Id.

The appellant responded to the proposal through counsel. In her November

17, 2014 response, the appellant contended she was being scapegoated for the

PVAHCS situation to protect higher level agency leaders and voiced her belief

that she would be removed to appease various Congresspersons no matter what

she said. (AF, Tab 1, PAM Response, p. 18-19). She also made various legal

arguments as to why the agency’s actions toward her were improper and why, on

appeal, it would not be able to prove the charges it brought. ( Id.)

On November 24, 2014, Deputy Secretary Gibson sustained his proposal

and removed the appellant from her position and the federal service. (AF, Tab 1,

Removal Letter, pp. 31-33). This appeal followed.

I reserve additional findings for discussion below.

Background Legal Standards

The agency must prove its charged misconduct by preponderant evidence.

See 5 C.F.R. § 1210.18(a). That is the “degree of proof which is more probable

than not.” Black’s Law Dictionary, 1182 (6th ed.) See also 5 C.F.R.

§ 1201.56(c)(2) (a preponderance of the evidence is that degree of relevant

evidence that a reasonable person, considering the record as a whole, would




12

accept as sufficient to find that a contested fact is more likely to be true than

untrue).

A misconduct charge typically consists of two parts, a name or label that

generally characterizes the misconduct and a narrative description of the allegedacts that constitute the misconduct. See Alvarado v. Department of the Air Force ,

103 M.S.P.R. 1, 9 (2006) (citing Otero v. U.S. Postal Service, 73 M.S.P.R. 198,

203 (1997)). Where an agency uses “general charging language” for its label,

language which does not describe the misconduct with particularity, one “must

look to the specification to determine what conduct the agency is relying on as

the basis for its proposed disciplinary action.” See LaChance v. Merit Systems

Protection Board , 147 F.3d 1367, 1371 (Fed. Cir. 1998). The Board is required

to review the agency’s decision on a disciplinary action solely on the grounds

invoked by the agency; it may not substitute a more adequate or proper basis. See

Minor v. U.S. Postal Service, 115 M.S.P.R. 307, 311 (2010); Walker v.

Department of Army, 102 M.S.P.R. 474, 477 (2006); Gottlieb v. Veterans

Administration, 39 M.S.P.R. 606, 609 (1989).

If the agency proves misconduct by the appellant, its chosen penalty is

presumed reasonable and will be upheld unless the appellant adduces

preponderant evidence that the agency’s chosen penalty is unreasonable under all

the circumstances of the case. See 5 C.F.R. § 1210.18(a), (d); 2 McCormick On

Evidence §§ 342, 344 (7th ed.) If the appellant meets that burden, the agency’s

action must be reversed. See 5 C.F.R. § 1210.18(a), (d).

With her affirmative defenses, the appellant must prove them by

preponderant evidence. 5 C.F.R. § 1210.18(b)(3), (c). With her claim of harmful

error, the appellant must prove there was a law, rule or regulation applicable to

the removal proceedings, the agency did not follow it, and that, if it had been

followed, the agency was likely to have reached a different decision on her

removal. See 5 C.F.R. §§ 1201.56(c)(3), 1210.18(c); Cornelius v. Nutt , 472 U.S.

648, 657-59 (1985) (harmful error is not defined in 5 U.S.C. § 7701 and the




13

Board defines it by regulation). With her claim of denial of due process, the

appellant must prove that the agency did not provide her with a meaningful

opportunity to respond to its proposal notice. See Stone v. Federal Deposit

Insurance Corporation, 179 F.3d 1368, 1376 (Fed. Cir. 1999).

The agency has proven the appellant engaged in misconduct.

The agency brought three charges of misconduct against the appellant. The

first was styled “Lack of Oversight” and the agency set out four specifications to

support it. This is generalized charging language and the specifications

supporting the charge determine what the agency must prove. See LaChance, 147

F.3d at 1371. The first, “Specification A,” stated, in its entirety:

In report number 14-02603-267, issued on August 26, 2014, theDepartment of Veterans Affairs (VA) Office of Inspector General(OIG) determined that the Phoenix VA Health Care System(PVAHCS) did not include all Veterans who were waiting to bescheduled for an appointment on an electronic wait list (EWL).According to VHA Directive 2010-027, the EWL is the officialwait list for outpatient clinical care appointments and no otherwait lists should be used for tracking requests for outpatientappointments. As of around April 2014, numerous Veterans werewaiting to be scheduled for an appointment at PVAHCS but were

not on the EWL. As the Director of PVAHCS, you knew orshould have known that PVAHCS was not in compliance withVHA Directive 2010-027.

(AF, Tab 1, PAM, p. 9).

This specification cannot be sustained because, although it sets forth a state

of affairs at the PVAHCS which the agency found unacceptable, it does not

expressly set forth any particular actions or inactions by the appellant which

could constitute misconduct by her. See LaChance, 147 F.3d at 1371 (“we must

look to the specification to determine what conduct the agency is relying on”)

(emphasis added). One can be supplied through implication. For example, while

it is not stated in the charge, adding a line to the effect of “and you did not

attempt to bring it in to compliance” or perhaps “you allowed that state of affairs

to persist” would set forth something the appellant did or failed to do. The




14

problem with expressly adding what is implied, however, is that I would be

guessing at what the agency intended and adding terms to the agency’s charge

letter that the agency did not put there itself.3 Such modification of the agency’s

specification at this stage of proceedings is impermissible. See Minor , 115M.S.P.R. at 311; Walker , 102 M.S.P.R. at 477; Gottlieb, 39 M.S.P.R. at 609.

More generally, as the Director of the PVAHCS, the appellant was not

personally tasked with doing the day-to-day data entry to place a veteran on the

EWL. (AF, Tab 6, Performance Assessment, pp. 24-34). To the extent an agency

wishes to hold a manager responsible for any failures of his or her subordinates,

i.e., those that occur on his or her watch, it may do so. See, generally, Miller v.

Department of Navy, 11 M.S.P.R. 518, 521 (1982) (“A supervisor, by his very

position, may be held accountable for improprieties stemming from the actions of

his subordinates”). However, in order to do so, an agency must identify the

subordinates, show what the subordinates’ failures were, show why the manager

should have known about them and show that he or she failed to take action to

correct the identified failures. See id. at 519-21. See also Mauro v. Department

of Navy, 35 M.S.P.R. 86, 91-93 (1987) (same). To phrase it more colloquially, an

agency must connect the dots of fault from the identified failure by the

subordinates back up the line to the manager. The agency did not attempt to do

so here.4 Accordingly, this specification is not sustained.

3 This omission is made more glaring when Specification A is compared to

Specification B, which also describes an unacceptable state of affairs, but whichexplicitly states what the agency contends the appellant failed to do about it but shouldhave.

4 The agency argues for a different rule of law, one of strict liability, in essence. It

contends, “Appellant’s actual knowledge of the deficiency is immaterial, since thespecification falls under a charge of ‘lack of oversight.’ Effectively, whether or notAppellant knew that PVAHCS was not in compliance with the Directive, it was herresponsibility to ensure that the facility was in compliance, and she neglected her dutyto do so.” (IAF, Tab 71, p. 12). It cites no authority for such a no-fault proposition, Iam aware of none and I decline to adopt it. Statutes are to be interpreted by starting




15

The next specification, Specification B, supporting the charge of “Lack of

Oversight” alleged that:

According to OIG report number 14-02603-267, around October2012, PVAHCS data management staff identified a backlog of

approximately 2,500 new patient appointments in Primary Carethat were scheduled later than December 1, 2012. Some of theseappointments were scheduled for almost a year in the future.Despite efforts to reduce the backlog, approximately 544 of the2,501 Veterans had not received Primary Care appointments as ofMarch 31, 2014. As of August 26, 2014, approximately 143 ofthese patients had still not received a Primary Care appointment.As the Director of PVAHCS, you knew or should have known thatthe backlog for Primary Care appointments could have jeopardized patient care and safety. Consequently, you should

have taken immediate action to remedy the situation or notifiedyour senior leadership so they were aware and could assistPVAHCS.

(AF, Tab 1, PAM, p. 9).

Thus, the agency must prove the appellant either did not take “immediate

action to remedy the situation” or that she did not “notif[y] [her] senior

leadership” of it. See LaChance, 147 F.3d at 1371; Chauvin v. Department of the

Navy, 38 F.3d 563, 565 (Fed. Cir. 1994); James v. Department of the Air Force,

73 M.S.P.R. 300, 304 (1997). In support of this specification, the agency relies

almost exclusively on a particular page of the OIG Final Report. (AF, Tab 71,

Agency’s Merits Brief, pp. 12-15). This is permissible. See Addison v.

Department of Health and Human Services , 46 M.S.P.R. 261, 269 (1990) (“While

with the plain meaning of their language. Hawkins v. United States , 469 F.3d 993, 1000(Fed. Cir. 1996). Section 713 speaks in terms of “misconduct.” That term is defined in

the statute to mean “neglect of duty, malfeasance, or failure to accept a directedreassignment[.]” 38 U.S.C. § 713(g)(2). “Neglect of duty” is not itself specificallydefined, and the common definition of “neglect” is “to give little attention or respect to:disregard” or “to leave undone or unattended to esp. through carelessness.” Merriam-

Webster’s Collegiate Dictionary, 829 (11th ed. 2003). Thus, even under the agency’stheory of neglect of duty, the agency would have to prove there was something theappellant was supposed to do, some task or undertaking she was to accomplish, but thatshe left undone or disregarded.




16

it is true that the agency did not introduce the original workpapers on which the

removal action was based, the Board has found that the introduction of such

original sources is not required to sustain an agency action”). That portion of the

OIG Final Report recounts that, in October of 2012, approximately eight monthsafter the appellant started in Phoenix, data management employees of the division

of the agency known as the “Health Administration Service” (HAS) “identified

new patient appointments in Primary Care that were scheduled later than

December 1, 2012.” (AF, Tab 6, Subtab 6, Final OIG Report, p. 120). According

to the OIG report, “[s]ome of these appointments were scheduled for almost a

year in the future” and these delayed appointments “represented a backlog of

2,501 appointments.” ( Id.). The report states that “[t]he goal at the time” was to

divide that backlog of new patient appointments up among the primary care

providers available and get them earlier appointments. ( Id.). According to the

report, HAS staff distributed these waiting patients among 43 providers, 28 of the

providers at the main Phoenix facility with the remainder at external agency

clinics. ( Id.). As set forth in the report, “[d]espite the effort to redistribute the

veterans to other providers with the intent of getting an earlier appointment, we

determined 544 of the 2,501 veterans had not received Primary Care

appointments as of March 31, 2014.” ( Id.). The OIG report then recounts that its

investigators went through the electronic health records of 200 of the 544

veterans who had still not had an appointment by that time. Id. Of that 200, 143

were still waiting to be seen, with the remainder no longer needing an

appointment for various reasons ranging from moving out of the Phoenix area all

the way to the death of the waiting patient. ( Id.).

The appellant challenges the overall accuracy of the report, beginning with

the fact she was not interviewed by the OIG’s investigators for it. She does not,

however, take specific issue with the accuracy of the numbers contained in this

section of the OIG report. Rather, she contends that this specification “should

fail because: 1) Ms. Helman’s team did make significant, effective efforts to




18

issue with the implication that the agency’s senior leadership was unaware of

problems with getting all veterans who put in for appointments and needed to be

seen actually seen. The agency concedes, through the declaration of Barbara

Schuster, Associate Director of the Veterans Health Administration Access andClinical Administration Program, that “VHA was aware of ‘pockets’ of

scheduling issues occurring sporadically throughout the nation[.]” (AF, Tab 71,

Schuster Declaration, p. 50). I find it more likely than not that at least some

senior agency leaders were aware, or should have been, of nationwide problems

getting veterans scheduled for timely appointments at or around the times of the

events described in this specification, and that the agency’s Phoenix facilities, as

a part of the nationwide system, also had those problems. (AF, Tab 70, Petzel

Affidavit, p. 74; Bowers Declaration, pp. 76-80). Nevertheless, the implied

assertion that senior leaders were unaware of that problem and would have

provided help had they only known is not something the agency needs to prove in

order to sustain this specification. It is a description of surrounding

circumstances, accurate or not, for the appellant’s alleged failure to notify, which

is the misconduct at issue. See Larry v. Department of Justice, 76 M.S.P.R. 348,

355 (1997); Lawton v. Department of Veterans Affairs, 53 M.S.P.R. 153, 156

(1992).

In reviewing the evidence for this specification, I am mindful that the

appellant does not need to disprove the charges against her. Cf. Jackson v.

Veterans Administration, 768 F.2d 1325, 1329 (Fed. Cir. 1985) (“the agency [is]

in the position of a plaintiff bearing the burden of first coming forward with

evidence to establish the fact of misconduct, the burden of proof, and the ultimate

burden of persuasion, with respect to the basis for the charge or charges. The

employee (while denominated appellant) has the advantageous evidentiary

informed them of the October 2012 2,501 patient backlog does not redound to theagency’s advantage.




19

position of a defendant with respect to that aspect of the case”). This

specification sets forth two particular actions the appellant is alleged not to have

done with regard to a particular set of circumstances and refers the reader to the

Final OIG Report detailing those circumstances. An agency may rely on a failureto deny specific, detailed charges as part of its proof. See Berkner v. Department

of Commerce, 116 M.S.P.R. 277, 279, 285 (2011) (an appellant’s failure to deny

specific allegations was considered in determining whether an agency had met its

burden); Bixby v. U.S. Dept. of Agriculture, 24 M.S.P.R. 13, 19 & n.4 (1984)

(same); Duncan v. U.S. Dept. of Educ., 15 M.S.P.R. 31, 32 n.2 (1983) (same). A

failure to deny detailed charges is not, however, sufficient by itself. Delancy v.

U.S. Postal Service, 88 M.S.P.R. 129, 133 (2001) (“where the letter of charges is

not merely conclusory, but sets forth in great factual detail the employee’s errors

and deficiencies, and where the notice is corroborated by other evidence , the

letter of charge may be considered as forming part of the agency’s valid proof”)

(emphasis original).

In none of her own statements, or those of her attorneys made on her

behalf, at any point after she received the agency’s PAM, or even the first,

rescinded proposed removal, does the appellant assert that she did alert someone

above her about the 2,501 veteran backlog for primary care appointments

revealed in October 2012. (AF, Tab 1, Appellant’s Response to PAM; Tab 40,

Ex. ww, Appellant’s Response to Proposed Removal; Tab 70, Appellant’s Merits

Brief; Tab 72, Appellant’s Response Brief). Although she submitted a

declaration from her immediate superior, Susan Bowers, in which Bowers attests

that she “regularly worked with and had many conversations with Ms. Helman

about what and how VISN 18 officials would assist PVAHCS to improve the

scheduling process, and thus decrease the backlog of veteran clients waiting for

appointments[,]” at no point does Bowers aver that the appellant ever raised the

issue of the October 2012 2,501 veteran backlog with her. (AF, Tab 71,

Appellant’s Merits Brief, Bowers Decl. p. 76).




20

The question then becomes, what other proof has the agency offered to

establish the appellant did not notify “senior leadership” about this backlog. See

Delancy, 88 M.S.P.R. at 133. Based on how the agency framed this specification,

it must prove a negative, that senior leadership was not notified about thisOctober 2012 backlog by the appellant. Absent an admission by the appellant,

which she has not offered, to prove the lack of notification, the agency would

have to adduce affidavits from whatever real persons comprised “senior

leadership” at the time saying, “She did not notify me about that.” It has not

done so. I conclude that a detailed proposal which is not specifically denied is,

without more, too slender a reed to constitute preponderant evidence. See

Delancy, 88 M.S.P.R. at 133. This specification is not sustained.

The penultimate specification for this charge, Specification C, alleges:

On or around June 6, 2012, Dr. Katherine Mitchell, then Directorof the PVAHCS Emergency Department, sent a report of contactto Catherine Gibson, Nurse Manager for the EmergencyDepartment. In this report of contact, Dr. Mitchell disclosed thatcertain nurses in the Emergency Department lacked triage skillsand were being insubordinate. On or around December 3, 2012,Dr. Mitchell was reassigned as Director of the Emergency

Department to a position as Director of the Post-DeploymentClinic. Dr. Mitchell’s reassignment was directed by Dr. JamesFelicetta, PVAHCS’ Chief of Medicine, who reported to Dr.Darren Deering, PVAHCS’ Chief of Staff. Dr. Deering was yourdirect subordinate. You knew or should have known that Dr.Mitchell’s reassignment could be perceived as retaliation for herdisclosures. You should have intervened in Dr. Felicetta’sdecision to reassign Dr. Mitchell.

(AF, Tab 1, PAM, p. 10).

To start, although this specification refers to a disclosure made by Dr.

Mitchell on or about June 6, 2012 to ED Nurse Manager Gibson, in its merits

brief, the agency does not even mention this disclosure but instead relies on a

disclosure made by Dr. Mitchell directly to the appellant in February 2012. (AF,

Tab 1, PAM, pp. 9-11; Tab 71, Agency’s Merits Brief, pp. 15-19). That




21

purported disclosure is nowhere referred to in the PAM, even in passing. (AF,

Tab 1, PAM, pp. 9-12). The agency cannot charge the appellant knew or should

have known that failing to stop the reassignment of Dr. Mitchell could have been

perceived as retaliation because of one set of events, those which flow from Dr.Mitchell’s June 6, 2012 report of contact to Gibson, and then attempt to prove

now she should have known that because of an entirely different set of uncharged

events. See LaChance, 147 F.3d at 1372 (“The principle underlying [King v.]

Nazelrod [43 F.3d 663 (Fed. Cir. 1994)] is that the agency must prove what it

charges; where the specification contains the only meaningful description of the

charge, Nazelrod supports the Board’s conclusion that the agency must prove

what it has alleged in the specification”) (emphasis added); Alvarado v.

Department of Air Force , 103 M.S.P.R. 1, 7 (2006) (“we are bound to decide this

case according to how the charge is written, not how it could or should have been

written”). Having identified no evidence in its merits or rebuttal briefs about the

June 6, 2012 disclosure and what the appellant should have known about that, this

specification is not sustained.

Finally, Specification D of Charge 1 alleges:

Between May 2011 and April 2012, PVAHCS Public AffairsSpecialist Paula Pedene cooperated with an administrativeinvestigation concerning PVAHCS leadership and made numerousdisclosures to PVAHCS leadership about staffing and resourcesand experiencing a hostile work environment. Ms. Pedene alsomade a disclosure to Veterans Integrated Service Network 18about PVAHCS leadership failing to restore certain public affairsfunctions. On or about December 10, 2012, PVAHCS’ AssociateDirector Lance Robinson, your direct subordinate, reassigned Ms.Pedene to the Education Service pending an investigation into an

alleged computer security breach. Numerous other PVAHCSemployees who may have committed computer security breacheswere not reassigned.

You knew or should have known that Ms. Pedene had madedisclosures to PVAHCS leadership. You knew or should haveknown that Ms. Pedene’s reassignment could be perceived as




22

retaliation for her disclosures. You should have intervened in Mr.Robinson's decision to reassign Ms. Pedene.

(AF, Tab 1, PAM, p. 10).

In support of this specification, the agency begins with a May 10, 2011

memorandum from Pedene to the Medical Center Director in Phoenix at the time,

and the Associate Director, as well. (AF, Tab 9, Pedene Public Affairs

Memorandum, Subtab 21, pp. 25-28). Its subject was “Public Affairs

Recommendations.” ( Id.) In it, Pedene requested realignment of the reporting

structure in Phoenix so that the Public Affairs Officer reported directly to the

Medical Center Director. ( Id .) She also requests restoration of $50,000.00 for

production of an agency television show, “To Your Health,” restoration of

“contractual support” for “PR writers” and replacement of a position in Public

Affairs with an Audio Visual Production Specialist. ( Id .) Pedene posits that

“[t]he funding for the PR writer function will assist with news releases, fact

sheets, media advisories and the like which have all declined without the

contractual support.” (Id.) She also asks that the Public Affairs Officer be

empowered to “‘Take action to raise the public’s awareness of VHA’s willingness

to accept gifts and the productive use of GPF gifts’; and, ‘Communicate VHA giftneeds to potential donors’ for Parade and Community Outreach in accordance

with VHA Directive 4721.” ( Id.) She asserts that this authority would “allow

the PAO to make the community aware of parade and community outreach needs

that extend beyond the facilities current budget allocations.” ( Id.) Pedene also

requested restoration of “support of the VA Veterans Day Parade Committee and

activities surrounding this VA Regional Event[.]” ( Id.) Pedene then lists several

other suggested changes and empowerments for the public affairs function. ( Id.)She concludes the substance of the memorandum by noting “[e]very item listed in

this memo had been in place and has been systematically removed during the past

two years[,]” and that, “Public Relations should be granted at least 1/10th

of 1%




23

of the company's overall operating budget for a standard program. For us that

means $460,000. The current PR budget is $258,000 including salaries.” ( Id.)

The agency, however, has mischaracterized this memorandum. The agency

states “On May 10, 2011, Paula Pedene, the Public Affairs Officer for PVAHCS,submitted a memorandum to Appellant through PVAHCS’s Associate Director

Lance Robinson requesting, among other things, a restructuring of PVACHS’s

public affairs strategy and additional funding.” (AF, Tab 71, Agency’s Merits

Brief, p. 19). By the agency’s own admission, the appellant did not start her

employment at the PVAHCS until February 26, 2012. (AF, Tab 71, Agency’s

Merits Brief, p. 4) (“Appellant was employed as the Director of the Phoenix VA

Health Care System (PVAHCS) from February 26, 2012 to November 24, 2014”

citing “Tab 18, SF-50s, pp. 23 & 33”). The agency does not explain why this

memorandum would have been sent to the appellant approximately nine months

before she began to work there, and I find it more likely than not that it was not.

Moreover, although it is not completely clear when Robinson’s tenure as an

Assistant Director in Phoenix began, for reasons discussed below I find it more

likely than not it was after this May 10, 2011 memorandum was written.

Before writing this memorandum, on May 5, 2011, Pedene was interviewed

by members of an agency Administrative Investigation Board looking in to

matters involving “fee basis, sexual harassment, and hostile work environment at

the VA Medical Center in Phoenix, Arizona.” (AF, Tab 11, Pedene Interview

Transcript, Subtab 26, p. 5). She had previously provided some documentation to

this board. ( Id.) Pedene’s interview centered on actions taken over the previous

two years by the director who preceded the appellant in Phoenix, Perez, and an

Assistant Director, a Dr. Bacorn, who directly supervised Pedene. ( Id ., pp. 3-

60).

Next, the agency points to a memorandum dated July 8, 2011, from Pedene

to the VISN 18 Director, to be routed through the Phoenix Medical Center

Director. The agency avers, “On July 8, 2011, in a message sent through




24

Appellant to the Network Director for Veterans Integrated Service Network

(VISN) 18, Ms. Pedene noted that she was facing a hostile work environment

because of PVAHCS’s Associate Director Robinson, a direct subordinate of

Appellant, when the Associate Director tried to divest Ms. Pedene of theresponsibi lity of coordinating the annual Veterans Day Parade.” (AF, Tab 71,

Agency’s Merits Brief, p. 19). This, as with the May 10, 2011 memorandum, is

simply a misrepresentation of the facts of this case.6 The appellant did not begin

her tenure as the Medical Center Director in Phoenix until February 26, 2012. As

such, I find the memorandum was not routed through the appellant as she had not

yet begun her employment in Phoenix. Furthermore, the memorandum never

mentions Robinson at all. (AF, Tab 9, Pedene Hostile Environment

Memorandum, Subtab 20, pp. 22-24). It alleges that Dr. Bacorn was perpetuating

a hostile environment. The very first sentence reads, “I am writing to inform you

that it appears as if the hostile work environment, initiated under Gabriel Perez,

is still present at the PVAHCS, under the auspices of the actions being conducted

by the Associate Director (AD) Dr. Bacorn.” ( Id., p. 22).

The agency has also mischaracterized another memorandum from Pedene.

It relies on a November 25, 2011 memorandum addressed to “VISN 18 Network

Director” titled “Request for action regarding restoration request.” (AF, Tab 9,

Subtab 22, Pedene Action Request Memorandum, p. 30). The agency states “As

of November 25, 2011, Ms. Pedene continued to face a hostile work environment.

This time, she by-passed Appellant and went directly to Appellant’s supervisor

Susan Bowers with her complaints.” (AF, Tab 71, Agency’s Merits Brief, p. 19).

6 It is unclear which of the agency attorneys who have entered their appearance in this

case actually authored these passages. Pedene’s memoranda are addressed to positiontitles, not actual persons, and the agency may have lost sight of who was where when.While they do not help defend against the appellant’s argument that the agency isengaged in a win-at-all-costs railroading campaign, I assume these misrepresentationswere inadvertent.




25

Again, however, at the time of this memorandum, if the appellant had not yet

arrived in Phoenix, Pedene could not have been bypassing her.7

Another piece of documentary evidence the agency stands on in support of

this specification, although not “a few weeks after Ms. Pedene’s lastmemorandum to the VISN Director” as the agency advances, does at least

postdate the start of the appellant’s employment in Phoenix. On December 10,

2012, Robinson issued a memorandum to Pedene which advised her she was

“being temporarily administratively reassigned for an initial period of thirty (30)

days” because a “complaint was filed against [her] for possible misconduct. The

misconduct alleged is of a very serious nature and during the investigation [sic]

would be inappropriate for [her] to retain access to [her] current confidential files

or [sic] in contact with individuals who may be later identified as negatively

affected by [her] actions.” (AF, Tab 9, Subtab 23, Robinson Reassignment

Memorandum, p. 33.)

The allegations against Pedene were that she had committed a “computer

security violation when Ms. Pedene (who is legally blind) allowed her husband,

an official VA volunteer, to access her computer to transfer pictures he took of

the Phoenix VA (sic) Parade, into a PowerPoint presentation.” (AF, Tab 11,

Subtab 27, Pedene ROI, p. 66). After Pedene had apparently filed a

whistleblower’s complaint with the Office of Special Counsel, the agency

conducted an internal investigation in to Pedene’s activities and the appellant’s

and Robinson’s responses to them. (AF, Tab 11, Subtab 27, Pedene ROI, p. 64.)

The report generated from that investigation concluded, in pertinent parts, as

follows:

For purposes of this review, it is accepted that Ms. Pedene’sactions as identified herein constitute protected whistleblowing

7 In this memorandum, Pedene takes issue with certain actions and inactions of “Interim

Director, Dr. Jamie Robbins,” and an unidentified Associate Director and “Asst.Director.” (IAF, Tab 9, Subtab 22, Pedene Action Request Memorandum, pp.30-31).




26

activity. Even though the initial protected disclosure occurred inMay 2011 prior to the arrival of Ms. Helman and Mr. Robinson, both of them were aware of Ms. Pedene’s prior whistlebloweractivity and her continued efforts to restore staffing and budgetreductions she attributed to that activity. [***]

( Id., p. 81).

The allegation that Ms. Pedene’s whistleblowing activity was acontributing factor to her detail in Education Service is sustained. Numerous employees alleged to have been involved in similarcomputer or privacy violations were not detailed to other positions. Additionally, neither the original detail nor subsequentextensions were properly documented in accordance with VA policy. [***] Although Ms. Pedene clearly violated VA ITsecurity policy and corrective action was warranted, as confirmed

by OGC and VACO HR, her violations do not establish clear andconvincing evidence that Ms. Pedene would have been treated inthe same manner in the absence of whistleblowing. Lastly, itmust be noted that Ms. Pedene inadvertently committed an earlier privacy violation in January 2012 for which she received noadverse personnel action. This "no action" arguably militatesagainst a retaliatory motive, but does not sufficiently overcomethe obvious disparate treatment Ms. Pedene received followingthe computer incident in December 2012.

( Id., p. 82).

The appellant’s attack on the agency’s case for this specification is both

legal and factual. The appellant argues first that failing to stop a reassignment

which “could be perceived as retaliation,” as the specification states, is not

actionable misconduct because the standard is too amorphous, in that, any action

“could look objectionable to someone, somewhere, at some time,” the standard

departs from related precedent, the agency has not previously held managers to

such a standard and, if the appellant had stopped the reassignment because it

could be perceived as retaliation for whistleblowing, she would have directly run

afoul of the Whistleblower Protection Act because she would have failed to take a

personnel action because of a protected disclosure. (AF, Tab 70, Appellant’s

Merits Brief, pp. 44-46).




27

While it has some surface appeal, the short answer to the first objection is

that I am not in the business of running the agency or deciding what standards of

conduct it ought to set for its senior managers in managing its institutions; the

agency is free to bind their hands with Gordian knots if it chooses. Cf. AmericanFederation of Government Employees, Local 2017 v. Brown, 680 F.2d 722, 726

(11th Cir. 1982); Jackson v. Department of Veterans Affairs, 97 M.S.P.R. 13, 18-

19 (2004). The particular language of the statute at issue, Section 713(a)(1) of

title 38, authorizes a removal “if the Secretary determines the performance or

misconduct of the individual warrants” it. This section gives very broad authority

to the Secretary of Veterans Affairs in determining what constitutes misconduct

for an employee in the Senior Executive Service at that agency.

As to departing from precedent, in the cases the appellant cites, the

employees were charged by the Office of Special Counsel with actually violating

the Whistleblower Protection Act (WPA) or another provision of law. Costello v.

Merit Systems Protection Bd., 182 F.3d 1372, 1375 (Fed. Cir. 1999) (“the Office

of Special Counsel filed complaints with the Board against Costello and Strehle,

seeking disciplinary actions (under 5 U.S.C. § 1215) against them for alleged

violations of the Whistleblower Protection Act”); Special Counsel ex rel. Perfetto

v. Dep't of Navy, 85 M.S.P.R. 454, 458-59 (2000) (“In a stay request, OSC need

not prove, as part of a prima facie case, that the protected activity was a

significant factor in the agency’s termination decision. Rather, that is part of its

burden of proof on the merits”); Special Counsel v. Nielson, 71 M.S.P.R. 161,

177 (1996) (“The respondent was charged with violating 5 U.S.C. §

2302(b)(9)(A) and (C)”). I am aware of no precedent which would require the

agency to charge the appellant with actually violating a law, even if it believed

she had done so, and the appellant does not cite any. An agency may draft

misconduct charges in the manner it thinks best. Having drafted a charge which

states the appellant “knew or should have known that Ms. Pedene’s reassignment

could be perceived as retaliation for her disclosures[,]” the agency does not need




28

to prove the appellant actually violated the provisions of the WPA, only that

circumstances were such that a perception of retaliation could arise. That does

require reference to the WPA’s standards, but not actual proof of violation.

The issue of not having previously charged a senior manager with such anoffense speaks to the propriety of the penalty, not the viability of the charge

itself. See Lewis v. Department of Veterans Affairs, 113 M.S.P.R. 657, 664

(2010) (lack of notice of a change in policy is a factor in penalty determinations).

Finally, I conclude the appellant misconstrues the WPA. While her

interpretation may follow from a literal reading of the act, interpreting it in the

manner she suggests would lead to absurd results, and I decline to do so. See

Wassenaar v. Office of Personnel Management , 21 F.3d 1090, 1092 (Fed. Cir.

1994). The act is meant to protect whistleblowers from harm. See Schmittling v.

Department of Army, 92 M.S.P.R. 572, 579 (2002) (“the ‘purpose’ language of

the WPA suggests that Congress sought to broadly protect whistleblowers from

‘adverse consequences’ as a result of prohibited personnel practices, whether

those ‘adverse consequences’ result from personnel actions that are taken or

personnel actions that are not taken”). In the context of this scenario, leaving

Pedene in her position would not have been an infliction of harm on her. The

WPA does not shield the appellant as she argues.

With her factual challenge, the appellant contends the report of

investigation is unreliable and points out that she, Robinson and OIG Special

Agent Richard Cady were not interviewed for the report. (AF, Tab 11, Subtab 27,

Pedene ROI, p. 66) (listing persons interviewed). Moreover, none of the persons

interviewed, save Pedene, an interested party, were under oath and, the agency

has proffered no explanation for why that is. ( Id.) See Borninkhof v. Department

of Justice, 5 M.S.P.R. 77, 87 (1981) (in weighing the probative value of hearsay,

considerations include whether the out of court statements were made under oath,

and if not, why not, and whether they were made by persons disinterested in the

events). Additionally, the witness statements and exhibits the report refers to




29

were not appended to the report, (AF, Tab 11, Subtab 27, Pedene ROI, p. 64-84),

and I cannot look past even the first level of hearsay to evaluate that same

evidence now. These proceedings are de novo, the agency must prove its case by

preponderant evidence and I cannot simply assume the accuracy of the report inlight of the evidence the appellant has adduced about it.

The supplemental declarations from Mary Monet and Laurie Butler the

agency introduced in support of this charge do not help and actually undermine

its position somewhat. The reports generated by Monet are not actually appended

to her declaration, although there is an electronic place holder for them. (AF,

Tab 71, Agency’s Merits Brief, Monet Decl., pp. 62-63). In Butler’s declaration

she avers she directed her staff to search a PVAHCS database which tracks all

disciplinary and adverse actions taken there. (AF, Tab 71, Agency’s Merits

Brief, Butler Decl., p. 60). “The search included the terms private, privacy,

HIPAA, violation, access, disclosure, disclose, disclosed, reassign, reassignment,

and reassigned.” ( Id.) That “search resulted in 24 cases from January 2012 to

August 22, 2014 where an employee was charged with a privacy access and/or

disclosure violation. This involves the case of Dr. Katherine Mitchell.” ( Id.).

Butler also directed her staff to “pull all available disciplinary files (paper copy)

for the 24 actions that were identified.” ( Id. p. 61). They “could locate only 21 of

the 23 files.”8 ( Id.). She further avers “In none of the 21 instances of privacy

access/disclosure violations that I reviewed, other than in the case of Dr.

Katherine Mitchell, was the offending employee placed on administrative absence

or reassigned.” ( Id.). If the agency really did mean these declarations support its

case regarding the reassignment of Pedene, records relating to her reassignment

were not there, which casts some doubt on the accuracy of those records. The

agency apparently relied on those records, or some such records, for its finding

8 I take the change of 24 to 23 to be a typographical error.




30

that “[n]umerous employees alleged to have been involved in similar computer or

privacy violations were not detailed to other positions.”

The appellant introduced an affidavit and declaration from Robinson

wherein he avers Cady asked him to temporarily reassign Pedene while the OIGinvestigated allegations of financial impropriety by her.9 (AF, Tab 70, Ex. 4,

Robinson Aff., p. 86; Ex. 4a, Robinson Decl., p. 89). Attempting to blunt this

last point, the agency introduced a declaration from Cady where he states, “In

January 2013, my office looked into an investigative referral regarding Ms. Paula

Pedene at the Phoenix VA Health Care System (PVAHCS). I never directed

PVAHCS Associate Director Lance Robinson to reassign Ms. Pedene to another

position.” (AF, Tab 71, Agency’s Merits Brief, Cady Decl., p. 42). I find it more

likely than not both statements are true.10

Cady did not direct Robinson to

reassign Pedene, because as an investigating agent he likely had no authority to

direct the taking of a personnel action, and he did request that Robinson reassign

her so that, if there actually was wrongdoing to be uncovered, Pedene would not

be in a position to cover her tracks as easily or otherwise interfere with the

investigation.

To make out a prima facie case of whistleblower retaliation before the

Board, one must allege: (1) he or she engaged in whistleblowing activity by

making a protected disclosure, and (2) the disclosure was a contributing factor in

the agency’s decision to take or fail to take a personnel action. Ormond v.

Department of Justice, 118 M.S.P.R. 337, 339 (2012) (citing Yunus v. Department

9

The report sets out the appellant’s involvement in the misuse of funds allegation andwhy her actions in that regard appeared retaliatory, but the agency did not charge herwith anything related to that, only the reassignment by Robinson.

10 The agency argues that “Appellant has claimed that OIG Agent Cady advised that

Robinson reassign Pedene. Agent Cady specifically denies this. (Decl. of Agent Cady, ¶3.)” (IAF, Tab 71, Agency’s Merits Brief, p. 20 n.11). Again, that is simply not whatCady says in the declaration.




31

of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001)). A protected

disclosure is a disclosure that a person reasonably believes evidences a violation

of any law, rule, or regulation, 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)(A). I conclude that Pedene’s statements to the

Administrative Investigation Board or the appellant herself could be construed as

disclosing an abuse of authority. However, if an agency can prove, by clear and

convincing evidence it would have taken the same actions in the absence of the

protected disclosure, no unlawful retaliation has occurred. See Whitmore v.

Department of Labor , 680 F.3d 1353, 1367 (Fed. Cir. 2012).

Putting aside for now the Miller issue discussed with Specification A,

supra, in considering all the evidence identified by the parties for this

specification, I conclude the agency has not demonstrated, by preponderant

evidence, the appellant “knew or should have known that Ms. Pedene’s

reassignment could be perceived as retaliation for her disclosures.”

The evidence the agency introduced is marginally probative at best. The

report generated from the internal investigation does not pass muster under

Borninkhof and cannot carry the day for the agency by itself. Even if it did carry

significant probative value, one of the things it points out is that Pedene was

observed violating agency computer security policies, apparently for a second

time. See Russell v. Department of Justice, 76 M.S.P.R. 317, 325 (1997) (“An

employee is not completely shielded from his misconduct by anti-discrimination

laws or the WPA. Rather, those laws shield an employee only to the extent the

record supports a finding that he would not have been disciplined except for his

status as a whistleblower or a member of a protected class”). The OIG’s

involvement in Pedene’s reassignment is not mentioned in the report the agency

heavily relies on. Moreover, something not addressed in the report is that before

Robinson reassigned Pedene, he consulted with the PVAHCS Human Resources

Officer, Maria Schloendorn, who counseled that Pedene should be reassigned




32

while the Office of Inspector General conducted its investigation. (AF, Tab 70,

Ex. 6, Agency’s Response to Appellant’s Request for Admission 70). There is no

contention by the agency that Cady or Schloendorn had any reason to know about

Pedene’s disclosures or that Robinson was prone to ignoring Schloendorn’sadvice. When the agency’s evidence is weighed against the facts that an OIG

agent specifically requested Ms. Pedene’s reassignment, and that Robbins asked

his Human Resources Officer what he should do about that request and she

advised he should reassign, I conclude Robinson would have taken the same

action, Pedene’s disclosures notwithstanding. The agency has not met its burden

on this specification, and the charge as a whole is not sustained.

With its second charge, Charge 2 is labeled “Conduct Unbecoming a Senior

Executive,” and has two specifications. (Tab 1, PAM, p. 10.) This is also a

generic charge with no specific elements of proof. It is established by proving

that the appellant committed the acts alleged in support of the broad label. See

LaChance, 147 F.3d at 1371; Canada v. Department of Homeland Security, 113

M.S.P.R. 509, 513 (2010).

Charge 2, Specification A reads as follows:

On September 20, 2013, you placed Dr. Mitchell onadministrative absence pending investigation into an allegationthat she violated patient privacy by providing Senator McCainwith a list of patients who had committed suicide. BetweenJanuary 2, 2012 and August 22, 2014, PVAHCS investigatednumerous data breaches. There is no evidence any of the subjectsof these investigations were placed on administrative absence.You knew or should have known that Dr. Mitchell made adisclosure to Senator McCain. You knew or should have knownthat placing Dr. Mitchell on administrative absence could be

perceived as retaliation for her disclosures.(AF, Tab 1, PAM, p. 10.)

In its merits brief, the agency argues that the appellant “either engaged in

retaliation or in conduct that could be perceived as retaliation.” (AF, Tab 71,

Agency Merits Brief, p. 22). I will not address whether the conduct alleged in




33

this specification constituted actual retaliation because the agency charged the

appellant only with engaging in conduct that she knew or should have known

“could be perceived as retaliation.” (AF, Tab 1, PAM, p. 10). It is immaterial

whether the appellant’s actions were actually retaliatory because the agency didnot charge her with actual retaliation. See LaChance, 147 F.3d at 1372. Rather,

it charged her with creating the possible perception of retaliation. The agency

cannot rewrite the specification at this stage of the proceedings to include

allegations that it could have included in the charging document but did not. See

Minor , 115 M.S.P.R. at 311.

As for the proof of what was actually charged, I find that the agency has

met its burden, and the underlying facts do not appear to be in real dispute. The

agency submitted a copy of the documents that Dr. Mitchell sent to Senator

McCain’s office, which show that, on August 20, 2013, Dr. Mitchell disclosed the

first names and last initials of four Phoenix VAHCS patients who had committed

suicide. (AF, Tab 9, pp. 18-19). The record also shows that, on September 20,

2013, the appellant executed a memorandum notifying Dr. Mitchell that she

would be placed on administrative leave effective immediately. (AF, Tab 7, p.

64). A December 19, 2013 memorandum of counseling signed by Dr. Mitchell’s

immediate supervisor confirms that her disclosure to Senator McCain was the

reason for her placement on administrative leave. ( Id . p. 66). The appellant’s

and Dr. Mitchell’s declarations corroborate these events and the appellant’s

personal awareness of them. (AF, Tab 70, Appellant’s Decl., pp. 71-73, Tab 71,

Mitchell Decl., p. 65).

I also find that the agency has proven that the appellant knew or should

have known that placing Dr. Mitchell on administrative absence could be

perceived as retaliation for her disclosures. (AF, Tab 1, PAM, p. 10). Dr.

Mitchell’s disclosures appear calculated to address what she reasonably believed

was a substantial and specific danger to public health and safety, i.e., the

inadequacy of the Phoenix VAHCS’s suicide prevention efforts, which in Dr.




34

Mitchell’s opinion, contributed to the deaths of the patients named in the

disclosure. (AF, Tab 9, pp. 18-19). See 5 U.S.C. § 2302(b)(8)(A); Parikh v.

Department of Veterans Affairs, 116 M.S.P.R. 197, 206-207 (2011) (the appellant

made a non-frivolous allegation that substandard care at a VeteransAdministration hospital presented a substantial and specific danger to public

health and safety because such substandard care could lead to patient deaths). In

addition, the appellant herself admits that Dr. Mitchell’s disclosures were the

reason that she placed Dr. Mitchell on administrative leave, thus establishing a

connection between Dr. Mitchell’s disclosures and the administrative leave. (AF,

Tab 70, Appellant’s Decl. pp. 71-73). I find that these facts would be sufficient

for Dr. Mitchell to establish a prima facie case under the WPA, as amended, with

the appellant as the retaliating official. See Yunus, 242 F.3d at 1371. Because

Dr. Mitchell’s disclosure is the very reason for placing her on administrative

leave, there is no way establish the same action would have been taken in the

absence of the disclosure. Thus, I find that the agency has established that the

appellant’s act of placing Dr. Mitchell on administrative leave could be perceived

as retaliatory.

Although the appellant does not dispute the facts, she argues that Charge 2,

Specification A fails to make out a case of actionable misconduct. (AF, Tab 70,

Appellant’s Merits Brief, pp. 48-50, Tab 72, Appellant’s Reply Brief, pp. 17-19).

Specifically, she argues that she relied on the advice of her immediate supervisor,

the Phoenix VA Chief of Human Resources, and two different agency attorneys in

determining that Dr. Mitchell should be placed on paid administrative leave

pending an investigation into whether the disclosure violated patient privacy.

(AF, Tab 70, Appellant’s Merits Brief, pp. 48-50, Appellant’s Decl., p. 72; Tab

72, Appellant’s Reply Brief, pp. 17-19). Again, as discussed above, the agency

may set its standards of conduct for its senior managers in the manner it thinks

best. She further argues that no one raised concerns of retaliation at the time, and

that no other employee had been placed on administrative leave for a suspected




35

privacy violation during her tenure because none of those other employees had

released information outside the agency. (AF, Tab 70, Appellant’s Merits Brief,

p. 50; Appellant’s Decl., pp. 71-72; Tab 72, Appellant’s Reply Brief, pp. 49-50).

This evidence and argument appears to be geared toward showing that theappellant’s actions were not, in fact, retaliatory, which as explained above is

beside the point. The agency did not charge the appellant with actual retaliation,

but with taking actions that “could be perceived as retaliatory for [Dr. Mitchells’]

disclosures.” (AF, Tab 1, PAM, p. 10.) The agency has carried it burden on this

issue.

The appellant’s argument is akin to an argument that an appellant might

make in an appeal under 5 U.S.C. Chapter 75 that a proven charge bears no nexus

to the efficiency of the service. See 5 U.S.C. § 7513 (an agency may take an

action covered by this subchapter against an employee only for such cause as will

promote the efficiency of the service); see, e.g., Jordan v. Department of the Air

Force, 36 M.S.P.R. 409, 411 (1988) (although the agency proved its charge of

selling black market motor vehicles off duty, the Board reversed the removal

because the agency failed to establish a nexus between the conduct and the

efficiency of the service). However, this appeal does not arise under 5 U.S.C.

chapter 75; it arises under 38 U.S.C. § 713. Thus, a question is raised: Is there a

nexus requirement for disciplinary actions under that section?

The statute provides, in pertinent part, that “[t]he Secretary may remove an

individual employed in a senior executive position at the Department of Veterans

Affairs from the senior executive position if the Secretary determines the

performance or misconduct of the individual warrants such removal.” 38 U.S.C.

§ 713(a)(1). I find that the plain language of the statute does not contain a

specific nexus requirement as is found in 5 U.S.C. § 7513(a), but it does predicate

the Secretary’s removal authority on the existence of actual misconduct. Cf.

Social Security Administration v. Long, 113 M.S.P.R. 190, ¶ 46 (2010) (the “good




36

cause” standard to remove and administrative judge under 5 U.S.C. § 7521 does

not contain a separate nexus requirement).

As for whether creating the possible perception of reprisal constitutes

actual misconduct, if this were an appeal under Chapter 75, I would be inclined toagree with the appellant that it does not. Any personnel action taken against an

employee who arguably made a protected disclosure, by a manager who arguably

knew about the disclosure, raises an inference of retaliation. See Mudd v.

Department of Veterans Affairs, 120 M.S.P.R. 365, 370-71 (2013). Nevertheless,

employees who have previously blown the whistle are not immune from

performance and conduct deficiencies; nor are they immune from budgetary and

organizational considerations that affect the agency at large, and agency

managers may be required to take action against such employees for legitimate,

nonretaliatory reasons. See 5 U.S.C. § 1221(e)(2); Morgan v. Department of

Energy, 424 F.3d 1271, 1273 (Fed. Cir. 2005) (the Board cannot not order

corrective action in a whistleblower reprisal case if the agency can prove, by

clear and convincing evidence, that it would have taken the personnel action at

issue notwithstanding the protected disclosure); Moeller v. Department of

Veterans Affairs, 62 M.S.P.R. 361, 366-67 (1994) (whistleblowing does not

shield an employee from discipline which is not motivated by retaliation for the

protected disclosure). Thus, in the ordinary case, the possible perception of

whistleblower reprisal, in the absence of something more, would likely not

constitute misconduct. However, as discussed above, the particular language of

the statute gives the Secretary broad discretion in determining what constitutes

misconduct for the agency’s SES. Charge 2, Specification A is therefore

sustained.11

11 Notwithstanding the above, I find that it is proper for me to consider the tenuous

nature of this misconduct, such as it is, in deciding whether the appellant has rebuttedthe reasonableness of the penalty imposed on her. As explained below, this charge,although proven, merits little weight in that regard.




37

Specification B of this charge alleges:

Charge 2, Specification B reads as follows:

You accepted the following gifts from Dennis "Max" Lewis, VicePresident. Jefferson Consulting Group, who you knew or should

have known was a consultant to a healthcare provider that wasseeking to conduct business with one or more PVAHCSCommunity-Based Outpatient Clinics (CBOCs) under yourmanagement:

a. Airline tickets at a cost of approximately $465.07 roundtripfrom Phoenix, Arizona to Vancouver, British Columbia for travelin May 2012;

b. Airline tickets at a cost of approximately $355.60 roundtripfrom Phoenix, Arizona to Portland, Oregon from [sic] travel in

October 2012;c. Admission price of approximately $121.80 for a Pink JeepTour in November 2012;

d. Entry fee of approximately $65 paid on November 27, 2012,for the Runners Den/Fiesta Bowl Half marathon and 5K onDecember 2, 2012;

e. Airline tickets at a cost of approximately $317.60 roundtripfrom Phoenix, Arizona to El Paso, Texas for travel in March2013;

f. Entry fee of approximately $70.25 paid on April 29, 2013 forthe Mississippi [Blues] Marathon;

g. Airline tickets at a cost of approximately $1,015.60 roundtripfrom Phoenix, Arizona to Eureka, California for travel in May2013;

h. Airline tickets at a cost of approximately $389.80 roundtripfrom Phoenix, Arizona to Portland, Oregon for travel in June2013;

i. Five tickets and parking for approximately $729.50 paid on

August 24, 2013 to The Mrs. Carter Show World Tour StarringBeyonce on December 7, 2013;

j. Entry fee of approximately $282.98 paid on or about December11, 2013 for the 2014 P.F. Chang’s Rock 'n' Roll ArizonaMarathon & Half Marathon on December 2, 2013;

k. A trip to Disneyland which cost in excess of $11,000; and




38

l. An entry fee of approximately $105 for you to participate inthe Napa Valley Marathon in 2015.

You knew or should have known that the acceptance of these giftscreates the appearance of a conflict of interest.

(AF, Tab 1, PAM pp. 10-11). For this specification, the agency must prove: (1)

whether the appellant accepted these gifts as alleged, and if so (2) whether she

knew or should have known that such acceptance created the appearance of a

conflict of interest.

For the reasons discussed below in connection with Charge 3, I find that

the agency established that the appellant accepted the following gifts from Lewis:

Item a., roundtrip airline tickets at a cost of approximately $465.07 between

Phoenix and Vancouver for travel in May of 2012; item b., roundtrip airline

tickets between Phoenix and Portland, Oregon at a cost of approximately $355.60

for travel in October 2012; item e., roundtrip airline tickets between Phoenix,

Arizona and El Paso, Texas at a cost of approximately $317.60 for travel in

March, 2013; item h., roundtrip airline tickets from Phoenix, Arizona to Portland,

Oregon at a cost of approximately 389.80 for travel in May, 2013; item i., five

tickets and parking for approximately $729.50 paid on August 24, 2013 to the

Mrs. Carter World Show Starring Beyoncé on December 7, 2013; and item j., an

entry fee of approximately $282.98 paid on or about December 11, 2013 for the

2014 P.F. Chang’s Rock ‘n’ Roll Arizona Marathon and Half Marathon on

December 2, 2013. Also for the reasons discussed below in connection with

Charge 3, I find that the agency failed to establish that the appellant accepted

item g., roundtrip airline tickets between Phoenix, Arizona and Eureka, California

at a cost of approximately $1,015.60 for travel in May, 2013.

Regarding item c., admission price of approximately $121.80 for a Pink

Jeep Tour in November, 2012, I find that the agency has failed to show that the

appellant accepted this as a gift from Lewis. The record contains a receipt

showing that, on November 9, 2012, Lewis booked a Pink Jeep tour for

November 14, 2012 at the cost of $243.59. (AF, Tab 11, pp. 304-05). The record




39

also contains a liability waiver and a trip manifest that appear to be related to this

booking. ( Id . pp. 305-06). The appellant’s name, however, appears nowhere in

any of these documents, and the agency has not explained how it tied this item to

the appellant or concluded that this was a gift for her. In fact, this alleged gift ismentioned nowhere in the agency’s merits brief or its rebuttal brief. In short, the

agency has not identified any evidence that the appellant accepted item c. from

Lewis as alleged in the specification.

I likewise find that the agency failed to prove that the appellant accepted as

a gift from Lewis item d., an entry fee of approximately $65 paid on November

27, 2012 for the Runners Den/Fiesta Bowl Half Marathon and 5K on December 2,

2012. This allegation is not mentioned in the agency’s merits brief or its rebuttal

brief. Nor has my review of the record uncovered any documentation related to

this allegation which would support it.

Regarding item f., an entry fee of approximately $70.25 paid on April 29,

2013 for the Mississippi Blues Marathon, I find that the agency has proven that

the appellant accepted this as a gift from Lewis. Specifically, the record contains

an April 29, 2013 registration confirmation for that marathon, indicating that the

appellant was the registrant and that Lewis paid the $70.25 entry fee (AF, Tab 11,

p. 329). Cady’s declaration confirms that the IG uncovered this document during

its investigation. (AF, Tab 71, Cady Decl. p. 44).

Regarding item k., a trip to Disneyland costing “in excess of $11,000,” I

find that the agency has proven that the appellant accepted this gift from Lewis as

well. The record contains a January 13, 2014 email from Lewis to the appellant

stating “Enjoy.” (AF, Tab 11, p. 238). Attached to the email is a reservation

confirmation for the appellant and what appear to be six of her family members

for an 8-night stay at Disneyland, plus several upgrades and amenities. ( Id., p.

239). The total amount of the reservation is blocked out on the attachment, but

the record contains an unredacted copy of it as well, showing the total amount to

be $11,205.28, and that payment in full had been made on January 13, 2014. (Id. ,




40

p. 243). The record also contains a document titled “Information on Payment,”

showing that Lewis engaged in a credit card transaction of exactly $11,205.28 on

that date. ( Id ., p. 154). Finally, the record contains a printout of a subpoenaed

Walt Disney computer record stating that a Disney employee “spoke w/DennisLewis who made this resv and paid for it . . . This is a secret gift to this family

and only Sharon knows the source but even she does not know the cost.” ( Id ., p.

184). These facts are confirmed by Cady’s declaration about the investigation.

(AF, Tab 71, Cady Decl., p. 46).

Regarding item l, an entry fee of approximately $105 for the appellant to

participate in the Napa Valley Marathon in 2015, I find that the agency has

proven that the appellant accepted this as a gift from Mr. Lewis. Specifically, the

record contains a March 28, 2014 registration confirmation for that marathon,

indicating that the appellant was the registrant and that Mr. Lewis paid the

$105.00 entry fee. (AF, Tab 11. p. 246). Cady’s declaration again confirms that

the OIG uncovered this document during its investigation. (AF, Tab 71, Cady

Decl., p. 46).

Having proven that the appellant accepted nine of the twelve alleged gifts

from Lewis, the agency must now prove, as it charged, that the appellant knew or

should have known that the acceptance of those gifts created the appearance of a

conflict of interest. See LaChance, 147 F.3d at 1371. For the following reasons, I

find that the agency has met its burden of proof.

First, I find that the appellant knew that Lewis was a Vice President at

Jefferson Consulting at the time that she accepted these gifts from him, and that

she knew that Jefferson Consulting was doing work for companies doing business

or seeking to do business directly with the agency. The record contains an

August 7, 2013 email from the President of Jefferson Consulting Group to the

appellant introducing a Humana employee for purposes of discussing “Humana’s

experience and ideas to provide a near term alternative solution to VHA’s need

for larger, community-based clinics with expanded capabilities,” and offering to




41

participate in the discussion as needed. (AF, Tab 12, p. 266). The record also

contains two business-related email exchanges between Lewis and the appellant,

with Mr. Lewis using his business address. In the first email exchange, dated

August 28, 2012, Lewis forwarded the appellant information pertaining to thecurrent contractor at a VISN 18 community-based outreach clinic and the

“challenges facing the clinic and its workload.” ( Id ., pp. 273-74). In the second

email exchange, dated August 21, 2013, Lewis and the appellant discussed

agency practices in meeting with potential vendors. ( Id . , pp. 277-78). Based on

the foregoing, I find it more likely than not that the appellant was aware of

Lewis’s position with Jefferson consulting, and that Jefferson Consulting was

involved in helping contractors to secure business with the agency. The

appellant, at least occasionally, had business-related discussions with Lewis, and

the appellant had personally worked with Jefferson Consulting in discussions

with potential contractors. I find it difficult to believe that she accepted over

$13,000 in gifts from Lewis over a two year period, as described above, without

knowing what he did for a living.

I also find that this acceptance of gifts from him created the appearance of

a conflict of interest. Although Jefferson Consulting does not appear to have

been doing business, or attempting to do business, directly with the agency, its

client companies were. In fact, it is Jefferson Consulting’s very business is to

assist its clients in securing favorable government contracts, particularly with the

Department of Veterans Affairs. (AF, Tab 12, pp. 279-80). Furthermore, I find,

based on documentary evidence pertaining to the appellant’s involvement in

contract negotiations and her approval of a contract request, that her official

duties as Director of the Phoenix VAHCS placed her at the opposite end of the

negotiating table from Jefferson Consulting Group and its clients. (AF, Tab 11

pp. 248-51, 260-62). I therefore find that the agency has proven that the

appellant’s interest in accepting the gifts from Lewis “reasonably create[s] an

appearance” of having an effect on her interests or duties in her role as Director




42

of the Phoenix VAHCS. See Lane v. Department of the Army, 19 M.S.P.R. 161,

162-63 (1984). Charge 2, Specification B is sustained.

The third charge against the appellant was “Failure to Report Gifts,” which

included two specifications. (AF, Tab 1, PAM, pp. 11-12). Once again, theagency used generalized charging language, so the specifications supporting the

charge determine what the agency must prove. LaChance, 147 F.3d at 1371.

Specification A involved the failure to report calendar year 2012 gifts. It

states:

On or around March 22, 2013, you signed an Office ofGovernment Ethics Form 278, Executive Branch Personnel PublicFinancial Disclosure Report in which you reported your financial

assets for calendar year 2012. Annual reporting is your obligationas a member of the Senior Executive Service. Under Schedule B,Part II: Gifts, Reimbursements and Travel Expenses, you markedthe box “None” in response to the following:

“For you, your spouse and dependent children, report the source,a brief description, and the value of: (1) gifts (such as tangibleitems, transportation, lodging, food, or entertainment) receivedfrom one source totaling more than $350, and (2) travel-relatedcash reimbursements received from one source totaling more than$350.”

You failed to report the following gifts which were given to you by Dennis “Max” Lewis, Vice President for Jefferson ConsultingGroup during calendar year 2012:

a. International airline tickets at a cost of approximately $465.07roundtrip from Phoenix, Arizona to Vancouver, British Columbiafor travel in or about May 2012; and

b. Airline tickets at a cost of approximately $355.60 roundtripfrom Phoenix, Arizona to Portland, Oregon from travel in orabout October 2012.

(AF, Tab 1, PAM, p. 11).

Thus, in order to prove Specification A, the agency must prove the

following elements: (1) that for calendar year 2012 the appellant signed Ethics

Form 278 on about March 22, 2013; (2) that the appellant marked “None” when

asked about 2012 transportation gifts in excess of $350 from a single source; and




43

(3) that in 2012 the appellant received from Lewis a May 2012 roundtrip airline

tickets from Phoenix to Vancouver, which cost approximately $465.07, as well as

October 2012 roundtrip airline tickets from Phoenix to Portland, which cost

approximately $355.60.First, the agency has proven that the appellant signed the required 2012

Ethics Form 278 on about March 22, 2013. (AF, Tab 11, p. 264). As with part of

Charge 2, the primary supporting evidence is provided by the sworn declaration

of Cady, the Resident Agent in Charge of a division of the OIG. (AF, Tab 71, p.

42).12

Cady obtained the appellant’s Form 278 from the agency’s Office of

General Counsel (AF, Tab 71, Cady Decl., pp. 46-47). Second, Cady’s

investigation confirmed that the appellant did, indeed, check “none” when asked

about 2012 transportation gifts in excess of $350 from a single source. (AF, Tab

11, page 266). Third, as explained in more detail below, and despite some

evidentiary issues, the agency has proven that Lewis gave the appellant the two

referenced 2012 roundtrip airline tickets.

With respect to the $465.07 roundtrip airline ticket between Phoenix and

Vancouver in May 2012, there are two pieces of evidence that seem probative.

The first is Lewis’s April 30, 2012 email in which he forwarded the United

Airlines e-ticket directly to the appellant. (AF, Tab 11, pp. 188-191). The second

is the OIG-subpoenaed United Airlines record that confirms the e-ticket was

purchased with Lewis’s credit card. (AF, Tab 11, pp. 335, 337). Both pieces of

evidence are confirmed by Cady’s investigation. (AF, Tab 71, Cady Decl. pp. 43-

44). Accordingly, I find the agency has proven the first unreported 2012 gift in

Specification A.

12 Starting in April 2014, Cady’s investigation included a review of subpoenaed records

from Southwest Airlines, United Airlines, Kaiser Permanente, and Live Nation (TicketMaster). (IAF, Tab 71, pp. 42-43). His investigation also included a review ofnumerous emails obtained from the agency’s email system. ( Id., p. 43).




44


Portland in October 2012, there is an evidentiary issue, but the agency has

nevertheless managed to overcome it. The evidentiary issue involves Cady’s

assertion that he reviewed an email from Lewis to the appellant indicating that onSeptember 15, 2012, the appellant was issued a United Airlines roundtrip e-ticket

between Phoenix and Portland for travel in October 2012. ((AF, Tab 71, Cady

Decl., pp. 44). Although he makes that assertion, Cady failed to provide any

record citation for that email. Moreover, in culling the record, I could find no

such email. Nevertheless, in paragraph 17 of Cady’s declaration, (AF, Tab 71, p.

44) he also relies on an OIG-subpoenaed record from United Airlines, which

indicates that on September 14, 2012, Lewis paid for two tickets, each worth

$355.60, that were issued to the appellant and Lewis. (AF, Tab 11, pp. 340-41).

Accordingly, I find the agency has also proven the second unreported 2012 Lewis

gift in Specification A. This specification is sustained.

Turning to Specification B, which involved the appellant’s failure to report

calendar year 2013 gifts, the agency alleged the following:

On or around March 22, 2014, you signed an Office of

Government Ethics Form 278, Executive Branch Personnel PublicFinancial Disclosure Report. Under Schedule B, Part II: Gifts,Reimbursements and Travel Expenses, you marked the box“None” in response to the following:


You failed to report receiving in-kind payment or reimbursementfor travel expenses totaling over $770.00, including a hotel roomfor one night, airfare, meals, a rental car and airport parking,resulting from a job interview with Kaiser Permanente in October2013.




45

You failed to report the following gifts purchased by Dennis“Max” Lewis, Vice President, Jefferson Consulting Group duringcalendar year 2013:

a. Airline tickets at a cost of approximately $317.60 roundtripfrom Phoenix, Arizona to El Paso, Texas for travel in or aboutMarch 2013;

b. Airline tickets at a cost of approximately $1,015.60 roundtripfrom Phoenix, Arizona to Eureka, California for travel in or aboutMay 2013;

c. Airline tickets at a cost of approximately $389.80 roundtripfrom Phoenix, Arizona to Portland, Oregon for travel in or aboutJune 2013;

d. Five tickets and parking for approximately $729.50 paid on orabout August 24, 2013 to The Mrs. Carter Show World TourStarring Beyoncé on or about December 7, 2013;and

e. Entry fee of approximately $282.98 paid on or about December11, 2013, for the 2014 P.F. Chang’s Rock ‘n’ Roll ArizonaMarathon & Half Marathon on or about December 2, 2013.

(AF, Tab 1, PAM, p. 12).

As before, the language of Specification B determines what the agency

must prove. LaChance, 147 F.3d at 1371. Thus, the agency must prove: (1) that

for calendar year 2013 the appellant signed Ethics Form 278 on about March 22,2014; (2) that the appellant marked “None” when asked about the receipt of 2013

gifts of transportation, lodging or food, as well as the receipt of 2013 travel-

related cash reimbursements; and (3) that in 2013 the appellant received from a

single source one or more of the listed items in excess of $350.

First, the agency has proven that the appellant signed the required 2013

Ethics Form 278 on about March 21, 2014. (AF, Tab 11, p. 270). As with the

prior year’s form, Cady obtained the Form 278 from the agency’s General

Counsel. (AF, Tab 71, Cady Decl., pp. 46-47). Second, Cady’s investigation

confirmed that the appellant did, indeed, check “None” when asked about 2013

gifts in excess of $350 from a single source. (AF, Tab 11, page 272). Third, as

explained in more detail below, and again despite some evidentiary issues, the




46

agency has proven that the appellant received more than $350 from Kaiser

Permanente, and more than $350 from Lewis, based on most, but not all, of the

items set out in the specification.

The agency alleged that the appellant failed to report the reimbursement oftravel expenses regarding her October 2013 Kaiser Permanente job interview,

which totaled more than $770 for airfare, hotel, meals, rental car, and airport

parking. (AF, Tab 1, page 12). In support of that allegation, Cady’s Declaration

confirms the review of OIG-subpoenaed documents from Kaiser Permanente,

(AF, Tab 71, Cady Decl., p. 45), which indicate that on October 7, 2013, the

appellant did indeed interview for the position of Chief Operating Officer at the

Santa Clara Medical Center. (AF, Tab 11, p. 295). However, with respect to the

expenses for that trip, Cady makes the following assertion in his declaration: “I

reviewed OIG-subpoenaed documents from Kaiser Permanente (KP). They

indicate that Ms. Helman’s reimbursements for the interview described in

paragraph 29 above were paid as follows by Kaiser Permanente: $33.78 (meals),

$60.57 for one day’s car rental, $22.00 for airport parking, $141.34 for one

night’s hotel stay, and round trip air fare of $259.80. This resulted in a total of

$517.49.” (AF, Tab 71, Cady Decl. p. 45) (citing AF, Tab 11, pp. 278, 281-83,

286-88, 290-91, 293). In looking at the underlying evidence, it is somewhat more

nuanced: Kaiser Permanente only reimbursed the appellant with a check for

$116.35 to cover meals, rental car, and airport parking, while the remaining

expenses for hotel ($141.34) and air travel ($259.80) were paid directly by Kaiser

Permanente to third-party vendors, and not to the appellant. (AF, Tab 11, p. 276).

The distinction makes somewhat of a difference because Form 278 only requires

the reporting of “travel-related cash reimbursements received from one source

totaling more than $350.” (AF, Tab 11, pp. 266, 272) (emphasis added). In this

case, the appellant only received a “travel-related cash reimbursement” of

$116.35, which is below the reporting threshold. Nevertheless, for the remainder

of the Kaiser Permanente interview trip, the appellant received more than $350 in




47

value, which triggers the Form 278 requirement to report “gifts (such as tangible

items, transportation, lodging food, or entertainment) received from one source

totaling more than $350.” ( Id .). Accordingly, I find that the agency has

established a 2013 unreported reimbursement received from Kaiser Permanente.With respect to the five unreported 2013 gifts from Lewis, each is

addressed in turn. The first unreported 2013 Lewis gift involves roundtrip airline

tickets from Phoenix to El Paso for travel in March 2013 at a cost of

approximately $317.60. (AF, Tab 1, page 12). At the outset, it should be noted

that this item, standing alone, does not meet the $350 minimum reporting

requirement. (AF, Tab 11, pp. 266, 272). As Form 278 provides, the appellant

was only required to report gifts or travel-related cash reimbursements “received

from one source totaling more than $350.” ( Id.). Nevertheless, to the extent it

may be combined with other unreported 2013 gifts from Lewis, the record

evidence supports the charge. Cady’s Declaration confirms that he reviewed a

March 11, 2013 email from Lewis to the appellant confirming the Phoenix to El

Paso e-ticket at a cost of $317.60. (AF, Tab 71, Cady Decl., p. 44). Although

Cady again does not provide a record citation, this time, the email is included in

the record. (AF, Tab 11, pp. 204-208). The gift is also confirmed by Cady’s

Declaration regarding his review of the OIG-subpoenaed documents from

Southwest Airlines, (AF, Tab 71, Cady Decl. p. 44), which references those

records. (AF, Tab 11, pp. 309-325).

The second unreported 2013 Lewis gift was a roundtrip airline ticket from

Phoenix to Eureka, California for travel in May 2013 at a cost of $1015.60. (AF,

Tab 1, PAM. p. 12). The agency has not proven this alleged gift by preponderant

evidence. Cady’s declaration confirms his review of Lewis’s April 4, 2013 email

to the appellant forwarding the United Airlines Eureka roundtrip e-ticket to the

appellant, which states “[f]or your upcoming Avenue of the Giants Marathon.”

(AF, Tab 11, pp. 211-13). However, the problem with this allegation is also

found in Cady’s declaration, which concedes that, based on OIG-subpoenaed




48

United Airlines documents, the airfare was $1015.60, but only $507.80 was paid

(AF, Tab 71, page 44). Although that fact strongly suggests there was travel by

either the appellant or Lewis, but not both, Cady does not further explain the

discrepancy. Moreover, the very OIG-subpoenaed documents relied upon byCady tend to show the passenger was Lewis, not the appellant. (AF, Tab 11, pp.

343-44). Paragraph 21 of Cady’s declaration cites Tab 11, pages 343-44, which

is a difficult to decipher computer printout, but almost all the references are to

Lewis, not the appellant. Moreover, the very next two pages, which Cady does

not mention, seem to confirm Lewis as the passenger in the itinerary, and include

a copy of his boarding pass. (AF, Tab 11, pp. 345-46). There are no comparable

documents, a boarding pass or something similar, for the appellant. Accordingly,

I find that the agency has failed to prove this gift to the appellant.

The third unreported 2013 Lewis gift was a roundtrip airline ticket from

Phoenix to Portland, Oregon for travel in June 2013 at a cost of approximately

$389.80. (AF, Tab 1, PAM, p. 12). Paragraph 24 of Cady’s declaration

references his review of a June 26, 2013 email Lewis sent to the appellant

forwarding the e-ticket for this trip (AF, Tab 71, Cady Decl. p. 44). That email is

in the record. (AF, Tab 11, pp. 216-219). Moreover, Cady relies on the OIG-

subpoenaed record from United Airlines, which further confirms the appellant’s

flight at Lewis’s expense. (AF, Tab 11, page 348, column 3). Both the Lewis

email and the OIG-subpoenaed United Airline record confirm that the roundtrip

ticket was purchased in June for travel in July. (AF, Tab 11, pp. 216-219, 348). I

conclude that the agency has proven this gift allegation.

The fourth unreported 2013 Lewis gift was a set of tickets and parking fees

for the Mrs. Carter Show World Tour Starring Beyoncé on about December 7,

2013 at a cost of $729.50. (AF, Tab 1, PAM, p. 12). Cady again confirms his

review of a December 13, 2013 email from the appellant to her staff regarding her

attendance at the Beyoncé concert. (AF, Tab 71, Cady Decl., p. 45). That email

is found in the record. (AF, Tab 11, p. 235). In Paragraph 27 of his declaration,




49

Cady also asserts the uncovering of an August 28, 2013 email from Lewis to the

appellant forwarding the Ticketmaster confirmation and including the message,

“Enjoy!” (AF, Tab 71, Cady Decl. p. 45). He again, however, fails to provide a

record citation to that email, and a search has not revealed it. Nevertheless, in paragraph 28 of the declaration, Cady attests to his review of OIG-subpoenaed

documents from Live Nation/Ticketmaster, which confirmed that Lewis paid for

the tickets. (AF, Tab 71, Cady Decl. p. 45). Those documents are actually in the

record. (AF, Tab 11, pp. 300-302). Accordingly, I find it more likely than not

Lewis gave the appellant this gift.

The last of the five unreported 2013 Lewis gifts involved a December 2013

entry fee for the 2014 P.F. Chang’s Rock ‘n’ Roll Arizona Marathon & Half

Marathon at a cost of $282.98. (AF, Tab 1, PAM, pp. 12). Again, standing

alone, this allegation would be insufficient due to the $350 reporting requirement

(AF, Tab 11, pp. 266, 272). Nevertheless, in combining it with other 2013

unreported gifts, Cady’s Declaration confirms his review of Lewis’s December

11, 2013 email to the appellant, which forwards the race registration confirmation

to the appellant and which was paid by an individual with Lewis’s billing address

and the last four digits of Lewis’s VISA credit card number. (AF, Tab 71, Cady

Decl., p. 45). That email is also in the record. (AF, Tab 11, pages 230-32). I find

that the agency has proven this last gift, as well.

In sum, with respect to the Charge 3, I find the agency has proven the

following. For Specification A, I find that the agency has proven both of its

allegations regarding unreported 2012 Lewis gifts: (1) the $465.07 roundtrip

airline ticket between Phoenix and Vancouver; and (2) the $355.60 roundtrip

airline ticket between Phoenix and Portland, Oregon. For Specification B,

regarding the unreported 2013 Kaiser Permanente monies, I find the agency has

proven the allegation, but only with respect to the hotel and airfare. As for the

five unreported 2013 Lewis gifts, I find the agency has proven the payment for

the $317.60 roundtrip airfare between Phoenix and El Paso, the $389.80 roundtrip




50

airfare between Phoenix and Portland, Oregon, the Beyoncé world tour tickets

and parking and the P.F. Chang’s Rock ‘n’ Roll Arizona Marathon. The agency

did not adduce preponderant evidence regarding the $1015.60 roundtrip airline

ticket between Phoenix and Eureka because the underlying paperwork suggeststhat the trip was taken by Lewis, not the appellant.

In response to these charges, the appellant asserts three arguments, none of

which carries the day. First, the appellant argues that she is unable to respond to

the merits of the allegations based on due process considerations. (AF, Tab 70,

Appellant’s Merits Brief, pp. 53-54). As ruled previously, although no adverse

inference has been drawn against the appellant, the agency has proven the charge

without any inference. The appellant also argues that the agency has not brought

a charge of “failure to report gifts” against any senior executive in the past five

years, or possibly ever (AF, Tab 70, page 54). Again, this speaks to penalty not

the legality of the charge.

Finally, the appellant argues that the agency “neither alleges nor cites to

any evidence that Ms. Helman used the purported gifts at issue or that she did not

repay the purported giftor for those gifts.” (AF, Tab 72, Appellant’s Merits Brief,

p. 18). I reject that argument. First, it is irrelevant whether the appellant used or

repaid the gifts because Form 278 requires disclosure of gifts that were

“received” by the appellant, regardless of whether they were used or repaid. (AF,

Tab 11, pp. 266, 272). See LaChance, 147 F.3d at 1371 (the agency need only

prove what it has charged in the specification). Moreover, the record supports the

conclusion that the gifts were accepted and utilized. For example, when Mr.

Lewis emailed the appellant travel confirmation for her flight to Eureka, he wrote

“For your upcoming Avenue of the Giants Marathon. Good Luck!” (AF, Tab 11,

p. 211). The Kaiser Permanente records are clear about the payments made to

and on behalf of the appellant, with no suggestion of repayment. (AF, Tab 11,

pp. 227, 276-298). Likewise, when Lewis emailed the appellant to confirm her

trip to the Rock ‘n’ Roll Arizona Marathon, the appellant responded by email




51

“Whoooo hoooo!” (AF, Tab 11, page 230), and Lewis replied: “Hope you feel

that way after you run the marathon …. :) I think you’re in Sedona two day[s]

later …. :)” (AF, Tab 11, p. 230). Similarly, as detailed above, the OIG-

subpoenaed airline records confirm that the appellant took the flights. I find theagency has adduced preponderant evidence in support of this specification, and it

is sustained.

The appellant has not established her affirmative defenses.

The appellant has argued from the start that the agency violated her pre-

removal due process rights by failing to give her meaningful notice and

opportunity to respond to the action pending against her, and also that the post-

removal proceedings here violate her due process rights because of their

abbreviated nature. (AF, Tab 1, Appeal Form, p. 6, Tab 70, Appellant’s Merits

Brief, pp. 19-35; Tab 72, Appellant’s Response Brief, pp. 5-8). As I explained in

my December 8, 2014 ruling, violation of due process is a viable affirmative

defense in proceedings under 38 U.S.C. § 713. (AF, Tab 25). The appellant

bears the burden of proving this affirmative defense by preponderant evidence. 5

C.F.R. § 1210.18(b)(3).

The essential requirements of due process are prior notice and an

opportunity to respond. Cleveland Board of Education v. Loudermill, 470 U.S.

532, 546 (1985). As the Supreme Court has explained, dismissals for cause will

often involve factual disputes, and consideration of the employee’s response may

help clarify such disputes before any deleterious action is taken. In addition,

even if the facts are clear, the appropriateness or necessity of the discharge may

not be; in such cases, the only meaningful opportunity to invoke the discretion of

the decision maker is before the termination takes effect. See id . at 543. In order

for this opportunity to respond to be meaningful, the deciding official must

actually consider an employee’s timely response to a proposed action. See

Hodges v. U.S. Postal Service, 118 M.S.P.R. 591, 594 (2012) (“the deciding




52

official’s complete failure to consider the appellant’s written response to the

proposal notice before issuing a decision constitutes—in and of itself—a

violation of minimum due process of law”).

In this case, the appellant alleges that the deciding official had alreadydecided to remove her before she responded to the notice of pending action, thus

failing to give her response meaningful consideration, and thereby violating her

pre-removal due process rights. (AF, Tab 1 at 6; Tab 70, Appellant’s Merits

Brief, pp. 24-32). Specifically, she argues that the agency was under intense

political pressure to remove her, and that the deciding official bowed to this

pressure without regard to the appellant’s side of the story. ( Id ., pp. 25-30). In

support of her argument, the appellant cites to numerous public comments and

other documents by and from individuals expressing their desire that she be

removed, some of which were quite harsh. ( Id ., pp. 25-27). Most specifically to

her, she cites a letter from Arizona Senators John McCain and Jeff Flake to

Secretary McDonald stating that “[t]he clearest example of your failure to change

the culture at the VA is the continued employment of Sharon Helman, the former

director of the Phoenix VA Health Care system,” (AF, Tab 48, pp. 7-8), a news

article quoting Representative Jeff Miller as stating that the agency “needs to

move much more quickly to purge other disgraced personnel from its payroll,”

including the appellant, (id ., p. 13), a press release from Representative Miller’s

office stating that the agency needs to get serious about purging “villains”, (id ., p.

32), a hearing before the House Committee on Veterans Affairs, in which

Representative Kirkpatrick stated that he and his constituents are “calling for the

[appellant’s] immediate firing. We want that to happen immediately.” (AF, Tab

49, p. 17). The appellant also cites public comments by Secretary McDonald,

stating that he intended to hold senior leadership at the Phoenix VAHCS

accountable through appropriate disciplinary action. (AF, Tab 45, pp. 16, 19-20;

Tab 70, Apppellant’s Merits Brief, p. 26). Finally, she cites a letter from

Secretary McDonald to Representative Miller, explaining delays in the agency’s




53

taking action against the appellant and assuring him that the agency “will move

swiftly, within the bounds established by law, to bring these matters to closure.”

(AF, Tab 72, Appellant’s Response Brief, pp. 30-32). More probably than not,

the agency was under political pressure, amplified through the media, to removeher from service, and Secretary McDonald responded to this pressure by assuring

Congress and the public that the agency was taking swift action to address the

situation.

Nevertheless, the agency submitted a declaration from Deputy Secretary

Gibson, the actual deciding official in this case, explaining that he took his job as

deciding official seriously, that he did not discuss the matter with any agency

employee apart from counsel and human resources staff, that no agency official

pressured him to reach a particular result, and that despite congressional and

media attention, he personally felt no pressure to take a particular action against

the appellant, and in fact, he does not allow the media or Congress to pressure or

influence him in the performance of his official duties as Deputy Secretary. (AF,

Tab 71, Agency’s Merits Brief, Gibson Decl., pp. 57-59). He further explained

his decision-making process and the evidence that he took into account in

arriving at his decision, including the appellant’s response to the notice of

pending action. ( Id ., pp. 54-59).

Weighing the circumstantial evidence of political and media pressure

against the direct evidence of impartiality by the deciding official, I find that the

appellant has not proven she was deprived of a meaningful opportunity to respond

to the PAM before her removal. See Blake v. Department of Justice, 81 M.S.P.R.

394, 413-14 (1999). While not wholly discounting the scrutiny to which the

agency has been subjected recently, and with respect to the appellant in

particular, I find insufficient reason to disbelieve the deciding official’s sworn

claim of impartiality. Absent effective cross examination or some kind of

“smoking gun,” overcoming that declaration is a high hurdle. I further find that,

notwithstanding the demands from individual congressmen that the appellant be




54

removed from service, there is insufficient evidence to find that Deputy Secretary

Gibson ever promised any particular result in her disciplinary action. Rather,

Secretary McDonald assured Congress and the public that the process would

proceed as quickly as practicable and that the course of events would bedetermined by the law and the evidence. (AF, Tab 45, pp. 16, 19-20; Tab 72 pp.

30-32).

The appellant also argues that the agency deprived her of pre-removal due

process by giving her only 5 days to respond to the notice of pending action,

which she argues was insufficient under the circumstances. (AF, Tab 70,

Appellant’s Merits Brief, pp. 31-32). I agree with the appellant that 5 days was a

short amount of time to respond to this notice of pending action. Nevertheless, I

do not find the response period was so short as to constitute, on its face, a due

process violation, i.e., lack of a meaningful opportunity to respond to the charges.

See Lee v. Western Reserve Psychiatric Habilitation Center , 747 F.2d 1062,

1068-69 (6th Cir. 1982) (3 days’ notice was sufficient to satisfy due process in

the hospital’s termination action).

Furthermore, recognizing that due process is, to a large extent, situational,

I have considered the particular facts of this case, and find that the appellant has

not established that the 5-day response period that she was afforded violated her

due process rights.13 See Mathews v. Eldridge, 424 U.S. 319, 335 (1976). (“[D]ue

process is flexible and calls for such procedural protections as the particular

situation demands.”) (quoting Morrissey v. Brewer , 408 U.S. 471, 481 (1972)).

Specifically, I find that the appellant was aware for over 5 months, since the May

30, 2014 notice of proposed removal, that the agency was pursuing disciplinary

action against her, and of the general bases for at least some of the misconduct

alleged in the November 10, 2014 notice of pending action. (AF, Tab 1, p. 9, Tab

13 The agency asserts the appellant actually had eight days to respond. I use the shorter

period to evaluate the appellant’s claim.




55

18, p. 29). Thus, this is not a case where an employee was caught off guard. I

further find that the appellant did not request an extension of time to respond to

the proposal. She argues that “the VA’s procedures do not allow any discretion

in the time frame for [her] response,” (Tab 70, Appellant’s Merits Brief, p. 31), but this characterization is not quite accurate. The agency’s written procedures

provide that “the Senior Executive will have 5 business days after receiving both

the Pending Action Memorandum and the evidence file to respond in writing to

the Pending Action Memorandum.” (AF, Tab 12, p. 248). The procedures do not

expressly provide for an extension of this time period, but neither do they forbid

it. ( Id ., pp. 242-49). Indeed, Deputy Secretary Gibson stated in his sworn

declaration that he offered the appellant an extension of time to respond to a

discrete issue for which he obtained additional information after the appellant had

submitted her response, but the appellant declined the offer. The appellant has

not offered evidence to rebut that point. Under these circumstances, I cannot find

that the 5-day response period deprived the appellant of due process.

Regarding post-removal due process, the appellant argues that the

abbreviated 21-day statutory adjudication period is unreasonable and calculated

to deprive her of due process, and that the Board’s implementing regulations

deprive her of the opportunity to conduct meaningful discovery and develop the

record. (AF, Tab 70, Appellant’s Merits Brief, pp. 32-35). See 38 U.S.C. §

713(e)(1), (3), 5 C.F.R. § 1210.12. As an initial matter, the Board’s discovery

regulations are calculated, in part, to assist administrative judges, and the parties,

in complying with the statutory 21-day adjudication period. Discovery is

truncated because the entire process is truncated. Furthermore, the Board’s

discovery regulations are alterable at the presiding judge’s discretion, something

not sought here. The problems the appellant cites are all children born of the

statute. Therefore, it seems the appellant’s due process challenges to these post-

removal proceedings are all tantamount at a due process challenge to the statute

itself. I lack the power to rule on the constitutionality of the enabling statute




56

which provides the authority to hear this case in the first place. See Special

Counsel v. Bianchi, 57 M.S.P.R. 627, 632 (1993).

The appellant also argues that the agency committed harmful error in the

application of its procedures when it removed her. Harmful error under 5 U.S.C.§ 7701(c)(2)(A) cannot be presumed; an agency error is harmful only where the

record shows that the procedural error was likely to have caused the agency to

reach a conclusion different from the one it would have reached in the absence or

cure of the error. See, e.g., Stephen v. Department of the Air Force, 47 M.S.P.R.

672, 681, 685 (1991). The appellant also bears the burden of proving this

affirmative defense by preponderant evidence. 5 C.F.R. § 1210.18(c).

In this case, the appellant argues that the agency violated its written

procedure requiring that”[t]he Secretary or his designee will give full and

impartial consideration to the Senior Executive’s reply, if any, and all evidence of

record.” (AF, Tab 12, p. 248; Tab 70, Appellant’s Merits Brief, pp. 57-58). The

appellant argues that a poorly constructed charging document, the defeat of

several specifications by their own language or by the Agency’s own evidence,

and the agency’s challenge to the appellant’s response to Charge 1 as “irrelevant”

to these proceedings indicate that the deciding official was not fair and impartial

as required. (AF, Tab 70, Appellant’s Merits Brief, pp. 57-58). Although I agree

with the appellant that the agency’s case suffers from some infirmities, I do not

think that these, or the agency attorneys’ litigation strategies during this appeal,

are particularly probative of the deciding official’s state of mind. Once again, as

found above, I find insufficient reason to doubt Deputy Secretary Gibson’s

impartiality as expressed in his declaration. The appellant also points to

irregularities in the agency’s action to take back bonus money she was paid, such

as not turning over documents to her that possibly should have been. She does

not, however, tie those actions to the deciding official here. Because the

appellant has not shown that the agency committed any procedural error, I find

that she has not proven her claim of harmful procedural error.




57

The appellant has not rebutted the presumption of the reasonableness of the

penalty.

The appellant first makes a legal argument about penalty mitigation, i.e.,

the practice of reducing an agency’s chosen penalty to some lesser form of punishment. First she contends the Board was not authorized to actually

promulgate regulations. She also contends that the all-or-nothing rebuttable

presumption approach to penalty review established by 5 C.F.R. § 1210.18 is

unwarranted and that penalty mitigation is still permissible. She notes that

penalty mitigation has been a long standing fixture of civil service law and that in

passing 38 U.S.C. § 713 Congress did not expressly rule it out, but could have, as

it did with particular regulatory and statutory sections. She further points out that

Congress did expressly make appeals under Section 713 subject to the provisions

of 5 U.S.C. § 7701, and 5 U.S.C. § 7701(b)(3) provides the authority to mitigate.

(AF, Tab 70, Appellant’s Merits Brief, pp. 57-59). The appellant may or may not

have a fair argument. However, it will not be addressed. The time to raise a

challenge to the procedures used to decide this appeal was before the motion

deadline.

For its part, the agency argues that the Board’s seminal penalty

consideration decision, Douglas v. Veterans Administration , 5 M.S.P.R. 280

(1981), is not applicable to this appeal under 38 U.S.C. § 713. However, it also

concedes that some of the factors set out in Douglas were factors the Deputy

Secretary himself considered in arriving at his decision. (AF, Tab 71, Agency’s

Merits Brief, pp. 29-31). As the parties were previously notified, whether the

appellant can rebut the presumption of the appropriateness of the penalty imposed

in this case, removal, will be determined by the totality of the circumstances.

Simply because certain types of circumstances were discussed in Douglas does

not render them inapplicable. Therefore, the Douglas factors will be considered

along with, as ruled earlier, any other factor the parties feel is germane, even

though it is not set out in Douglas.




58

The arguments above aside, the appellant points to several factors in her

attempt to rebut the reasonableness of her removal. At the outset, it must be

noted the appellant is attempting to rebut a presumption. For the proven

misconduct, the penalty of removal is reasonable unless and until the appellantadduces sufficient evidence to prove otherwise. See 2 McCormick On Evidence

§§ 342, 344 (7th ed.).

The appellant correctly anticipated that Charge 1 would not be sustained,

and she contends those charges were the most serious against her as they were the

ones the Deputy Secretary noted in the PAM as making her not suitable for the

civil service. She wrongly anticipated, however, that Charge 2, Specification A

would not be sustained. However, as noted above, the charge that a manager

either took or allowed an action which “could be perceived as retaliation” is not

particularly serious because any time a manager takes some personnel action

against an employee who has engaged in some kind of protected activity, a

perception of retaliation could arise, subject to the legal contours of a retaliation

claim for the particular type of protected activity, even if there is no deliberate ill

intent or carelessness on the manager’s part. Thus, while that specification was

sustained, it is not particularly serious misconduct. She contends that in looking

at Charge 2, Specification B, and all of Charge 3, it is not serious misconduct and

removal is unreasonable, citing a case holding inadvertent offenses lessen the

seriousness of the misconduct. I must disagree.

In the context of the appellant’s position, as an SES Director of a sizable

health care system with a large budget, one must be scrupulous to avoid even the

appearance of a conflict of interest and to correctly report the things of monetary

value one receives from others. See Coons v. Department of Navy, 15 M.S.P.R.

1, 5 (1983) (“Creating the appearance of a conflict of interest constitutes a

serious breach of trust. The Government clearly has an interest in prohibiting

such conduct, and in ensuring that its agents and employees are not compromised

in the performance of their duties as a result of any outside influences”). The




59

higher ranking one is, the more important those things become. See Walcott v.

U.S. Postal Service, 52 M.S.P.R. 277, 284 (1992) (an agency can hold a high-

ranking employee to a higher standard of conduct for purposes of penalty), aff'd ,

980 F.2d 744 (Fed. Cir. 1992). Moreover, I conclude that the appellant’smisconduct in Charge 2, Specification B and in Charge 3, was not inadvertent.

Sincerely forgetting about one of the plane rides purchased for her might be

understandable in some circumstances but, the notion she actually forgot them all

strains credulity. Moreover, accepting gifts such as tickets to a popular

performer’s concert from a person who represents companies seeking to do

business with the agency was, more probably than not, not an accident or mistake.

I conclude the appellant’s offenses are serious and more likely than not,

intentional. See Murry v. General Services Administration, 93 M.S.P.R. 554,

557-58 (2003); Wynne v. Department of Veterans Affairs, 75 M.S.P.R. 127, 135-

36 (1997) (the nature and seriousness of the misconduct and its relation to the

employee’s duties, position, and responsibilities, including whether the offense

was intentional are paramount considerations).

The appellant contends she a long a history of quality service with the

agency and, until this point, it was blemish free. See Alexander v. U.S. Postal

Service, 67 M.S.P.R. 183, 190 (1995) (long service with a good history weigh in

favor of the employee). Indeed, she avers she worked her way up from a low

ranking Program Assistant position to ultimately be chosen for a series of facility

director positions. She has not adduced evidence of that earlier work history,

however. On the other hand, the agency also adduced no evidence that the

misconduct at issue here was the last straw on top of a history of problematic

behavior, and no such evidence is apparent from the record. Ultimately, though,

it is the appellant’s burden to prove what she asserts to rebut the penalty and, she




60

has not established a long, positive work history by preponderant evidence. 14

Moreover, even if the appellant had adduced such evidence, it is outweighed by

the seriousness of her misconduct and its relation to her position. See id.

With considerations about notoriety of the appellant’s misconduct, I amaware of none, insofar as the sustained misconduct is concerned. The press and

Congressional attention has been on the charges the agency failed to prove. This

weighs in favor of the appellant. Then there is the issue of notice. While I find it

more likely than not the appellant was not on notice that taking an action which

might be perceived as retaliatory could be misconduct on her part, I find she was

on notice that not accurately completing the Office of Government Ethics Form

278 was actionable misconduct, because the form advised next to the signature

box that by signing she was certifying that the statements she made on the form

were true, correct and accurate to the best of her knowledge. The form also states

in the following section that another official must certify that the appellant’s

answers avoid even the appearance of a conflict of interest. See Ware v.

Department of Veterans Affairs, 76 M.S.P.R. 427, 435-36 (1997) (“the fact that

the appellant was clearly on notice of the procedures to be followed to avoid the

misconduct support the removal penalty”).

I conclude the appellant has little rehabilitative potential. She has

steadfastly denied any wrongdoing in the course of this appeal and attempted to

deflect attention from her own actions by pointing to political considerations and

complaining the agency has been looking in to her private life. While it is likely

that the political spectacle which followed the revelations about how the agency

was conducting its business is what led the agency to apply scrutiny to her, taking

a close look was not unwarranted under the circumstances. Moreover, even if it

was somehow inappropriate for the agency to scrutinize the appellant in the

14 The appellant points to her “Ex. 1 ¶¶ 2, 4, 8.” The Exhibit 1 to the brief is a

declaration from the appellant, but it does not discuss her work history.




61

manner it did, when the agency did look, it found serious financial improprieties

on her part. They are not to be simply ignored. Her failure to take responsibility

for any of the sustained misconduct does not support a finding of rehabilitative

potential. See Dolezal v. Department of Army, 58 M.S.P.R. 64, 71 (1993) (inholding an appellant had “little, if any,” rehabilitative potential, the Board noted

“the appellant still does not understand the serious nature of his misconduct. He

still contends that his [misconduct] was none of the agency's business” and that

“He does not appear to understand that he is held to a higher standard of conduct

because of his SES status”).

In sum, considering all the factors cited by the parties, including the

discretion the agency argues it should have under 38 U.S.C. § 713, I conclude the

ones outlined above are most relevant. The appellant has not established that the

penalty of removal is unreasonable under the circumstances of this case. It must,

therefore, be upheld.

DECISION

The agency’s action is AFFIRMED.

_/S/__________________________Stephen C. MishChief Administrative Judge

NOTICE TO APPELLANT

Pursuant to 38 U.S.C. § 713(e)(2), this decision is final and not subject to

any further appeal.






DENVER FIELD OFFICE

TONJA LYNN LANEY,

Appellant,

v.

DEPARTMENT OF VETERANS

AFFAIRS,

Agency.

DOCKET NUMBER

DE-1221-15-0139-W-2

DATE: October 14, 2015

Tonja Lynn Laney, Scottsdale, Arizona, pro se.

Alfred Steinmetz, Esquire, Phoenix, Arizona, for the agency.

BEFORE

David S. Brooks

Administrative Judge

INITIAL DECISION

INTRODUCTION

On January 2, 2015, the appellant timely filed this individual right of

action (IRA) appeal alleging that in reprisal for her making protected disclosures

and providing testimony to the Inspector General, the agency detailed her from

her position as Chief Fiscal Officer pending an administrative investigation and

searched her office. Initial Appeal File 1 (IAF1), Tab 1. The Board has jurisdiction over this appeal pursuant to 5 U.S.C. §§ 1214(a)(3), 1221(a), 1221(e).

IAF1, Tab 9; Initial Appeal File 2 (IAF2), Tab 7. The hearing the appellant

requested was held on September 1, 14, and 15, with the record closing at the




2

conclusion of the hearing. Initial Appeal File 2 (IAF2), Hearing Compact Disc

(HCD).

For the following reasons, I find the agency subjected the appellant to

whistleblower reprisal. The appellant is hereby notified that she may file amotion for the initiation of an addendum proceeding on damages. See 5 C.F.R.

§§ 1201.204(d)-(e).


In brief, I find that the agency’s detail of the appellant was a significant

change in working conditions appealable under the Whistleblower Protection Act,

and that the agency’s search of her office was simply part and parcel of the detail,

although it was not a separately appealable “significant change in working

conditions” under 5 U.S.C. § 2302(a)(2)(A)(xi). I find that the proximate reason

for the agency’s detail of the appellant and related search of her office was an

administrative investigation into allegations about her, but more importantly, I

find that the underlying administrative investigation was commenced primarily

because Maria Schloendorn, chief of the Human Resources Office, introduced

baseless allegations against the appellant in reprisal for her whistleblowing

activity. See IAF2, Tab 15 at 372-73 (investigative report summary); HCD,

Scherpf (identifying basis of investigation), Pokorny (establishing retaliatory

animus of Schloendorn and her willingness to manufacture charges against the

appellant), Nemcek (establishing Schloendorn’s insistence of a search based on

files the appellant had in her office), Appellant (establishing Schloendorn’s

knowledge of and interest in files the appellant indicated she was going to share

with the Inspector General). There was at least one basis for the investigationthat had no direct tie to Schloendorn, namely the hostile work environment

complaint of one of the appellant’s staff. IAF1, Tab 11 at 4-5, 23-24. However, I

find the agency’s defense of its actions fell far short of establishing by clear and

convincing evidence that it would have detailed the appellant and subsequently




3

searched her office in the absence of the appellant’s whistleblowing and Inspector

General activities.

A. Background

The following is undisputed unless otherwise noted. The appellant has

been Chief Fiscal Officer (CFO) (sometimes referred to as Chief Financial

Officer), GS-14, for the Phoenix Veterans Affairs Healthcare System (Phoenix

office) since February 2012, and prior to that she was CFO for the Amarillo

Veterans Affairs Healthcare System (Amarillo office). HCD, Appellant. As

CFO, the appellant oversees the Phoenix office’s Fiscal Services unit. Id.

During the timeframe of 2013 to 2014, the Associate Director of the

Phoenix office was Lance Robinson, and the Assistant Director was John Scherpf;

both Robinson and Scherpf testified at the Board’s hearing. HCD, Robinson,

Scherpf. Robinson has been on administrative leave for approximately the last

500 days for reasons unrelated to the instant IRA appeal, and Scherpf left the

Phoenix office in June 2015 to accept a position with a private entity. Id.

Also during the timeframe of 2013 to 2014, the chief of the Phoenix

Human Resources Office Management Service (HR) was Maria Schloendorn;

HR’s Section Chief for Employee Relations was Rodney Daughetee; Joe Masisak

was an HR Specialist who occasionally acted as HR chief; and Jennifer Nemcek

was an Employee and Labor Relations Specialist. HCD, Robinson, Daughetee,

Nemcek. In December 2013, Caryl Pokorny joined HR as supervisor of the

Benefits section. HCD, Pokorny. In or after December 2014, Schloendorn

retired from federal service. HCD, Appellant. The following HR employees

testified at the Board’s hearing: Daughetee, who has since left the Phoenix

system for another state; Nemcek, and Pokorny. The appellant called

Schloendorn as a witness and requested a subpoena to compel her attendance.

IAF2, Tab 7. However, during a hearing break in an unrecorded conversation

with the appellant and the agency representative, the appellant stated that




4

Schloendorn had “refused” service of her subpoena when she had it delivered to

her address of record. After I apprised the appellant of the documentation that

she would need to submit for me to consider whether enforcement of the

subpoena should be sought, and after I reminded her that she was the only partythat had Schloendorn as a witness and that she thus had the right to withdraw

Schloendorn from the witness list, she did so. I recorded the lack of any

objection to the withdrawal. HCD, Withdrawal of Schloendorn.

On November 29, 2013 (first instance of protected activity), the appellant,

in response to an email asking her to concur with a Student Loan Repayment

Program (SLRP) request, sent the following to “PHXVAHCS/DIR” with a carbon

copy to Robinson:

Nonconcur. Why didn’t this go out to all services for a submission?

Why are the only new title 5 recommended approvals for PVAHCS

HR employees who coordinated the suspense and oversees the

program? There are other hard to fill title 5/Title 38 positions that

should be considered for this as well. This should go out to all

services for submission and ranked by pentad and/or Director before

submission.

IAF2, Tab 15 at 89 (emphasis added). After a series of email exchanges that

followed, and which included Schloendorn, Robinson sent the following to, inter

alia, Schloendorn and the appellant:

Please meet and address these issues today.

I’m forwarding this message to our facility officer and requesting

that they conduct an audit to ensure that we’re following both our

station level policy and HR policy and OPM guidelines if they exist.

Id. at 85.

On January 23, 2014 (second instance of protected activity), the appellant

sent the following to Robinson, entitled “Timekeeping irregularities”:

[F]iscal service has discovered timekeeping irregularities. … I am

currently recommending that we send out clear instructions

reminding supervisors and chiefs of the appropriate use of CT, OT,

and telework and then revisit in our annual timekeeping audits.




5

Education is absolutely necessary at this point as the first employee

is clinical administration and the second is an admin HR supervisor.

Id. at 93-94. The email was forwarded to Schloendorn on January 27, 2014. Id.

at 93. The appellant’s email went on to describe the “Employee #1 GA-11

Admin” as “[n]ot telework eligible” but “appears working OT from home due to

irregularity of hours,” “Odd OT hours, and “OT does not appear to be

preapproved,” before listing data about ten days of work claimed by the

employee. Id. at 94. The appellant’s email described “Employee #2 GS-13

Supervisor” as “[n]ot telework eligible” but “appears working OT from home due

to irregularity of hours,” “[t]aking leave and working CT in the same day,”

“[t]aking Friday off and working CT Saturday,” and “CT used to complete TMS

training” when “by law CT/OT cannot be used to complete regularly scheduled

training,” before listing data about seven days of work claimed by the employee.

Id. at 95. On January 28, 2014, Masisak sent an email to Robinson, Schloendorn,

and the appellant, stating, “we will need the employees[’] names” so they could

evaluate the concerns. Id. at 92. On the same date, the appellant sent a private

email to Robinson stating, “Joe [Masisak] was the approving official on the

second timecard.” Id. On May 14, 2014 (third instance of protected activity), the appellant

provided testimony to the Office of Inspector General about a number of matters

pertaining to the Phoenix office. HCD, Appellant; IAF1, Tab 1 at 5; IAF2, Tab

15 at 79.

On May 15, 2014 (alleged retaliation), Steve Young, acting Medical Center

Director, placed the appellant on a temporary administrative detail to the Phoenix

office’s Quality, Safety and Improvement Section. IAF1, Tab 11 at 34 (lasting

until return to CFO position on September 8, 2014). The notice of detail stated:

An allegation has been filed that necessitates an investigation in

which you are named as a possible subject. The misconduct alleged

is of a very serious nature and during the investigation [it] would be

inappropriate for you to remain in contact with your staff who may




6

be complainants or witnesses. As a result, you are being

Administratively/Involuntarily Temporarily Detailed, so that the

agency will have the opportunity to determine whether inappropriate

conduct existed.

Id. The appellant was directed to report to Michelle Bagford, Chief of the

Quality, Safety and Improvement Section, effective May 16, 2014. Id. The

agency temporarily appointed Debbie Simon as acting CFO and Debbie Hagen as

assistant CFO. HCD, Simon, Hagen, Daughetee. The appellant testified without

dispute that she performed no work while on that detail. HCD, Appellant. The

administrative investigation that followed was conducted by the Administrative

Investigation Board (AIB). HCD, Scherpf.

After the appellant was informed of her detail away from her CFO position,she was escorted by Nemcek to her office to retrieve any personal belongings, but

was prevented from taking any agency files with her, per orders Nemcek had

received. HCD, Appellant, Nemcek. I reserve the bulk of my findings on the

search for below. However, what follows in the instant paragraph was

undisputed. After the appellant left the building, Simon and Hagen searched the

appellant’s office, with agency Detective Robert Mueller there for the ostensible

purpose of either observing or providing guidance on searching techniques.

HCD, Nemcek, Simon, Hagen, Daughetee, Mueller. Simon and Hagen sorted the

contents of the appellant’s office into the categories of work product, personal

belongings, and items they flagged as being questionable for a supervisor to have,

although they testified that it was not upon their own initiative that they flagged

questionable items. HCD, Simon, Hagen, Daughetee, Mueller. Either Simon and

Hagen or Mueller boxed the personal and questionable items, and Mueller took

the boxes to Daughetee, who stored them. HCD, Mueller, Daughetee. The

agency changed the appellant’s office’s lock and taped shut the edges of her

office’s door. HCD, Mueller.

On May 23, 2014, at Detective Mueller’s request, the appellant appeared

for questioning about the boxed contents of her office. HCD, Mueller, Appellant.




7

As to questions about documentation she had from her prior employment at the

Amarillo office, the appellant told Mueller that many of the documents were

“best practices” templates for her work in Phoenix. HCD, Appellant. As to

questions about her documentation of travel savings awards of two Amarilloemployees, the appellant told Mueller that they were evidence directly related to

defending herself against grievances that had been filed while she was at

Amarillo, but that she had forgotten to destroy the documents after the grievances

were resolved. Id. As to questions about a key that was found in her office that

was reported missing by her predecessor, the appellant told Mueller that she did

not know the lock to which the key belonged nor did she have any way of

knowing that. Id. Based on the appellant’s retention of the Amarillo employee

awards documentation, Mueller asked for the U.S. Attorney’s Office to criminally

charge the appellant with willful removal of government property, and the U.S.

Attorney did so. HCD, Appellant; Mueller. Mueller testified that the agency

ultimately concluded that it could not bring the charge in federal court and that it

should have pursued charges in state court. HCD, Mueller. However, the agency

stopped pursuing the charge, and it was ultimately dismissed with no further

criminal action taken on it. Id.

The Administrative Investigation Board was composed of the Associate

Director of the San Diego Medical Center, the equal employment opportunity

manager for the agency’s Maine Healthcare System, the chief financial officer for

the Salt Late Medical Center, the Purchased Care Manager for the Southwest

Healthcare Network, and an Employee Relations Specialist for the West Texas

Health Care System. HCD, Scherpf; IAF1, Tab 11 at 26-32. On August 4, 2014,

the AIB issued its findings on the allegations it had received pertaining to (1)

inappropriate behavior in violation of EEO principles, (2) inappropriate behavior

in violation of leave policy, (3) behavior violating merit systems principles, and

(4) inappropriately released protected information. IAF2, Tab 15 at 372. The

Administrative Investigation Board found, in pertinent part:




8

The issues identified in this investigation had already been reviewed

in two previous fact findings, and the fact finding found no evidence

to support the allegations.

* * *

Ms. Maria Schloendorn, Chief Human Resources Officer (HRO) wasnot forthcoming with information that she could have offered to

assist with the investigation. Ms. Maria Schloendorn ... was

interviewed three times during this investigation. It was necessary to

continue to interview her given the numerous times her name was

brought up in the sworn testimonies, where she was the source of

pertinent information related to this investigation. At the end of

every interview, the panel asked if there was anything we should

know that was not asked relating to this interview that we had not

asked. The testimony consistently reflected, the HRO’s lack of

knowledge or awareness or a deliberate attempt to misdirect the board from information germane to the inquiry: (1) She conducted a

Fact Finding related to an anonymous letter alleging Ms. Laney was

having sex in her office and was promoting a hostile work

environment. When asked for the report, we were told there was no

copy unless the Associate Director, Lance Robinson had a copy. (2)

The board believed that she knew about an investigation done

internally by the Phoenix VA on anonymous letters having the same

allegations (scope); similar, if not exactly, to our investigation. We

all felt that this was important to know and w[ere] surprised that she

was not forthcoming with this until subsequent interviews. It was

more surprising that she would keep this information from us, given

she conducted the internal investigation and also surprising she kept

no documentation as to her findings. (3) She did not provide

documents that were requested of her.

Id. at 373 -75. The AIB sustained the charge that the appellant violated policy by

attending a scheduled court date while failing to record that time away from her

station; the AIB recommended a “coach/mentor” for the appellant and that “she

should receive appropriate disciplinary action as determined by the table of

penalties for falsifying a timecard.” Id. at 373-74, 377. However, the AIB found

that the appellant “did not” engage in the other three alleged inappropriate

behaviors, nor did she inappropriately release protected private information. Id.

at 373-74. The AIB recommended: “Ms. Maria Schloendorn should receive




9

disciplinary action as appropriately identified by the table of penalties.” Id. at

377.

On September 8, 2014, Scherpf returned the appellant to her position as

CFO. IAF2, Tab 15 at 16 (appellant submission); HCD, Appellant (identifyingScherpf as the individual who informed her she was being returned). Two weeks

later, on September 22, 2014, the appellant re-obtained “all the files seized from

her office,” “sealed in two boxes and secured in Human Resources.” Id.

The appellant filed a whistleblower retaliation complaint with the Office of

Special Counsel (OSC), and thereafter filed this Board appeal. IAF1, Tabs 1, 2,

9. I found the appellant exhausted OSC’s remedies and raised nonfrivolous

allegations of whistleblower reprisal that: (a) the appellant engaged in protected

activity when she (1) reported concerns about a Student Loan Repayment

Program suspense on or about November 30, 2013, (2) reported matters related to

timekeeping irregularities on or about January 28, 2014, and (3) provided

testimony to the Inspector General on May 14, 2014; and (b) those activities were

a contributing factor in the agency’s decisions to (1) detail her away from her

CFO position pending an administrative investigation and (2) search her office.

IAF1, Tab 9; IAF2, Tab 7.

B. Applicable Law and Burdens of Proof

Based on the appellant’s claims to have made protected disclosures and

testified with the Inspector General, she has the burden to prove, by preponderant

evidence, that (a) she engaged in protected activity under 5 U.S.C. § 2302(b)(8)

and/or (b)(9)(C), and (b) such (b)(8) disclosure or (b)(9)(C) Inspector General

activity was a contributing factor in the personnel action(s) at issue. 5 U.S.C.

§ 1221(e)(1) (applying contributing factor standard to, inter alia, 2302(b)(8)

disclosures and (b)(9)(C) “cooperating with or disclosing information to the

Inspector General”); Whitmore v. Department of Labor , 680 F.3d 1353, 1364

(2012); Colbert v. Department of Veterans Affairs, 121 M.S.P.R. 677, ¶ 6 (2014).

A preponderance of the evidence is that amount of relevant evidence which a




10

reasonable person, considering the record as a whole, would accept as sufficient

to find that a contested fact is more likely true than untrue. 5 C.F.R. § 1201.4(q).

I informed the appellant of her burden of proof. IAF1, Tab 12.

Section 1221 provides that if the appellant meets her burden to establishthat prima facie case of whistleblower reprisal, then the Board must order

corrective action unless the agency rebuts that prima facie case by presenting

clear and convincing evidence that it would have taken the same personnel

action(s) in the absence of the disclosure. 5 U.S.C. § 1221(e)(1)(2); Whitmore ,

680 F.3d at 1364. Corrective action may include not only reinstatement in a

posit ion, which the appellant already obtained, but also back pay and related

benefits, medical costs incurred, travel expenses, any other reasonable and

foreseeable consequential damages, and compensatory damages. 5 U.S.C.

§ 1221(g)(1). Clear and convincing evidence is that measure or degree of proof

that produces in the mind of the trier of fact a firm belief as to the allegations

sought to be established. 5 C.F.R. § 1209.4(d). Evidence only clearly and

convincingly supports a conclusion when it does so in the aggregate considering

all the pertinent evidence in the record, and despite the evidence that fairly

detracts from that conclusion. Whitmore at 1368.

C. Findings of Fact

To resolve credibility issues, an administrative judge must identify the

factual questions in dispute, summarize the evidence on each disputed question,

state which version he believes, and explain in detail why he found the chosen

version more credible, considering such factors as: (1) the witness’s opportunity

and capacity to observe the event or act in question; (2) the witness’s character;

(3) any prior inconsistent statement by the witness; (4) a witness’s bias, or lack of

bias; (5) the contradiction of the witness’s version of events by other evidence or

its consistency with other evidence; (6) the inherent improbability of the

witness’s version of events; and (7) the witness’s demeanor. Hillen v.




11

Department of the Army, 35 M.S.P.R. 453, 458 (1987).1 Credibility

determinations properly made in one matter may be weighed in determining a

individual’s credibility in another matter. Hawkins v. Smithsonian Institution, 73

M.S.P.R. 397, 403-04 (1997).I find the following facts by preponderant evidence.

1. The appellant established by preponderant evidence that she made

disclosures protected by 5 U.S.C. § 2302(b)(8) and engaged in Inspector

General activity protected by 5 U.S.C. § 2302(b)(9)(C).

Section 2302(b) protects employees who make disclosures meeting the

criteria of paragraph (8), and protects employees who disclose information to an

Inspector General per paragraph (9)(C). 5 U.S.C. §§ 2302(b)(8), (b)(9)(C).

A (b)(8) disclosure is one that an appellant reasonably believes to evidence

a violation of any law, rule, or regulation; 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)(A); Chambers v. Department of the Interior , 515

F.3d 1362, 1367 (Fed. Cir. 2008); Whitmore, 680 F.3d at 1366-67. A reasonable

belief exists if a disinterested observer with knowledge of the essential facts

known to and readily ascertainable by the appellant could reasonably conclude

that the actions of the government evidence one of the categories in section

2302(b)(8)(A). Lachance v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999).

The Board has found that disclosures concerning alleged violations of

federal personnel law and merit systems principles may be protected. McDonnell

v. Department of Agriculture, 108 M.S.P.R. 443, ¶¶ 10-13 (2008) (appellant made

a nonfrivolous allegation that she made a protected disclosure because her alleged

1 Hearsay evidence is admissible in Board proceedings and may be accepted as

preponderant evidence even without corroboration if, to a reasonable mind, the

circumstances are such as to lend it credence. Social Security Administration v. Long,113 M.S.P.R. 190, ¶ 26 (2010).




12

disclosure concerned hiring and selection improprieties under 5 U.S.C. § 2301

that could have constituted prohibited personnel practices under 5 U.S.C. §

2302(b)(6) and (b)(12)). The Board has defined a 5 U.S.C. § 2302(b)(8)(A)(i)

“rule” to include agency policy or operating instructions. Rusin v. Department ofthe Treasury, 92 M.S.P.R. 298, ¶¶ 14-19 (2002). Time and attendance abuse is a

violation of law, rule, or regulation. DiGiorgio v. Department of the Navy, 84

M.S.P.R. 6, ¶ 14 (1999); Frederick v. Department of Veterans Affairs, 63

M.S.P.R. 563, 570 (1994). The specific issue under 5 U.S.C. § 2302(b)(8) is

whether the appellant reasonably believed that the information she disclosed

evidenced wrongdoing as described by Section 2302(b)(8); the appellant need not

prove the correctness of that belief. Chavez v. Department of Veterans Affairs,

120 M.S.P.R. 285, ¶ 18 (2013).

I conclude that all three of the appellant’s disclosures/activities were

protected by 5 U.S.C. § 2302(b)(8) or (b)(9)(C).

a. Activity 1 (Disclosure)

In analyzing this disclosure, I take guidance from the Board’s rulings in

Chavez, 120 M.S.P.R. 285. The Board stated that a reasonable belief exists if a

disinterested observer with knowledge of the essential facts known to and readily

ascertainable by the appellant could reasonably conclude that the actions of the

government evidence one of the categories of wrongdoing listed in section

2302(b)(8)(A). Id. at ¶ 18. Additionally, an appellant does not need to identify a

statutory or regulatory provision by title or number “when the employee’s

statements and the circumstances surrounding the making of those statements

clearly implicate an identifiable violation of law, rule, or regulation.” Id. at ¶ 19.

The first alleged disclosure is that on November 29, 2013 at 11:39 a.m., the

appellant sent an email that stated, in pertinent part:

Nonconcur. Why didn’t this go out to all services for a submission?

Why are the only new title 5 recommended approvals for PVAHCS

HR employees who coordinated the suspense and oversees the




13

program? There are other hard to fill title 5/Title 38 positions that

should be considered for this as well. This should go out to all

services for submission and ranked by pentad and/or Director before

submission.

IAF2, Tab 15 at 89 (emphasis added). In other words, the unit who was

responsible for administering student loan reimbursements appeared to be

receiving a disproportionate amount – if not the entirety – of the monies that the

agency had set aside for “recruitment incentives.” Id. at 88, 90. Robinson

testified that he perceived the appellant here to be reporting a violation of law,

rule, or regulation, and that he later received feedback from Schloendorn

acknowledging that the agency was not in compliance with SLRP requirements,

which prompted the agency, consistent with an audit that was conducted, to reviseits policies for oversight and administration of the SLRP. HCD, Robinson. The

agency admitted that “[t]he appellant determined that the program was not being

administered or managed appropriately by the Human Resources Department

resulting in Mr. Robinson, Associate Director, requesting an audit of the program

by the Compliance Office.” IAF2, Tab 15 at 78. Schloendorn received the

appellant’s email. IAF2, Tab 15 at 88. Based on these facts, I find that a

disinterested observer with knowledge of the essential facts known to and readily

ascertainable by the appellant could reasonably conclude that HR’s use of the

SLRP program for its own staff evidenced a violation of agency policy as well as

an abuse of authority. Chavez, 120 M.S.P.R. 285 at ¶ 18. Further, regardless of

the details of the appellant’s disclosure, I find preponderant evidence that the

appellant was at least perceived by Robinson and Schloendorn to have made a

protected disclosure.

In making that finding, I note that the appellant’s initial appeal form

described the disclosure in terms of being that she “reported to Robinson, by text

and email, her belief that a Student Loan Repayment (SLRP) suspense for FY

2014 Allocation contained a fraud .” IAF1, Tab 1 at 5 (emphasis added), Tab 9.

If the appellant told Robinson that the suspense actually “contained a fraud,” the




14

evidence of that is not before me, and the evidence that anyone other than

Robinson learned of her fraud allegation is also not before me. However, the

appellant’s submission of OSC’s closure letter reveals that her disclosure was

broader than fraud and encompassed an “abuse of the Student Loan RepaymentProgram.” IAF1, Tab 2 at 6. Further, the email chain related to the suspense

begins on November 19 and it ends on December 2, 2013, and I find that the first

time the appellant expressed her concerns about the program and refused to

concur with an approval, on November 29, 2013, she made a protected disclosure

by pointing out facts that appeared to evidence HR’s possible abuse of funds that

were intended for the entire medical center by using it solely for its own staff.

IAF2, Tab 15 at 89. At a minimum I find the appellant was perceived to have

made such a disclosure.

I do not find that the appellant’s later questions about the same program,

on the same November 29, 2013 date, in emails at 12:31 p.m., 12:35 p.m., 12:46

p.m., and 1:19 p.m., made protected disclosures insofar as they only raised

questions about circumstances in which she might be able to concur with the

approval. Id. at 85-87 (e.g., “If so, I can concur,” “before I approve”). My

distinction between the 11:39 a.m. email being protected and the later emails not

being protected is based not on the later timing of them, but on the fact that the

earlier, 11:39 a.m. email identified specific facts under which the appellant found

a concurrence not acceptable, while the later emails actually described conditions

under which she might be able to find a concurrence acceptable.

b. Activity 2 (Disclosure)

The second alleged disclosure is that on January 23, 2014, the appellant

reported “timekeeping irregularities” to Robinson, who forwarded her email to

Schloendorn on January 27, 2014. IAF2, Tab 15 at 94-95. I find the appellant’s

disclosures contained particularity and disclosed what she reasonably believed

evidenced violations of time and attendance policies. DiGiorgio, 84 M.S.P.R. 6




15

at ¶ 14; Frederick , 63 M.S.P.R. at 570. I assign persuasive value to the Board’s

nonprecedential remand order in English v. Small Business Administration , DE-

1221-15-0090-W-1 (April 8, 2015). The Board found that the English appellant

“had a reasonable belief that his disclosure evidenced a violation of law, rule, orregulation” when he disclosed that a coworker “came to work late, took extended

lunches, and left early.” Id. at ¶ 13. The Board reasoned:

Although the appellant did not clearly identify a specific law, rule, or

regulation, he provided sufficiently detailed statements to implicate

an identifiable violation of law, rule, or regulation. See Chavez v.

Department of Veterans Affairs, 120 M.S.P.R. 285, ¶ 18 (2013).

Id. at ¶ 13.

In making that finding, I note that the appellant’s initial appeal formindicated that the disclosure was her report to Robinson that the individual he had

tasked with fact finding into the irregularities had actually approved one of the

timecards in question. IAF1, Tab 1 at 5, Tab 9. In other words, the disclosure

appeared to be centered on a conflict of interest. However, OSC’s closure letter

describes the disclosure more broadly to be of “time and attendance

irregularities,” and that language appears in the subject line of every email sent

on the topic. IAF1, Tab 2 at 6; IAF2, Tab 15 at 92. Although I find the

appellant’s report of time and attendance irregularities were protected and within

the ambit of what she exhausted at OSC, I find her disclosure about a conflict of

interest (1) was of no more than a mere possible future conflict and (2) was not

shown to be transmitted beyond Robinson, who did not retaliate against the

appellant. First, I find no more than a mere possible future conflict of interest.

The email immediately following the appellant’s January 27, 2014 email is from

Masisak and states, “In order to make a determination of next steps as requested,

we will need the employees[’] names and all evidence of the issues found.” Id.

The appellant’s subsequent January 28, 2014 email to Robinson states that “Joe

[Masisak] was the approving official on the second timecard.” Id. I do not find

preponderant evidence that Masisak was yet aware of the possible conflict of




16

interest of his involvement, and I find no impropriety on his part in attempting to

resolve the timekeeping irregularity. Second, even if the appellant’s January 28,

2014 email to Robinson were a protected disclosure, there is no evidence that

Masisak, Schloendorn, or anyone else ever learned of the email, and as such, itwas not shown to be a contributing factor to the agency’s actions. Thus, the

protected disclosure here is limited to the appellant’s reports of time and

attendance irregularities.

c. Activity 3 (Inspector General)

Third, the appellant undisputedly provided testimony to the Inspector

General on May 14, 2014 in her office. HCD, Appellant; IAF2, Tab 15 at 79

(agency admission). Although the appellant testified as to the matters she

brought up during her interview, I find the contents of the interview are not

pertinent because she introduced no evidence that anybody ever learned of the

contents of her interview before the events of May 15, 2014. HCD, Appellant. I

find that her Inspector General testimony was plainly protected by 5 U.S.C.

§ 2302(b)(9)(C). Importantly, the appellant testified, without dispute, that on

May 12 or 13, 2014, Schloendorn came to her office and told her words to the

effect of “They’re going to get us all” for the perceived problems occurring at the

Phoenix office, and that the appellant’s response was to the effect of “They’re not

going to get me,” after which she told Schloendorn that she had unspecified

documentation, opened a drawer so Schloendorn could see the existence of that

documentation, and informed Schloendorn that she was going to be talking to the

Inspector General in the near future. HCD, Appellant. Moreover, as explained

further below, I find corroborating evidence by several witnesses indicating that

Schloendorn was the driving force behind the May 15, 2014 search and securing

of the appellant’s office. HCD, Daughetee, Nemcek.




17

2. The appellant established by preponderant evidence that her 2302(b)(8)

protected disclosures and (b)(9)(C) Inspector General activity were a

contributing factor in the agency’s actions.

An employee may demonstrate that a (b)(8) disclosure or (b)(9)(C)Inspector General activity was a contributing factor in a covered personnel action

through circumstantial evidence, such as the acting official’s knowledge of the

disclosure and the timing of the personnel action. Nasuti v. Department of State,

120 M.S.P.R. 588, ¶ 7 (2014); 5 U.S.C. § 1221(e)(1).

Importantly, an appellant may also show that a protected disclosure was a

contributing factor by proving that the official taking the action had constructive

knowledge of the protected disclosure, even if the official lacked actual

knowledge. Id. In Aquino v. Department of Homeland Security , 121 M.S.P.R.

35, (2014), the Board recognized that knowledge of disclosures can be imputed to

proposing and deciding officials under a cat’s paw theory. Aquino , 121 M.S.P.R.

35 at ¶ 21. In Aquino , the employee’s supervisor, after learning of his

disclosures, reported to “upper-level management” his supposed concerns about

the quality of the employee’s work performance, upon which the agency relied in

proposing and effectuating the employee’s removal. Id. The Board held that “an

appellant can demonstrate that a prohibited animus toward a whistleblower was a

contributing factor in a personnel action by showing by preponderant evidence

that an individual with knowledge of the appellant’s protected disclosure

influenced the deciding official accused of taking the personnel action.” Id. at

¶ 23. The Board ultimately held that the agency failed to show by clear and

convincing evidence that it would have removed the appellant in the absence of

his protected disclosure. Id. at ¶¶ 25-27.

The issue here is whether the appellant has established that her protected

activities were a contributing factor in the agency’s detail of her and related

search of her office; if she establishes such contributing factor, then she

establishes her prima facie case of whistleblower reprisal.




18

a. The appellant’s two protected disclosures were a contributing factor in

the agency’s detail of her and related search of her office.

I find the appellant’s two protected disclosures, made on November 29,

2013 about the Student Loan Repayment Program, and on January 23, 2014 abouttimekeeping irregularities, were a contributing factor in the agency’s decision to

detail her from her CFO position from May 15, 2014 and search her office on the

same day. The factor I find connecting the disclosures to the agency’s actions is

Schloendorn’s involvement in the detail and search.

Although it was Acting Medical Center Director Steve Young who made

the ultimate decision to detail the appellant, I find he did so because an

administrative investigation of the appellant was being planned and Schloendorn,

as well as Scherpf and others, advised him that a detail under the circumstances

was appropriate. IAF1, Tab 11 at 34; HCD, Scherpf. Young was not called by

either party as a witness. Likewise, although Network Director Susan Bowers

assembled the Administrative Investigation Board, and Bowers was not called by

either party as a witness, Scherpf testified without dispute that the “primary

driving force” behind the decision to open an investigation were anonymous

letters against the appellant that he received from Schloendorn, and that Veterans

Integration Service Network 18 (VISN 18) also received anonymous letters about

the appellant. IAF1, Tab 11 at 26-27; HCD, Scherpf. Scherpf testified that he

received the letters from Schloendorn “within the previous two weeks” of May

15, 2014, without providing further specification as to precisely when

Schloendorn gave him the documents. HCD, Scherpf.

At hearing, the agency asked Scherpf if the documents found from pages 99

through 107 of the appellant’s prehearing submissions were the four anonymous

letters he received, and he testified that they were. HCD, Scherpf (adducing

testimony about IAF2, Tab 15 at 99-107). The agency representative remarked at

hearing that page 105 appeared to be a duplicate of page 99, and after the

conclusion of the hearing, I ascertained that this section of pages contained an




19

additional duplicate at pages 106 through 107, duplicating pages 100 through

101. Id. Also after the conclusion of the hearing, I ascertained that the agency

had previously submitted four similar but – with one exception – not identical

documents that it contended formed the basis of Bowers’ decision to convene theAdministrative Investigation Board. IAF1, Tab 11 at 4-5, 9-24. Only exhibit 3 of

the agency’s original submissions, a May 8, 2014 anonymous letter about the

appellant, appeared to be identical to any of the four documents that the agency

reviewed with Scherpf at the Board hearing. Compare IAF1, Tab 11 at 19-21 to

IAF2 (agency prehearing submission), Tab 15 at 102-104 (appellant prehearing

submission, reviewed by Scherpf at hearing). However, I find that both sets of

documents – in the agency’s and the appellant’s prehearing submissions – accuse

the appellant of one form of wrongdoing or another, and that the existence of

additional documents is consistent with the larger context of Scherpf’s testimony

that (i) VISN-18 had also received some anonymous complaints about the

appellant and (ii) the agency had also received an allegation of a hostile work

environment from a member of the appellant’s staff. HCD, Scherpf; IAF1, Tab

11 at 23-24.

At bottom, I find that the appellant’s two disclosures were a contributing

factor in Young’s decision to detail the appellant and the agency’s related

decision to search her office because the detail and related search were based, in

large part, on Schloendorn’s recommendations, while the underlying

administrative investigation was based, in large part, on anonymous letters that

Schloendorn provided the agency. Aquino , 121 M.S.P.R. 35 at ¶¶ 21-27.

b. The appellant’s Inspector General testimony was a contributing factor in

the agency’s decision to search her office as part of the detail.

To be clear, I do not find the May 15, 2014 search of the appellant’s office

constitutes a significant change in working conditions under 5 U.S.C.

§ 2302(a)(2)(A)(xii). However, because I find the agency’s search was part and




20

parcel of its detail, I explain my finding of contributing factor for this component

of the detail here. Cf. Carter v. Department of the Army , 62 M.S.P.R. 393, 408

(1994).

I find no connection between the appellant’s Inspector General testimonyand the agency’s decision to detail her, but I do find a contributing factor

between that testimony and the agency’s related decision to search her office.

First, I do not find that the appellant’s May 14, 2014 Inspector General

testimony was a contributing factor in the agency’s May 15, 2014 decision to

detail her, because there is no evidence that anybody learned of that impending

activity until Schloendorn did so on May 12 or 13, 2014, per the appellant’s own

testimony, and the evidence does not preponderantly establish that any of

Schloendorn’s involvement in getting the appellant investigated and detailed

occurred after May 12 or 13, 2014. HCD, Appellant. Instead, the only evidence

on timing is that Scherpf received the anonymous letters from Schloendorn

sometime in the two weeks prior to May 15, 2014. HCD, Scherpf. Although that

leaves open the possibility that he received the letters after May 12 or 13, 2014, I

find it more likely that he – or at least VISN 18 – received at least some of the

letters prior to May 12 or 13, 2014. This finding is consistent with the agency’s

documentary evidence indicating that VISN 18 received one of the anonymous

letters on April 13, 2014, another on May 2, 2014, and another on or after May 8,

2014. IAF1, Tab 11 at 4, 10-19.

Second, I do find that the appellant’s May 14, 2014 Inspector General

testimony – along with her prior two disclosures – were a contributing factor in

the agency’s May 15, 2014 decision to search her office. In so finding, I

recognize that the evidence is not clear as to whether the appellant told

Schloendorn of the specific date that she was to testify, such that Schloendorn

would have known for certain that the testimony had already been taken by the

time she recommended detailing the appellant. However, that degree of

specificity is not necessary in light of the Board’s holding in Special Counsel v.




21

Nielson that retaliation for intent to exercise rights protected by 5 U.S.C.

§ 2302(b)(9) is prohibited by the statute. Nielson, 71 M.S.P.R. 161, 179-80

(1996).

In finding a connection between the appellant’s May 14, 2014 testimonyand the agency’s May 15, 2014 search of her office, I have considered the

following. First, the appellant’s testimony was unrebutted that after Schloendorn

expressed concern about the agency getting “us all,” the appellant said that the

agency would not “get” the appellant because she had evidence to protect her, and

the appellant showed Schloendorn exactly where that evidence was in her office

drawer. HCD, Appellant. Second, that testimony is consistent with Nemcek’s

July 3, 2014 written statement; Nemcek wrote:

Maria expressed a concern that Tonja had not turned in her keys and

that she still had access to her office and that she may remove, or

have someone else remove documents from her office. Maria began

to explain a prior event that occurred while she was in Ton[j]a’s

office with Tonja. During this event, Maria explained that Tonja had

informed Maria that she had documents in her filing cabinet as a way

to document things, Maria further explained that Tonja opened up

the filing cabinet to show her where these documents were. After

explaining this event, Maria restated her concern that Tonja may

remove, or have someone else remove documents from her office.The conversation began to deviate from the discussion of documents

when someone in the office asked about whether or not the acting

supervisors (Ms. Debbie Simon and Ms. Kelli Hagen) had access to

the office in case they needed to access any documents or work

products. It was discussed that they should be able to access the

office to ensure that there was not a disruption of operations. Maria

reexpressed her concern that Tonja had not turned in her keys and

that she still had access to her office and that she may remove, or

have someone else, remove documents from her office. Maria

expressed her concern that Tonja could come in during the night orover the weekend to remove documents from her office. Maria

specifically mentioned that Tonja may have her assistant, Roz,

remove things for her. After Maria mentioned for the third time her

concern that Tonja would remove, or have someone else remove

these documents, I suggested having the documents that she was

concerned about secured and removed from Tonja’s office. … Maria




22

asked who should remove and secure the documents. Joe [Masisak],

Rod [Daughetee], and I all agreed that HRMS should not be involved

with the removal and securing of the documents. Maria then asked if

she should call Chief Scott Neibauer and ask him about removing

and securing the documents.

IAF1, Tab 11 at 54; HCD, Nemcek. Third, Nemcek prepared that statement at the

request of Schloendorn – against her interest as an employee of Schloendorn’s at

the time – and Schloendorn is not known to have ever refuted it. IAF1, Tab 11 at

52 (Nemceck wrote that “Maria … asked me to provide her with a report of

contact of everything that I remembered, because she did remember and that she

was fuzzy on the details”). Fourth, Daughetee admitted that Schloendorn made at

least one remark that the appellant has a large quantity of files in her office,

although I found his description of the context of that remark to be somewhat

hard to believe. HCD, Daughetee. Daughetee testified that Schloendorn stated

that the appellant “documents judiciously,” but when he was asked what he

understood that to imply, he was not helpful. Id. Daughetee testified that he

perceived Schloendorn to simply be trying to “make us aware,” and stated words

to the effect of, “I don’t believe we acted on the comment,” seemingly implying

that he perceived Schloendorn to want more than a mere transfer of files to theacting officers so they could do their jobs. Id. However, when Daughetee was

asked why Schloendorn would need to make everybody “aware” of the

appellant’s documentation, he answered only, “You’d have to ask Maria; it

wasn’t my comment.” Id.

Fifth, Detective Mueller’s documentation reported the following occurred

on May 15, 2014:

Daughetee related a complaint was alleged that Laney had kept fileson employees who had filed complaints against Laney and was

currently engaged in a Whistleblower reprisal issue currently

addressed by the VISN 18 staff.

Daughetee related he was tasked to have Laney’s office area secured

and examined for files pertaining to her employees. …

* * *




23

I suggested Hagen, Simon and I examine the office with the

understanding that the scope of the search was for files for

employees.

IAF1, Tab 11 at 38. Based on the context of these remarks about “files pertaining

to her employees,” I find that Mueller was referring not to work product

necessary for the appellant’s replacements of Simon and Hagen to perform her

work, but to files that were specific in nature to individual employees and not

related to the appellant’s everyday job duties. I have considered Mueller’s

testimony to the contrary that the purpose of the office search was simply to look

for active work product to enable Simon and Hagen to ascertain their new

responsibilities. HCD, Mueller. Observing Mueller testify that his report’s

references to “files on employees” and “files for employees” was simply a “poor

word choice,” I did not believe him – especially because of his preceding written

statement that there was a concern that “Laney had kept files on employees who

had filed complaints against Laney.” Id.

Sixth, I have considered the testimony of both Daughetee and Detective

Mueller that Simon and Hagen expressed interest in searching the appellant’s

office and that it was actually Simon and Hagen that flagged the questionable

items they found. HCD, Daughetee, Mueller. Daughetee and Mueller’s

testimony was contrary to the thrust of Simon and Hagen’s testimony that (i)

although they wanted to know what was expected of them since that they were

quite suddenly thrown in to substitute for the appellant in her absence; and (ii)

although they recognized the value of seeing what files were in the appellant’s

office to accomplish that; (iii) they nonetheless did not propose the search, did

not actively flag questionable items, and they conducted the search only under

Mueller’s guidance and suggestion as to how they conduct a search. HCD,

Simon, Hagen. I find it improbable that Simon and Hagen would, upon

unexpected notice that they were substituting for their supervisor, actively

propose and pursue an aggressive search of their supervisor’s office, and take the




24

initiative to actively point out items that could be deemed “questionable” to the

supervising or “observing” detective. Based on the inherent improbability of that

scenario, as well as the demeanor of all four witnesses, I did not believe

Mueller’s and Daughetee’s suggestions that Simon and Hagen took the lead onthe search. Viewing the totality of the evidence, I find that Schloendorn was the

driving force behind getting others to search the appellant’s office, and that

Daughetee and Mueller unwittingly became the instruments of Schloendorn’s

desire to retaliate against the appellant. Because Schloendorn knew that the

appellant was planning to, or had already, spoken with the Inspector General at

the time she instigated the search of the appellant’s office, I find the appellant’s

Inspector General activity was a contributing factor to the agency’s ultimate

decision to search her office.

D. The agency has failed to establish by clear and convincing evidence that it

would have detailed the appellant and conducted the related search of her

office absent her protected (b)(8) disclosures and (b)(9)(C) activity.

In determining whether an agency has shown by clear and convincing

evidence that it would have taken the same personnel action in the absence of

whistleblowing, the Board will consider the following factors: (1) the strength of

the agency’s evidence in support of its action; (2) the existence and strength of

any motive to retaliate on the part of the agency officials who were involved in

the decision; and (3) any evidence that the agency takes similar actions against

employees who are not whistleblowers but who are otherwise similarly situated.

Chambers v. Department of the Interior , 116 M.S.P.R. 17 at ¶ 29 (2011); Carr v.

Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999); Whitmore ,

680 F.3d at 1365.

I accept that Young’s May 15, 2014 decision to detail the appellant was

because the agency was going to be investigating the appellant for misconduct “of

a very serious nature,” and keeping her in her office while the agency interviewed




25

members of her staff would be “inappropriate.” IAF1, Tab 11 at 34. I find

Young’s reason to be an objectively strong reason in light of the allegations with

which the Administrative Investigation Board was going to be dealing. IAF1,

Tab 11 at 26; IAF2, Tab 15 at 372. I find no indication that Young or Scherpfwere aware of the appellant’s protected disclosures or activity, and Scherpf

denied having any indication that Schloendorn was acting on any bad motive in

bringing the anonymous letters to him. HCD, Scherpf. Additionally, Scherpf

testified generally that the agency has detailed other employees who were under

investigation, although he acknowledged that the decision to detail is not

automatic but is done on a case-by-case basis. Id. I find these circumstances

lend some weight to Carr factor 1, strength of the agency’s reasons, and Carr

factor 3, evidence of others who did not blow the whistle but who were subjected

to the same action. Nonetheless, I do not find that the agency ultimately

presented a specific example for Carr factor 3, i.e., any non-whistleblower who

was detailed and had her office searched.

Notwithstanding my above findings under Carr , I find that most of the

agency’s evidence pertaining to Carr factor 1 is quite weak, and that the evidence

pertaining to Carr factor 2 – existence of motive to retaliate – is quite strong and

outweighs Carr factor 1. Although I believe that Young and Scherpf acted

innocently in detailing the appellant, I find the cat’s paw principles set forth in

Aquino make their innocence quite irrelevant to the agency’s liability in this case.

Aquino, 121 M.S.P.R. 35 at ¶ 21. I find the appellant’s detail was the result of

the agency’s investigation, which was the result of the allegations against the

appellant, which primarily came from Schloendorn. I have considered the fact

that the appellant’s November 29, 2013 and January 23, 2014 disclosures

implicated Schloendorn’s office, as well as Pokorny’s testimony that Schloendorn

had told her that she was “really upset about” the issue related to the questionable

timecards. HCD, Pokorny. I have considered Robinson’s testimony that

Schloendorn “definitely had problems” with the appellant’s identification of




26

problems in HR and that the problems produced tension between Schloendorn and

the appellant. HCD, Robinson. I have considered Scherpf’s recollection that the

administrative investigation into the appellant was based primarily on anonymous

letters he received from Schloendorn. HCD, Scherpf. I have consideredPokorny’s testimony that Schloendorn actually told her on earlier occasions that

Schloendorn had submitted anonymous letters at various points about various

individuals and, specific to the appellant, had gotten another section chief to

submit an anonymous letter that accused the appellant of having sex in her office.

I have considered the evidence that Schloendorn had previously conducted her

own fact findings into some of the same supposed allegations, and yet she failed

to disclose that to the Administrative Investigation Board until late into its

process. IAF2, Tab 15 at 373, 375.

I have also considered the somewhat odd fact that, according to Robinson,

when Schloendorn had previously conducted fact findings into the appellant, she

never substantiated an allegation against the appellant. HCD, Robinson. That

fact, viewed in isolation, might tend to show that Schloendorn bore the appellant

no malice. However, I find far more significant the fact that Schloendorn brought

these same matters back to officials higher in the agency’s chain of command

without ever disclosing the quite significant fact that she already had previously

investigated the allegations and declared them unsubstantiated. IAF2, Tab 15 at

373, 375 (noting need to interview Schloendorn three times “given the numerous

times her name was brought up in the sworn testimonies, where she was the

source of pertinent information”); HCD, Robinson (noting that Schloendorn did

not substantiate the claims she investigated).

I have considered the evidence of Schloendorn’s willingness to retaliate

against employees for other forms of protected activity. First, Pokorny testified

that when she first arrived at Schloendorn’s office and became her subordinate,

Schloendorn told Pokorny that she wanted her to put one of her employees on a

performance improvement plan because Schloendorn wanted that employee




27

“gone” because the employee had filed multiple equal employment opportunity

(EEO) complaints against Schloendorn. Second, by the agency’s admission, “On

January 21, 2015, the EEOC issued a decision in which Maria Schloendorn was

found to have committed reprisal based on an employee’s protected activity.”IAF2, Tab 15 at 385.

I have considered the fact that it is somewhat convenient for the appellant

that Pokorny was able to testify that Schloendorn admitted to not only fabricating

evidence about the appellant and others, but also to retaliating against another

employee for EEO activity. However, I find the evidence of Schloendorn’s

fabrications is quite consistent with the findings of the Administrative

Investigation Board as well as the EEOC, and under these circumstances, I

believed Pokorny’s testimony.

I have considered the oddity of both Detective Mueller’s and Daughetee’s

testimonies to the extent they attributed (i) the decision to search the appellant’s

office to Simon and Hagen, and (ii) the discovery of questionable materials to

Simon and Hagen’s active flagging of them. I found Mueller and Daughetee’s

testimony to be so contrary to what was most plausible to have happened and to

what Mueller’s own July 2014 report indicated about the search for employee

files, that I found it difficult to accept Mueller and Daughetee’s version of events.

In sum, I find far too many deficiencies in the agency’s limited evidence to

permit me to conclude that the evidence clearly and convincingly shows that the

agency would have taken the same actions even in the absence of the appellant’s

whistleblowing and IG activity. Thus, I find the appellant has proven her claims

that her May 14, 2014 detail and related search of her office were reprisal for her

Section 2302(b)(8) protected disclosures and (b)(9)(C) Inspector General activity.

DECISION

I find the agency’s detail of the appellant out of her CFO position and

related search of her office was reprisal in violation of 5 U.S.C. §§ 2302(b)(8)




28

and (b)(9)(C). In accordance with the below parameters, the appellant may file a

motion for initiation of an addendum proceeding on damages, pursuant to the

below provisions. The full measure of appropriate corrective action will be

determined in the addendum proceeding, if instituted by the appellant.

FOR THE BOARD: /S/_____________________________

David S. Brooks

Administrative Judge

NOTICE TO PARTIES CONCERNING SETTLEMENT

The date that this initial decision becomes final, which is set forth below, is

the last day that the parties may file a settlement agreement, but the

administrative judge may vacate the initial decision in order to accept such an

agreement into the record after that date. See 5 C.F.R. § 1201.112(a)(4).

NOTICE TO APPELLANT

This initial decision will become final on November 18, 2015, unless a

petition for review is filed by that date. This is an important date because it is

usually the last day on which you can file a petition for review with the Board.

However, if you prove that you received this initial decision more than 5 days

after the date of issuance, you may file a petition for review within 30 days after

the date you actually receive the initial decision. If you are represented, the 30-

day period begins to run upon either your receipt of the initial decision or its

receipt by your representative, whichever comes first. You must establish the

date on which you or your representative received it. The date on which theinitial decision becomes final also controls when you can file a petition for

review with the Court of Appeals. The paragraphs that follow tell you how and

when to file with the Board or the federal court. These instructions are important




29

because if you wish to file a petition, you must file it within the proper time

period.

BOARD REVIEW

You may request Board review of this initial decision by filing a petition

for review.

If the other party has already filed a timely petition for review, you may

file a cross petition for review. Your petition or cross petition for review must

state your objections to the initial decision, supported by references to applicable

laws, regulations, and the record. You must file it with:

The Clerk of the Board

Merit Systems Protection Board1615 M Street, NW.

Washington, DC 20419

A petition or cross petition for review may be filed by mail, facsimile (fax),

personal or commercial delivery, or electronic filing. A petition submitted by

electronic filing must comply with the requirements of 5 C.F.R. § 1201.14, and

may only be accomplished at the Board's e-Appeal website

(https://e-appeal.mspb.gov ).

Criteria for Granting a Petition or Cross Petition for Review

Pursuant to 5 C.F.R. § 1201.115, the Board normally wil l consider only

issues raised in a timely filed petition or cross petition for review. Situations in

which the Board may grant a petition or cross petition for review include, but are

not limited to, a showing that:

(a) The initial decision contains erroneous findings of material fact. (1)

Any alleged factual error must be material, meaning of sufficient weight to

warrant an outcome different from that of the initial decision. (2) A petitioner

who alleges that the judge made erroneous findings of material fact must explain

why the challenged factual determination is incorrect and identify specific

evidence in the record that demonstrates the error. In reviewing a claim of an


https://e-appeal.mspb.gov/

https://e-appeal.mspb.gov/



30

erroneous finding of fact, the Board will give deference to an administrative

judge’s credibility determinations when they are based, explicitly or implicitly,

on the observation of the demeanor of witnesses testifying at a hearing.

(b) The initial decision is based on an erroneous interpretation of statute orregulation or the erroneous application of the law to the facts of the case. The

petitioner must explain how the error affected the outcome of the case.

(c) 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.

(d) New and material evidence or legal argument is available that, despite

the petitioner’s due diligence, was not available when the record closed. To

constitute new evidence, the information contained in the documents, not just the

documents themselves, must have been unavailable despite due diligence when

the record closed.

As stated in 5 C.F.R. § 1201.114(h), a petition for review, a cross petition

for review, or a response to a petition for review, whether computer generated,

typed, or handwritten, is limited to 30 pages or 7500 words, whichever is less. A

reply to a response to a petition for review is limited to 15 pages or 3750 words,

whichever is less. Computer generated and typed pleadings must use no less than

12 point typeface and 1-inch margins and must be double spaced and only use one

side of a page. The length limitation is exclusive of any table of contents, table of

authorities, attachments, and certificate of service. A request for leave to file a

pleading that exceeds the limitations prescribed in this paragraph must be

received by the Clerk of the Board at least 3 days before the filing deadline. Such

requests must give the reasons for a waiver as well as the desired length of the

pleading and are granted only in exceptional circumstances. The page and word

limits set forth above are maximum limits. Parties are not expected or required to

submit pleadings of the maximum length. Typically, a well-written petition for

review is between 5 and 10 pages long.




31

If you file a petition or cross petition for review, the Board will obtain the

record in your case from the administrative judge and you should not submit

anything to the Board that is already part of the record. A petition for review

must be filed with the Clerk of the Board no later than the date this initialdecision becomes final, or if this initial decision is received by you or your

representative more than 5 days after the date of issuance, 30 days after the date

you or your representative actually received the initial decision, whichever was

first. If you claim that you and your representative both received this decision

more than 5 days after its issuance, you have the burden to prove to the Board the

earlier date of receipt. You must also show that any delay in receiving the initial

decision was not due to the deliberate evasion of receipt. You may meet your

burden by filing evidence and argument, sworn or under penalty of perjury (see 5

C.F.R. Part 1201, Appendix 4) to support your claim. The date of filing by mail

is determined by the postmark date. The date of filing by fax or by electronic

filing is the date of submission. The date of filing by personal delivery is the

date on which the Board receives the document. The date of filing by commercial

delivery is the date the document was delivered to the commercial delivery

service. Your petition may be rejected and returned to you if you fail to provide

a statement of how you served your petition on the other party. See 5 C.F.R.

§ 1201.4(j). If the petition is filed electronically, the online process itself will

serve the petition on other e-filers. See 5 C.F.R. § 1201.14(j)(1).

A cross petition for review must be filed within 25 days after the date of

service of the petition for review.

DAMAGESThe Board may, in a case in which it orders corrective action under 5

U.S.C. § 1221 as a result of a prohibited personnel practice described in 5 U.S.C.

§§ 2302(b)(8) or 2302(b)(9)(A)(i), (B), (C), or (D), award “reasonable and

foreseeable consequential damages, and compensatory damages (including




32

interest, reasonable expert witness fees, and costs).” 5 U.S.C. §

1221(g)(1)(A)(ii). See, e.g., Porter v. Department of the Treasury, 80 M.S.P.R.

606 (1999); Walton v. Department of Agriculture, 78 M.S.P.R. 401 (1998).

Consequential damages may be awarded for pecuniary losses to reimbursethe appellant for specific losses and expenses resulting from the unjustified

retaliatory conduct. They may include the payment of back pay and related

benefits, medical costs incurred, travel expenses, and any other reasonable and

foreseeable pecuniary losses. Consequential damage awards do not include

nonpecuniary injuries such as emotional or mental distress. All compensable

losses must be directly or proximately caused by the retaliatory agency action at

issue.

Consequential damage awards for pecuniary losses are to reimburse a

victim for actual monetary harm and are limited to the losses proven to have been

caused by the retaliatory action. An appellant must submit proof of pecuniary

damages which are quantifiable and usually can be objectively documented.

Compensatory damages may be awarded for all pecuniary losses and some

nonpecuniary losses. All compensable losses must be directly or proximately

caused by the retaliatory agency action at issue.

Nonpecuniary losses are not subject to precise quantification and include,

but are not necessarily limited to, emotional pain, suffering, inconvenience,

mental anguish, injury to character and reputation, and loss of enjoyment of life.

There are no formulas for determining the amount of nonpecuniary losses, but

such awards should reflect the extent to which the retaliatory act caused the harm

in relation to the extent other factors might also have caused the harm. An award

should also take into consideration the nature, severity, and duration of the harm.

If pecuniary or nonpecuniary damages are claimed, appellant must submit

proof of them. Pecuniary damages are quantifiable and usually can be objectively

documented. Nonpecuniary damages may be established by documentary

evidence, but also by statements from appellant and others including family




33

members, friends, health care providers, counselors, or clergy. Per 5 C.F.R.

§ 1201.204(e)(1), a motion for initiation of an addendum proceeding to decide a

request for consequential, liquidated, or compensatory damages must be filed as

soon as possible after a final decision of the Board but no later than 60 days afterthe date on which a decision becomes final. Where the initial decision in the

proceeding on the merits was issued by a judge in a MSPB regional or field

office, the motion must be filed with the regional or field office that issued the

initial decision. Where the decision in the proceeding on the merits was an initial

decision issued by a judge at the Board's headquarters or where the only decision

was a final decision issued by the Board, the motion must be filed with the Clerk

of the Board. Any such motion must be prepared in accordance with the

provisions of 5 C.F.R. Part 1201, Subpart H, and applicable case law.

NOTICE TO AGENCY/INTERVENOR

The agency or intervenor may file a petition for review of this initial

decision in accordance with the Board's regulations.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTSYou have the right to request review of this final decision by the United

States Court of Appeals for the Federal Circuit.

The court must receive your request for review no later than 60 calendar

days after the date this initial decision becomes final. 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 want to request review of this decision concerning your claims of

prohibited personnel practices under 5 U.S.C. § 2302(b)(8), (b)(9)(A)(i),




34

(b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge the Board’s

disposition of any other claims of prohibited personnel practices, you may request

review of this decision only after it becomes final by filing in the United States

Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction. The court of appeals must receive your petition for review within 60

days after the date on which this decision becomes final. See 5 U.S.C.

§ 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose to file, be very careful

to file on time. You may choose to request review of the Board’s decision in the

United States Court of Appeals for the Federal Circuit or any other court of

appeals of competent jurisdiction, but not both. Once you choose to seek review

in one court of appeals, you may be precluded from seeking review in any other

court.

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 about the United States Court of Appeals for the Federal

Circuit 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.

Additional information about other courts of appeals can be found at their

respective websites, which can be accessed through

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

If you are interested in securing pro bono representation for your court

appeal, that is, representation at no cost to you, the Federal Circuit Bar

Association may be able to assist you in finding an attorney. To find out more,

please click on this link or paste it into the address bar on your browser:


http://www.mspb.gov/appeals/uscode/htm

http://www.cafc.uscourts.gov/

http://www.cafc.uscourts.gov/index.php?option=com_content&view=article&id=191&Itemid=102


http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx



http://www.cafc.uscourts.gov/

http://www.mspb.gov/appeals/uscode/htm



35

http://www.fedcirbar.org/olc/pub/LVFC/cpages/misc/govt_bono.jsp

The Merit Systems Protection Board neither endorses the services provided

by any attorney nor warrants that any attorney will accept representation in a

given case.







DEPARTMENT OF

VETERANS AFFAIRSMemorandum

Date: July 23, 2014

From: Chair, Interdisciplinary Crisis Response Team (ICRT)

Subj: Administrative Investigation of Alleged Whistleblower Reprisal

To: Michael Culpepper and John Davis

1. You are hereby appointed to investigate the complaint of whistleblower reprisal madeby Paula Pedene, Public Affairs Officer, Phoenix VA Health Care System. Your investigation will be focused on Ms. Pedene’s reprisal complaint rather than thesubstance of the underlying whistleblowing allegations themselves.

2. This memorandum authorizes you to inquire into all aspects of the matter describedabove, to require VA employees to cooperate with you; to require all employeeshaving any knowledge of the complaint to furnish testimony under oath or affirmationwithout a pledge of confidentiality; to obtain voluntary sworn testimony from other individuals; to administer oaths and affirmations; and to gather other evidence thatyou determine is necessary and relevant. These authorities are delegated for thepurposes and duration of this investigation only.

3. Your investigation shall be conducted and reported in accordance with VA Directiveand Handbook 0700.

4. On-site investigation should begin within ten days of the date of this memorandum.You shall submit your completed report and investigative file to me within 30 days of the date of this memorandum unless an extension is granted.

Meghan FlanzICRT Chair

Letter to Ms. Paula Stokes, AIB Chairperson Attachment 1, p. 1




VA FORMMAR 1989

2105

Date: October 30, 2014

From: Mike Culpepper, Co-Chair, Office of Accountability Review

Subj: Report of Investigation – Alleged Whistleblower Reprisal, Phoenix VA HealthCare System

To: Secretary of Veterans AffairsThru: Meghan Serwin Flanz, Co-Chair, Office of Accountability Review

Leigh Bradley, Special Counsel

1. Purpose: The purpose of this memo is to provide findings concerning the

subject referral as directed by your appointment memo dated July 23, 2014 (Ex.1).

2. Scope: The investigation was convened to review the facts andcircumstances surrounding the whistleblower reprisal complaint made by PaulaPedene, Public Affairs Officer, GS-13, Phoenix VA Health Care System(PVAHCS). As directed, the investigation focused on Ms. Pedene’s reprisalcomplaint rather than the substance of the underlying disclosures.

3. Disclosures:

Ms. Pedene testified before an administrative investigation board (AIB) inMay 2011 in connection with multiple allegations of misconduct andmismanagement involving then Medical Center Director, Gabriel Perez,then Associate Director, Christopher Bacorn, and a variety of other employees (Ex. 2 and Ex. 2a).

1

Also in May 2011, Ms. Pedene, at the request of then Interim MedicalCenter Director, Dr. James Robbins, submitted written recommendationsto restore staffing, funding, and other resources to the Public Affairs (PA)reduce Office that she believed had been removed during Mr. Perez’s

1 The AIB report was issued September 23, 2011. The Board substantiated multiple allegations involving Mr.

Perez and Dr. Bacorn, including mismanagement of the fee-basis program and inappropriate behavior. However,the Board did not find that Ms. Pedene was the victim of a hostile work environment. Specifically with regard to

Ms. Pedene’s claims, the AIB found that her allegations (i.e. budget reduction, organizational realignment from

Director to Associate Director, decreased involvement in Veterans Day parade, reduced travel, etc.) were withinthe Director’s authority to make decisions regarding how the Public Affairs program should operate within the

existing environment of the organization (Ex. 2, p. 8). On November 8, 2011, the VA Office of Inspector

General issued Report No. 11-02280-23 in which it substantiated that PVAHCS mismanaged Non-VA Fee CareProgram funds resulting in a budget shortfall of $11.4 million (Ex. 3).

Memorandum

Department of

Veterans Affairs





2

tenure2 (Ex. 4). Mr. Robinson acknowledged during his testimony in an

AIB on July 11, 2013 that Ms. Pedene had repeatedly expressedconcerns about how she had been treated by Mr. Perez and Dr. Bacornand he (Mr. Robinson) was familiar with the recommendations she

submitted to restore the PAO function. Mr. Robinson further testified thatit was going to be very difficult for the facility to satisfactorily resolve allthe issues Ms. Pedene raised and his goal was to address what wasneeded to get the PAO back on track and move forward (Ex. 5 and Ex.6h, p. 12, line 12 – p. 13, line 13).

In July 2011, Ms. Pedene submitted a memo to the VISN 18 Director inwhich she complained that Mr. Bacorn continued to perpetuate the hostilework environment initiated by Mr. Perez (Ex. 7).

In November 2011, Ms. Pedene submitted a memo to Susan Bowers,

then VISN 18 Director, informing Ms. Bowers about a lack of action inrestoring the PAO function (Ex. 8).

3

Subsequently, Ms. Pedene filed an equal employment opportunitycomplaint against Ms. Bowers, Dr. Robbins, and then interim AssociateDirector, Lance Robinson, for failure to restore the PA function (Ex. 9, p.100, line 6 – p. 101, line 20).

4

Ms. Pedene testified that she also informed current PVAHCS Director,Sharon Helman, in March/April 2012, about the issues that had arisenunder Mr. Perez’s leadership and that Mr. Robinson was aware of theissues since he had previously served as interim Associate Director (Ex.9, p. 9, line 13 – p. 11).

4. Retaliation Allegations Provided by Office of Special Counsel (OSC):

In mid-to-late 2012, Associate Director Lance Robinson reduced Ms.Pedene’s staff and budget and threatened to discipline her when she told Mr.Robinson that the reason for the reduction was a pretext for retaliation.

On December 10, 2012, Mr. Robinson notified Ms. Pedene that she wasbeing temporarily reassigned for an initial period of 30 days to EducationService. The stated reason for the reassignment was a reported computer

2 See Footnote 1 and Ex. 2 showing that the AIB found the PAO staffing and budget reductions were not the

product of a hostile work environment.3 Office of Special Counsel indicated that Ms. Pedene, along with Dr. Samuel Foote, another PVAHCSemployee, also submitted information to Ms. Bowers in January 2012 concerning financial improprieties and the

hostile work environment and discrimination perpetrated by PVAHCS managers.4 Ms. Pedene subsequently withdrew the complaint in February 2012. Ms. Pedene alleged during her testimonythat Assistant Director John Scherpf encouraged her to withdraw the complaint (Ex. 9, p. 99, line 13, p. 105, line

7). This issue is discussed in “Findings of Fact”, paragraph 9 herein.





3

security violation when Ms. Pedene (who is legally blind) allowed her husband,an official VA volunteer, to access her computer to transfer pictures he took ofthe Phoenix VA [sic] Parade, into a PowerPoint presentation. Mr. Robinsonconducted an extensive investigation into all aspects of Ms. Pedene’s

supervision of the Phoenix PAO, including an audit of all purchases Ms.Pedene’s office staff made going back several years (Ex. 10.)

On November 6, 2013, Mr. Robinson issued Ms. Pedene (who was still ontemporary reassignment to lower graded administrative duties) written noticeof her proposed demotion (Ex. 11 and Ex. 46).

5

5. Method of Inquiry: The following employees were interviewed by telephone:6

Susan Hall, Administrative Officer for Mental Health Service, Northern Arizona VA Health Care System, Prescott, AZ

7

Mary Monet, Privacy Officer Tonja Laney, Chief Financial Officer Paula Pedene, Public Affairs Officer John Scherpf, Assistant Director Jennifer (Russoniello) Smith, Police Officer

8

Sam Trottier, Chief, Patient Operations9

Robin Getzendanner, Program Analyst, Incident Resolution Team, alsoresponded to a series of written questions and provided documentationregarding the alleged unauthorized computer access and privacy violations.

Exhibits are identified in a separate listing.

6. Facts – Allegation that Associate Director Lance Robinson reduced Ms.Pedene’s staff and budget in mid-to-late 2012 and threatened to discipline herwhen she told Mr. Robinson that the reason for the reduction was a pretext forretaliation.

10

a. On August 15, 2012, Ms. Pedene e-mailed Mr. Robinson, noted that shehad lost two positions under the former Director, and requested to speak withhim about getting those positions back. As an option, Ms. Pedene suggested

5 At OSC’s request, VA agreed to delay the processing of the proposed demotion until OSC had sufficient time toreview Ms. Pedene’s whistleblower retaliation complaint. The retaliation complaint was subsequently resolved

pursuant to a settlement agreement and a decision was never rendered in the proposed demotion.6 Unless otherwise indicated, all persons interviewed are employed at the PVAHCS. Ms. Pedene’s interview was

conducted under oath. Other witness interviews were unsworn.7 Ms. Hall formerly served as the Administrative Officer, PVAHCS, during the relevant time period.8 Ms. Smith (formerly Russoniello) previously served as the EEO Program Manager at PVAHCS.9 Mr. Trottier previously served as the Administrative Officer for Ambulatory Care Service at PVAHCS and was

the certifying official for PAO purchases for six years.10 Mr. Robinson served as interim Associate Director from October 23, 2011 until February 28, 2012. He was

selected as the permanent Associate Director effective May 6, 2012.





4

hiring two temporary GS-4 clerks. Mr. Robinson responded that he supportedthe concept and recommended that she include her request in her FY 2013business plan. On the same e-mail string, Ms. Pedene later added that shealso really needed a staff person or contractor on board by September 1,

2012 to assist with the magnitude of the [Veterans Day] parade.11 Mr.Robinson responded that: “We should not be hiring staff for the parade. Thatis not a valid reason for using medical support appropriation funding whichthis would come out of.” After some further discussion, in which Ms. Pedeneidentified other general activities supporting patient education in which thestaff assistant would also be involved, Mr. Robinson reiterated his positionthat parade support shouldn't be the primary role of the position (Ex. 12).

b. Ms. Pedene’s budget request for FY13 was $136,500 representing a 16%increase from FY12. The amount approved was $96,938 which was the sameas her previous year’s budget. She also requested three additional full-time

equivalent employees (FTEE) including an Audio Visual Production Specialist(GS 9/11) and 2 Clerks (GS-4) which were not approved (Ex. 13).

c. Ms. Pedene testified her FY 2013 budget was reduced by $25,000 andshe was not permitted to hire another technical career field (TCF) intern afterthe incumbent found another position

12 (Ex. 9, p. 43, line 16 - p. 47, line 5; p.

82, lines 10-18). Although Ms. Pedene believes these actions wereretaliatory, she testified she did not communicate her belief to Ms. Helman orMr. Robinson (Ex. 9, p. 23, line 19 – p. 28, line 5; p. 48, line 17 – p. 49, line 5).

d. Ms. Pedene stated the only reason Mr. Robinson provided to her for the

reductions was that the needs of the medical center are many and publicaffairs is not a priority (Ex. 9, p. 48, lines 9 – 16).

e. The approved PAO budget for fiscal years (FY) 2009 - 2013 was:

FY09 155,741FY10 108,180

13

FY11 102,040FY12 96,938 (initial) 100,362 (final)

14

FY13 96,938Ex. 14.

11 The PVAHCS served as the primary sponsor for the Phoenix Veterans Day parade since 1996. Ms. Pedene

was the coordinator for this event.12 The Technical Career Field (TCF) program is a two-year training program for participants to develop technical

skills to meet VA's mission critical needs. TCF offers full-time employment positions with national funding to

cover salary, benefits, training and travel associated with the program.13 The AIB report dated September 23, 2011 found that former Director, Gabriel Perez, had implemented 25%

“across the board” budget cuts for FY 2010. Consequently, the PAO was not the only program affected by

budget reductions. (See Footnote 1 and Ex. 2, pgs. 9-10.)14 Ms. Laney explained that the final budget of $100,362 represented additional funds provided to the PAO near

the end of the fiscal year.





5

f. According to a spreadsheet provided by Ms. Laney, FY 2013 budgets forsome other program areas within PVAHCS also stayed the same as FY 2012and some were reduced (Ex. 14). Ms. Laney is not aware of any budgetreductions for the PAO for FY 2013.

g. Mr. Trottier, who served as a budget certifying official for PAO for six years,said his discussion with Ms. Pedene in November 2012 regarding her FY 2013budget addressed her concern that the requested PAO budget was notapproved. In an e-mail to Ms. Pedene dated November 28, 2012, Mr. Trottierstated, “My control points were also adjusted down as were others so I thinkthis is possibly a reflection of a bad budget year?” At the time, Mr. Trottiersought to determine what part of Ms. Pedene’s requested budget for FY 2013was disapproved and was told by Fiscal only that it was an executive decision(Ex. 15 and 15a).

h. Ms. Pedene testified that under former Director John Fears, staffing for thePAO grew and ultimately included a secretary (GS-6/7), a GS-4 intern positionthat was usually filled with two college students working 20 hours per week,and a GS-9/11 position. According to Ms. Pedene, Mr. Perez reduced both theintern position and the GS-9/11 position shortly after his arrival in June 2010(Ex. 6g, p. 6, lines 13 -21; Ex. 9, p. 79, line 6 – p. 82, line 9;).

15

i. With regard to why she believes Ms. Helman and Mr. Robinson wereretaliating against her for earlier disclosures involving previous medical centerleadership, Ms. Pedene believes Ms. Helman and Mr. Robinson felt she (Ms.Pedene) was a threat to them because of the trusted relationships she had

built in the community, among patients, and among staff.16 She also testifiedthat they (Ms. Helman and Mr. Robinson) probably did not trust her becauseshe had removed the prior director, was still in contact with Dr. Foote, andthey knew she (Ms. Pedene) would not stand for them doing wrong things toVeterans or staff (Ex. 9, p. 117, line 19 – p. 121, line 9).

17

7. Facts – Temporary Reassignment and Data Breach Investigation

a. VA Handbook 6500, Appendix D, Department of Veterans Affairs, NationalRules of Behavior, paragraph 2g(8), specifically provides that VA employeeswill prevent unauthorized access by another user by logging off or locking any

computer before walking away (Ex. 17).

15 Ms. Pedene’s testimony before the AIB did not occur until May 2011.16 Ms. Pedene provided a typed document dated December 20, 2013 purportedly prepared by Kathy Sloan,

former Executive Assistant to Ms. Helman, wherein Ms. Sloan states that Ms. Helman made several maliciousremarks about Ms. Pedene. According to the document, Ms. Helman commented that the public affairs program

at Ms. Helman’s prior duty station could “run circles” around Ms. Pedene’s program and also referred to Ms.

Pedene’s office as a “ bit of a shrine” due to the amount of awards and pictures displayed. (Ex.16).17 Dr. Sam Foote is a retired VA physician who is a primary whistleblower concerning scheduling and wait-time

issues at PVAHCS.





6

b. VA Handbook 6500.2, Management of Data Breaches Involving SensitivePersonal Information (SPI), provides required procedures for VA componentsto manage data breaches, including detection, correlation, notification,remediation, and reporting.

VA defines “data breach” as the loss, theft, or other unauthorizedaccess, other than those incidental to the scope of employment, to datacontaining sensitive personal information (SPI), in electronic or printedform that results in the potential compromise of the confidentiality orintegrity of the data.

Unauthorized access is further defined, in pertinent part, as access toSPI by an unauthorized user, that is, someone who does not have VApermission to access the information or has not met the requirementsto access the data, such as a background information if required, or

both.

In determining whether VA should notify or offer credit reportingservices to individuals involved in the data breach, the Data BreachCore Team (DCBT) first determines whether a data breach occurred.

Ex. 18.

c. VA Handbook 5021, Part I, Chapter 1, Paragraph 7b, provides in pertinentpart that ordinarily, the employee will be retained in a pay and active dutystatus in his or her position at current grade and salary during any inquiry or

investigation. However, in those instances where it is determined that theemployee's continued presence at his or her worksite during an inquiry orinvestigation might pose a threat to the employee or others, result in loss of ordamage to Government property, or otherwise jeopardize legitimateGovernment interests, other alternatives may be considered including (a).Detailing the employee to other duties where he or she is no longer a threat tosafety, to VA's mission, or to Government property; (b). Allowing the employeeto take leave; or (c). As a last resort, placing the employee in a paid non-dutystatus pending completion of the inquiry or investigation (Ex. 19).

d. VA Handbook 5005, Part III, Chapter 2, Paragraph 13, provides that a

detail of 30 days or more is considered a formal detail and must be initiated bya Standard Form (SF) 52, Request for Personnel Action, and forwarded to theHR Office for processing. Another SF 52 is required to extend or terminatethe detail. Additionally, if the formal detail is from a classified position to anunclassified position, a brief explanation of the duties will be entered in the"Remarks” space of the SF 52 in lieu of the position identification in the "TO"column (Ex. 20).





7

e. VA Handbook 5013, Part I, Paragraph 10, provides that when anemployee is detailed, a performance plan will be provided for the position towhich he or she is detailed. If the detail lasts for 120 days or more, aperformance rating will be prepared at the conclusion of the detail that

appraises the employee’s performance while in the temporary position. Acopy of this rating shall be shared with the employee and then forwarded tothe servicing human resources management office or employing organizationfor consideration at the end of the appraisal period (Ex. 21).

f. On about January 6, 2012, Ms. Pedene sent an e-mail to approximately 75members of the Public Relations Society of America (PRSA) to which sheinadvertently attached a mailing list containing the names and addresses ofabout 71,467 Veterans.

18 Ms. Pedene reported the incident to her supervisor,

Mr. Robinson, then interim Associate Director. Ms. Pedene recalled themessage and after about three months, with the assistance of Ms. Monet,

ultimately obtained confirmation from her colleagues that the e-mail had beendeleted. Based on the facility’s successful mitigation efforts, the NationalSecurity Operations Center (NSOC) categorized this event as a policyviolation rather than a data breach and did not require the facility to notify theVeterans. No action of any type was taken against Ms. Pedene. Mr.Robinson concurred that the event was inadvertent and caused by Ms.Pedene’s peripheral vision issues (Ex. 22, FY 2012 sheet; Ex. 6e, p. 15, line 1

– p. 21, line 11; Ex. 6h, p. 6, line 21 – p. 9, line 11).

g. In late November 2012, Ms. Pedene logged on to a VA computer using heruser name and password and allowed her husband, who was serving as a VA

Volunteer, to upload photographs of the recent Veterans Day parade into aPowerPoint presentation. Ms. Pedene explained that she had two upcomingdeadlines and had no one else available to upload the photographs (Ex. 9, p.51, line 15 – p. 54, line 7; Ex. 6g, p. 5, line 20 – p. 8, line 15). She also statedshe was monitoring her husband by checking on him every 15-20 minutes (Ex.9, p. 54, lines 4-11).

h. Mr. Scherpf observed Mr. Pedene at the computer, which was located inthe reception area outside the Executive Offices, and notified Mr. Robinsonthat Mr. Pedene was working on the computer.

19 Mr. Scherpf asked Mr.

Robinson whether Mr. Pedene had a network access code. According to Mr.

Scherpf, Mr. Robinson stated he did not know, so Mr. Scherpf asked whetherhe should check with IT to see whether Mr. Pedene was properly logged on tothe computer. Mr. Robinson agreed with that approach and Mr. Scherpfobtained a usage summary from IT. The usage summary showed that onlyMs. Pedene had logged on to the computer Mr. Pedene had been using (Ex.6i, p. 3, line 21 – p. 9, line 17 and Ex. 5, attchs D and E).

18 Ms. Pedene used the mailing list to distribute a quarterly newsletter.19 Mr. Scherpf’s verbal statement during the telephonic interview for this inquiry was generally consistent with

his sworn testimony provided to the AIB on June 11, 2013.





8

i. Mr. Robinson questioned Ms. Pedene about the incident and sheacknowledged that she had allowed her husband access to the computer forthe sole purpose of uploading photos to a PowerPoint presentation which had

been placed on the computer “desktop”. Ms. Pedene stated that at no timedid her husband have access to other programs. Ms. Pedene testified thatMr. Robinson told her that “You know we’re not supposed to have people whodo not have computer access on the computer system.” Ms. Pedeneacknowledged that she understood, but explained that she (Ms. Pedene) hadbeen told by her assistant, Laura Templeman, that it was an accepted practiceso long as the user was being monitored.

20 Ms. Pedene stated Ms.

Templeman had done this numerous times and had verified this informationwith the Privacy Office (Ex 6g, p. 7, lines 5-14; p. 9, lines 2-10 and Ex. 9, p.54, line 15 – p. 55, line 4). According to Ms. Pedene, Mr. Robinson statedthat he considered this a serious offense and Ms. Pedene responded by

saying “Do what you have to do, Lance” (Ex. 9, p. 54, line 8 – p. 55, line 14).

j. Mr. Robinson notified Ms. Monet of this event on December 4, 2012 andthe matter was reported to the NSOC on December 5, 2012. Ms. Monetinformed NSOC that an investigation of the “scope and purpose of exposure”would ensue (Ex. 5, attch E).

k. On December 6, 2012 NSOC responded that the incident did not meet thecriteria for a data breach and did not require any notifications (Ex. 25).

21 Ms.

Getzendanner, in responding to the team’s questions, stated “It is against VApolicy to allow someone else on the network, but we did not believe at that

point that an actual data breach occurred” (Ex. 26). NSOC also notified thefacility that it could proceed with resolving the event and requesting the eventclosed (Ex. 25).

22 Ms. Monet responded to NSOC as follows:

This ticket has high breach potential which has not yet beendetermined. The facility notification to resolve ticket will beaddressed once the breach potential has been reviewed andreported. At this time, Pentad member advised that findingof other person providing same unauthorized access has

20 Ms. Templeman denied making this statement to Ms. Pedene. Conversely Ms. Templeman acknowledged that

she logged non-VA employees on to VA computers, but that she was instructed to do so by Ms. Pedene.Likewise, Charles Melton, former TCF intern in the PA Office for Ms. Pedene, confirmed Ms. Pedene told him

and Ms. Templeman to allow parade volunteers to use their computer log-ins. (Ex. 23 and Ex. 6j, p. 7, lines 2-10; p. 12, lines 18-25; See also Ex. 24).21 The first issue addressed by the DBCT to determine whether notice or credit monitoring should occur is

“Could VA SPI have been exposed in a readable or usable form to an unauthorized user or for an unauthorized purpose, other than incidental to employment, in violation of any of the applicable provisions?” If the answer is

“no”, no further action is required (Ex. 18).22 Ms. Monet, during her verbal interview, explained that a finding that no data breach occurred does not meanthat unauthorized access in violation of applicable privacy or other computer security regulations, such as the

Rules of Behavior, did not occur.





9

strong validity to be investigated.23

Access reports will berequested to determine scope of potential breach.

Ex. 27.

l. On December 7, 2012, Mr. Robinson notified the HR Officer and the Assistant HR Officer of his findings and that he wished to consider next steps,including suspension of Ms. Pedene’s computer access (Ex. 5, attch D).

m. On December 10, 2012, Mr. Robinson temporarily reassigned Ms. Pedeneto Education Service for an initial period of 30 days.

24 Ms. Schloendorn, the

HR Officer, was present when Mr. Robinson issued the reassignment memo(Ex. 9, p. 58, lines 9-14). The stated reason provided to Ms. Pedene in thereassignment memo was to investigate serious alleged misconduct; however,specific allegations were not identified (Ex. 10). Although the detail lasted

more than 180 days, Ms. Pedene never received a memo extending thedetail. According to Ms. Pedene, regional counsel would only indicate that theinvestigation was continuing (Ex. 9, p. 58, line 15 – p. 59, line 16.)

n. Ms. Pedene’s detail to Education Service was not documented with an SF52 as required by VA Handbook 5005 (Ex. 28). Ms. Pedene’s temporarysupervisor, Susan Hall, did provide Ms. Pedene with a list of unclassifiedduties to be performed during the detail including the development of threePVAHCS training policies, coordinating continuing medical education coursesand administrative officers’ training curriculum, providing assistance withTalent Management System, and library reception duties (Ex. 29).

o. Ms. Pedene did not receive a performance rating of record from Mr.Robinson for FY 2013 as required by VA Handbook 5005 (Ex. 28).

p. Ms. Hall stated Mr. Robinson told her that he had told Ms. Pedene not toperform any PAO duties and consequently, he wanted Ms. Hall to act as a“surrogate” for Ms. Pedene’s Outlook account to ensure she (Ms. Pedene)was complying with his instructions (Ex. 30). Ms. Hall stated she did not thinkMs. Pedene was aware of this and she (Ms. Hall) was uncomfortable doing it.Nevertheless, after Ms. Hall received access to Ms. Pedene’s Outlookaccount, Ms. Hall indicated that she viewed the messages and did not find

anything indicating Ms. Pedene was performing PAO duties. She stated Mr.Robinson asked her once whether she had checked on Ms. Pedene’s e-mailand she told him that she had not seen anything. She stated she never

23 The reference to “other person” refers to Laura Templeman. (See paragraph 7i and footnote 20 herein.)24 The term “temporary reassignment” is not a recognized personnel action. The Office of Personnel

Management’s “Guide to Processing Personnel Actions”, Chapter 14, defines “detail” as a temporary assignment

to a different position for a specified time when the employee is expected to return to his or her regular duties atthe end of the assignment. Accordingly, Ms. Pedene’s temporary reassignment is more accurately identified as a

detail.





10

checked on Ms. Pedene’s account again and Mr. Robinson did not raise theissue any more.

25

q. From December 11 – December 17, 2013, the facility reported to NSOC

that it had identified Ms. Pedene’s husband and staff from another VA facilityas having access to the PVAHCS Facebook account and that their access,along with Ms. Pedene’s, had been terminated. The facility also reported thatmultiple photographs of a Veteran inpatient had been placed on the PVAHCSFacebook page and that a request to Medical Media had been submitted todetermine whether a consent form had been signed.

r. On or about December 17, 2013, the facility appealed the initial DBCTdecision that no breach had occurred and provided the following additionalinformation to NSOC

26:

Consultation with HR regarding non-facility staff Administrative access to Facebook account. Contact withfacility, pending. It is now established that this is a PrivacyIncident with exposure of Veteran information includingidentification and pictures of medical condition withoutconsent or authorization on facility's website. The individualswho had access to do this included one non-VHA individualand another unknown individual at another VHA facility. Itwas determined that the Administrators of facility Facebookaccount were found upon routine inspection by VHA MediaOffice.

Administrator access to the PVAHCS Facebook account had beengranted to a VA contractor.

Recent PAO email files show one Veteran’s personal healthinformation (PHI) was sent to a member of the media withoutencryption. No further disclosure was documented.

Other recent emails show an unencrypted email containing PHI of fourVeterans containing their first and last names, telephone numbers,deceased status and one address was sent to another employee.

Investigation is continuing.

25 Ms. Hall also testified regarding this issue during the facility’s AIB on June 10, 2013 (Ex. 6c, p. 5, line 16 – p.

6, line 11.)26 Ms. Getzendanner stated it is not uncommon for facilities to appeal “no breach” findings if more information is

later discovered indicating an actual data breach did occur (Ex. 26).





11

The report concluded that the above findings coupled with the husband’switnessed computer access indicated PHI exposure to a non-VHA individual.Scope of exposure is still under investigation.

Ex. 5f, Ex. 27, and Ex. 31.

s. On January 10, 2013, NSOC notified the facility that the DBCT agreed thatthese events were more than policy violations and requested additionalinformation (Ex. 31). Ms. Monet provided the requested information onJanuary 11, 2013 including information about low volume, unencrypted e-mails containing PHI/PII being sent and a prior disclosure of a PHI/PII data filein 2012 (Ex. 5, attch E, pgs. 4-5). On January 15, 2014, the DBCT consideredthe additional information and determined that a next of kin letter should besent (Ex. 26 and Ex. 32).

t. On January 31, 2013, NSOC notified the facility that this event had beenclosed and no data breach had occurred. Ms. Getzendanner informed theinterview team that this notification was incorrect. It appeared to her that theperson who closed out the ticket either did not see the additional informationthat had been submitted by the facility or that due to recent holidays, theinformation somehow crossed paths. Ms. Getzendanner stated the basis forthe finding that a data breach had occurred was the lack of patient consent forthe Facebook photograph (Ex. 26, Ex. 33).

u. By letter dated March 8, 2013, Ms. Helman notified the family of theVeteran patient whose photographs were posted on the facility Facebook

page that proper consent had not been obtained from the patient. The letterfurther described steps that could be taken to prevent identity theft andmonitor credit reporting (Ex. 34).

v. On April 16, 2014, shortly prior to her transfer from PVAHCS to another VAfacility, Ms. Hall issued Ms. Pedene two documents which purported to be fullysuccessful performance evaluations for FY 2013 and FY 2014 in connectionwith her temporary reassignment to Education Services (Ex. 35).

w. Between January 1, 2012 and September 11, 2014, the PVAHCS PrivacyOfficer logged approximately 90 privacy tickets representing reported privacy

violations (Ex. 22).27

The facility was asked whether any of the employeesbeing investigated for unauthorized access or disclosure were either placedon authorized absence or detailed to other positions. Other than Ms. Pedeneand another employee identified as a whistleblower in a separate matter, the

27 Primary violation categories included: misuse or mishandling of information; unauthorized access (both

electronic and physical); and missing or stolen equipment. Many of the complaints involved employees allegedly

accessing the medical records of co-workers who were also patients. At least two of the privacy tickets involvedunauthorized patient photographs or video being taken. Several others tickets involved employees allegedly

allowing others to use the employees’ access code and password to access computers.





12

facility identified only one person who had been placed on AA or detailed forsimilar issues (Ex. 36).

8. Facts: Alleged Misuse of Appropriated Funds

a. Mr. Trottier stated that he did not see any inappropriate purchases or “redflags” during the six year period he served as certifying official for the PAObudget. Nevertheless, in October 2012 his supervisor, Brad Curry, told himMr. Robinson wanted to talk to him about Ms. Pedene’s budget. Mr. Trottierstated Mr. Robinson told him Ms. Pedene was having problems with herbudget and he (Mr. Trottier) needed to know she had “thrown him (Mr.Trottier) under the bus”. According to Mr. Trottier, Mr. Robinson told him thatMs. Pedene was terribly unethical and had improperly spent money on theparade and a local facility award program called the PRIDE program. Mr.Trottier stated Mr. Robinson told him that he (Mr. Trottier) had been drawn

into the investigation. Mr. Trottier stated that he later had two similarconversations with Mr. Robinson in December 2012 and February or March of2013 respectively. Mr. Trottier stated Mr. Robinson used phrases such as the“investigation is taking off and you’re going to be called into it” and “it doesn’tlook good for her”. Mr. Trottier said his impression was that Mr. Robinson wastrying to portray Ms. Pedene as an unsavory character and was trying todiscredit her. During the last conversation, Mr. Trottier said Mr. Robinson toldhim that he (Mr. Robinson) appreciated his help even though Mr. Trottier wasnot called as a witness in the subsequent AIB. Mr. Trottier said that Mr. Curryalso told him later that Mr. Robinson really appreciated Mr. Trottier’sprofessionalism (Ex. 37).

28

b. On December 11, 2012, Ms. Laney notified Mr. Robinson via e-mail that arandom audit of the PAO fund control point identified the use of appropriatedfunds for the Veterans Day parade that appeared to conflict with guidanceprovided in a Regional Counsel (RC) memo dated February 14, 2002.

29 She

28 Although unrelated to the specific issues reviewed herein, Mr. Trottier stated that in December 2013 he wasinformed that Mr. Curry had been using government vehicles and drivers assigned to the Beneficiary Travel

Section to drive him on campus and to rummage sales. Mr. Trottier said that he reported this apparent misuse of

government vehicles to Mr. Robinson and Mr. Robinson responded by telling him that he (Mr. Trottier) had beena manager for a long time and needed to know when to keep things to himself because there may come a time

when he (Mr. Trottier) would not want to work for Mr. Curry. Mr. Trottier told Mr. Robinson that he had donehis job and given him the information. According to Mr. Trottier, about two weeks later, Mr. Curry told him that

he knew Mr. Trottier had gone to Mr. Robinson and tried to get him in trouble. Mr. Trottier stated that heinformed the Mobility Manager of these conversations so he would not make the same mistake as Mr. Trottier

and report the alleged misuse.29 The RC memo provides in pertinent part that the facility can use appropriated funds to pay costs directlyattributable to the participation of its own employees, but cannot pay expenses for the benefit of other

participants. Specifically RC stated that appropriated funds could not be used for items such as fencing, security,

trophies, portable toilets, and similar expenses for conducting the parade; however funds could be used for a VAfloat, outreach materials, VA staff to carry out these endeavors, and other reasonable costs of direct VA

participation (Ex. 5, attch B-1).





13

also identified several allegedly inappropriate purchase card purchases andindicated the review would be expanded to include all four quarters in 2012.Lastly, she recommended future purchases be preapproved or alternatively,suspended until a full review is conducted (Ex. 5, attchs B-1 and L, and Ex.

38).30

c. On December 15, 2012, Mr. Robinson approved Ms. Laney’s request topre-approve PAO purchases, but did not wish to suspend payments becauseseveral additional invoices would be presented in the future. He also wantedMs. Laney to complete her FY 2012 analysis as soon as possible because an

AIB was being conducted sometime after the first of the year and would mostlikely include this issue.

31 Mr. Robinson also inquired whether there may be

misappropriation in FY 2011 that should be reviewed and suggested thatFQAM or another outside source should look at those issues and provide theirthoughts (Ex. 38).

d. On December 21, 2012, Mr. Robinson notified Ms. Laney that her reportneeded more details and requested that she provide him with fiscal rules,regulations, policies, and ethical standards that may have been violated. Healso stated he had discussed this matter with Ms. Helman and she hadrequested that Ms. Laney review all purchases going back to the date of theRC memo dated February 14, 2002 (Ex. 5, attch M, Ex. 39).

32

e. During the first two weeks of January 2013, Mr. Robinson, MariaSchloendorn, HR Officer, and Dana Heck, Attorney for Phoenix RegionalCounsel, addressed the issue of whether to refer the alleged inappropriate

purchases to VA Office of Inspector General (OIG) as a criminal issue. Ms.Schloendorn recommended the matter be referred to OIG if the AIB validatedthe charge. Ms. Heck concurred with the referral to OIG if Mr. Robinsonbelieved the purchases constituted a crime, but opined the facts were morelikely loose enough that the OIG may not be interested in prosecuting (Ex. 40).

f. By memo dated January 16, 2013, Ms. Laney submitted her final auditfindings to Mr. Robinson. The first sentence of the audit report states: “Aspart of our random review [emphasis added] of Phoenix Health Care Systemfund control points, we evaluated FCP 166 which belongs for [sic] Public

Affairs Supplies and Services”.33

The report covered FY 2005 – FY 2013 and

30 During her interview for this inquiry, Ms. Laney vehemently denied that either Ms. Helman or Mr. Robinson

told her to “go after Paula” in connection with this audit. Ms. Laney reiterated that Ms. Helman had simply givenher a copy of the RC memo months earlier and asked her to look at the parade when she had time to ensure it was

being handled properly. Ms. Laney stated the timing of the audit was strictly coincidental and that, in her mind,

she was simply performing a fiscal audit.31 It is presumed Mr. Robinson was referring to an AIB to review the alleged computer security/privacy

allegations.32 According to Ms. Laney, fiscal records were not available earlier than FY 2005.33 Although referring to the PAO audit as “random” in her report, Ms. Laney provided different reasons for

conducting the audit during her interview with the administrative investigation board on June 11, 2013. She





14

found that many purchases violated appropriations law, VA regulations, andPhoenix VA procurement policies. Additional purchases were described asunnecessary and unreasonable. Inappropriate purchases identified in thereport for the eight year period covered in the audit included: $59,606 for the

Veterans Day parade; $989 in personal purchases; $2,344 in membershipfees for professional associations; and $8,574 in graphic design and supportservices to an individual who was not a VA vendor and whose business couldnot be readily identified (Ex. 5, attch N).

34

g. The audit report findings were provided to the VA Office of Inspector General. OIG notified Mr. Robinson on April 23, 2013 that there wasinsufficient evidence to pursue a criminal investigation (Ex. 41, p. 15).

h. By memo dated May 9, 2013, Ms. Helman notified the VISN 18 Director of her concerns that OIG had not performed a diligent criminal investigation and

requested other resolution options (Ex. 42).35

i. By memo dated May 20, 2013, Ms. Helman convened an AIB to reviewwhether Ms. Pedene engaged in information security and misappropriationviolations. The Board was chaired by Patricia Craig, HR Manager, Southern

Arizona VA Health Care System. Board members were Gerald Doctor, ChiefFinancial Officer, New Mexico VA Health Care System’ and Ammie Callahan,Public Affairs Officer, Northern Arizona VA Health Care System. The AIB wasinstructed to determine: (1) the validity of the allegations; (2) whether otheremployees knowingly allowed the violations to continue; (3) what training and

initially explained that as a new Chief Financial Officer she needed to look at “high risk” areas and wanted to see what was going on with the VA parade (Ex. 6d, p. 4, lines 7-17). When asked specifically what made her notice

this particular fund control point, Ms. Laney stated that, shortly after Ms. Helman arrived, she (Ms. Helman) provided her with a copy of the RC memorandum regarding use of appropriated funds for the Veterans Day

parade and asked her to look into it to ensure regulations were being followed. Ms. Laney also testified that prior

to the audit; a contracting specialist informed her that there might be “split purchases” in the fund control point(Ex. 6d, p. 7, lines 3-21). During her interview for the subject inquiry, Ms. Laney added that when she saw the

amount of the PAO budget (around $100,000), she also made a note to herself that she needed to look at the fund

control point. Additionally, during her interview for the subject inquiry, Ms. Laney was asked whether Ms.Helman or Mr. Robinson asked her to conduct fiscal audits for any other program and she indicated that she was

asked to review the Nursing Education Program. Her report is dated October 9, 2013 and found a lack of clear

processes or internal controls to prevent overpayment of funds and a lack of specific evidential matter (Ex. 43).Ms. Laney indicated these findings were not as serious as her findings during the PAO audit. Ms. Laney also

stated that the then Associate Director for Patient Care Services immediately asked for assistance in correctingthe Nursing Education findings. Although not sure, Ms. Laney believes one employee was reprimanded based

upon the Nursing Education audit findings.34 The largest single purchases for the parade included $6,725 in 2005 for a parade balloon in the likeness of

“Rosie the Riveter”; $17,575 in 2006 for miscellaneous printing to include VA parade envelopes; $5,832 in 2006

for event management assistance to entail database management, Excel charting and graphing, and preparingvolunteers for parade day; and $4,310 in 2009 for a parade balloon in the likeness of a male doctor. Professional

associations included the Public Relations Society of America and the International Association of Business

Communicators. Personal purchases included an iPod docking station, Memorex radio, business cards for Ms.Pedene, and roses for a co-worker’s retirement ceremony (Ex. 5, attach N).35 The memo to the VISN 18 Director did not identify Ms. Pedene by name or position.





15

instruction had the employee received regarding information security andfinancial regulations; (4) what local and national VA policies were violatedregarding the accusations (Ex. 44 – appointment memo).

j. By separate memo also dated May 20, 2013, Ms. Helman provided Ms.Craig, AIB Chairperson, with evidence for the Board’s consideration. Thememo specifically stated: “Enclosed with this memorandum, you will findsupporting evidence of misconduct by the employee under investigation . . .”The memo’s second paragraph stated that: “The attached evidence indicatesthe following accusations may have validity.” This memo described thecharges in greater detail than the appointment memo and also listed chargesthat were not identified in the appointment memo

36 (Ex 44 – evidence memo).

k. The AIB panel submitted its report on July 19, 2013 and concluded thatMs. Pedene engaged in the following 12 improper actions: (1). Violation of VA

Privacy and Information Security Awareness and Rules of Behavior byknowingly allowing her assistant to grant computer access to students andvolunteers under her assistant’s user ID and password; and (2). By grantingaccess to her (Ms. Pedene’s) husband by logging him on under her user IDand password; (3). Violation of Phoenix VAHCS Policy Memorandum No. 135-08, Volunteer Assistance, by allowing her (Ms. Pedene’s) husband to performduties for her as a volunteer

37; (4). Granting Barbara Daniels, contractor; and

(5). Bill Pedene permission as administrators for the PVAHCS Facebookpage in violation of VA Directive 6515, Use of Web-based CollaborationTechnologies and PVAHCS Memorandum No. 00PA-01, News MediaRelations; (6). Posting a hospice patient’s photo without proper consent in

violation of PVAHCS Memorandum No. 00PA-05; (7). Ms. Pedene’s e-mailfiles show one Veteran’s PHI without encryption to member of the media; anunencrypted e-mail containing PHI of 4 Veterans containing first and lastnames, telephone numbers, and deceased status; (8). Numerous violations

36 The AIB appointment memo listed the following verbatim charges: A. Information Security Violations: i.

Access to secured VA information and technology systems given to students, interns, volunteers, family

members, contractors, members of Veterans Service Organizations or other parties; ii. Direction of employees orsubordinates to grant access to secured VA systems; iii. Secured VA data exposure; iv. Facility Facebook page

administered by a family member or by an external contractor. 1. Did the non-employees meet VA privacy and

information security requirements; 2. Was a Business Agreement in place; 3. Were there violations of VA policy or regulation in Facebook postings. B. Insubordination to supervisory staff; C. Lack of candor with

supervisory staff; D. Personal gain from the sale and distribution of Veterans Day Parade photos taken withgovernment equipment; E. Misuse of government property; F. Misappropriation of government funds: i.

Personal gain from government contracts awarded for the purpose of performing job responsibilities; ii. Weregovernment funds used to purchase Veterans Canteen Service items for personal use including but not limited to:

ipod docking station, and a large portable stereo system; iii. Did the subject of the investigation direct employees

or subordinates to make alleged purchases; iv. Technical Career Field (TCF) Intern funds redirected to programoperations and management activities. G. Did the subject direct subordinate employees (TCF Intern) to back

date official documents and training records.” 37 PVAHCS provides that volunteers may not work with, nor be supervised by, a PVAHCS employee working inthe same section, department, or service, who is a close relative such as a spouse, parent, or sibling (Ex. 5, attch

Q).





16

of Government Accountability Office (GAO) Appropriations Law ‘Red Book’ –Volume 1, Chapter 4, pertaining to the use of appropriated funds foradvertising, promotional or propaganda purposes; and (9). payment for PRSAmembership fees in FY 2011 and 2012; (10). Violation of VA Financial Policy

Volume II, Chapter 4 – Awards, Ceremonies, Food or Refreshments, Gifts orMementos by authorizing items to be given out as incentives and promotionalgifts; (11). Violation of VA Financial Policy Volume XVI – Chapter 1 Appendix

A, Government Purchase Card, when she authorized the purchase of aMemorex Radio in FY2012, two personalized day timer portfolios in FY 2011,an iPod in FY 2012 and 250 business card holders in FY 2012; and (12).Failure to properly administer the PAO fund control point (Ex. 44 – report).

l. The Board made four recommendations including recommending that theDirector consider taking appropriate action against Ms. Pedene up to andincluding removal (Ex. 44 - report).

38

m. In August 2013, the Under Secretary for Health requested that both OGCand the VHA Workforce Management & Consulting Office (WMC) review the

AIB findings and the facility’s intent to propose Ms. Pedene’s removal fromfederal service. Both reviews were conducted prior to any action beingpresented to Ms. Pedene. During its review OGC identified concerns with thesufficiency of the evidence for several charges and specifically mentioned thatmany of the alleged improper purchases were made in connection with earlierVeterans Day parades and had been supported by previous leadership teams.

Although neither review concluded that the proposed charges warrantedremoval, both OGC and WMC found the charges did support suspension or

demotion (Ex. 45).39

n. By memo dated November 5, 2013, Mr. Robinson proposed that Ms.Pedene be demoted to Staff Assistant, GS-11(Ex. 46).

40 WMC case notes

reflect that the proposed demotion memo included all of the previous chargesfrom the prior proposed removal action instead of only one charge asdiscussed. A conference call was conducted with the facility in which the VHAChief of Staff indicated that the proposed demotion should be rescinded andreissued in accordance with the parameters discussed. By this point,however, Office of Special Counsel had intervened and requested VA hold theaction in abeyance while it investigated Ms. Pedene’s claim of whistleblower

retaliation.41

The proposed demotion was not processed further. (Ex. 45 –case notes).

38 VA Handbook 0700, Administrative Investigations, paragraph 14h, provides that AIBs shall not recommend a

specific level or type of punishment.39 OGC separately analyzed each charge and found that two charges were either not supported by the evidence or

did not warrant discipline. Two other charges were only partially supported by the evidence.40 Ms. Helman designated Dennis Smith, then Director, VA Maryland Health Care System, as the decidingofficial for the action. It is not clear why this occurred.41 Ms. Pedene’s response to the charges contained in the proposed demotion is provided in Ex. 11.





17

9. Facts: Alleged Improper Influence to Withdraw EEO Complaint

a. Ms. Pedene alleged during her testimony that Assistant Director JohnScherpf encouraged her to withdraw an EEO complaint she had filed against

Susan Bowers, then VISN 8 Director, Dr. James Robbins, then interimMedical Center Director, and Lance Robinson, then interim Associate Director,for failing to restore staffing and resources to PAO (Ex. 9, p. 99, line 13, p.105, line 7). She stated Mr. Scherpf contacted her by telephone shortlybefore Ms. Helman’s arrival in February 2012 and told her she shouldconsider how she wanted her relationship to be with the new director becausethe first thing she (Ms. Helman) will see is an EEO complaint filed by herPublic Affairs Officer. According to Ms. Pedene, Mr. Scherpf asked her if thatis really what she wants to happen.

42 After speaking with her advisor that

night who she said advised her against withdrawing the complaint, Ms.Pedene said she withdrew the complaint the following day (Ex. 47).

43

b. On February 6, 2012, Ms. Rusoniello e-mailed Ms. Pedene two possibledates to mediate her EEO complaint with a mediator assigned from CentralOffice.

44 In the subsequent e-mail exchange, Ms. Rusoniello reiterated that

Ms. Pedene’s request to mediate PAO restoration issues could not occur untilafter the new director arrived on February 27, 2012. Ms. Pedene respondedby stating in pertinent part:

All along I have asked to have this resolved PRIOR to newmanagement coming on board. All this does not appear tobe able to be resolved according to what I hoped, I am

unwilling to move this case to the new director as I believethis is inappropriate.

I have discussed this with Roger French.

Therefore I am withdrawing my case.Ex. 47.

42 Per se reprisal occurs when management officials make negative comments or take some other action that

might deter an employee from engaging in EEO activity. Per se reprisal is an automatic violation of Title VIIand does not require evidence of an adverse action.

43 During his interview for this inquiry, Mr. Scherpf denied having this conversation with Ms. Pedene and statedhis only role was as assigned mediator for performance issues; however, Ms. Pedene withdrew her complaint

before the mediation occurred. He noted Mr. Robinson was her supervisor during this time and, if such aconversation occurred, may have been with him (Ex. 47). Ms. Pedene, when informed of Mr. Scherpf’s position,

stated she was certain it was Mr. Scherpf who discussed this with her because Mr. Robinson had already left

Phoenix as interim Associate Director (Ex. 48). Mr. Robinson’s e-OPF reflects, however, that his detail toPVAHCS ended on February 28, 2012 after she had already withdrawn her complaint. See Footnote 10.44 The EEO complaint consisted of concerns related to Ms. Pedene’s performance rating and the issues identified

in Ms. Pedene’s restoration memo (Ex. 4). Mr. Scherpf had originally been scheduled to mediate the performance rating, but did not wish to mediate restoration issues prior to the arrival of the new director.

Consequently, an external mediator was being obtained to address both issues.





18

c. On February 7, 2012, Ms. Rusoniello forwarded the e-mail chain to Mr.Scherpf. In her e-mail to Mr. Scherpf, Ms. Russoniello stated:

The below is what I call “the squeeze.”45

I just had her

determine who, and more importantly, what she reallywanted to address. She made the decision to withdrawal[sic]. Turns out the who and what were not the same forher. [Smiley Face] So as soon as she replied to my email Iquickly called ORM and they sent her the Withdrawalpaperwork options. Done!

10. Analysis and Conclusions

For purposes of this review, it is accepted that Ms. Pedene’s actions as identified

herein constitute protected whistleblowing activity. Even though the initialprotected disclosure occurred in May 2011 prior to the arrival of Ms. Helman andMr. Robinson, both of them were aware of Ms. Pedene’s prior whistlebloweractivity and her continued efforts to restore staffing and budget reductions sheattributed to that activity. The subsequent personnel actions occurred within aperiod of time such that a reasonable person could conclude that Ms. Pedene’sprotected activities were a contributing factor. Thus, in order to find thatretaliation did not occur, there must be clear and convincing evidence that thesame actions would have been taken even in the absence of whistleblowing.Factors to be considered include: (1) strength of the evidence in support of thepersonnel action; (2) existence and strength of any motive to retaliate on the partof Agency officials who were involved in the decision; and (3) any evidence thatthe Agency takes similar actions against employees who are not whistleblowersbut who are otherwise similarly situated.

a. Allegation that Associate Director Lance Robinson reduced Ms. Pedene’sstaff and budget in mid-to-late 2012 and threatened to discipline her when shetold Mr. Robinson that the reason for the reduction was a pretext for retaliation

This allegation is not sustained. PAO staff and budget reductions occurred underthe prior administration before Ms. Helman or Mr. Robinson arrived. The FY2013 PAO budget under Ms. Helman and Mr. Robinson was unchanged from FY2012. Budgets for other programs were also unchanged and some were

reduced. Mr. Robinson’s concern with using medical support appropriations tohire staff to support the Veterans Day parade appears justified and is consistentwith management’s interest in focusing on clinic operations. With regard to Mr.Robinson’s alleged threat to discipline her for telling him that the reason for the

45 In her interview for this inquiry, Ms. Smith (formerly Rusoniello) indicated the word “squeeze” meant she was

attempting to have Ms. Pedene choose whether to mediate the case or move the complaint to the formal stage.Ms. Smith denied that she attempted in any way to force Ms. Pedene to withdraw her complaint or that anyone,

including Mr. Scherpf, asked her to do so.





19

reduction was pretext for retaliation, Ms. Pedene testified she did not make thisstatement to either Mr. Robinson or Ms. Helman.

b. Temporary Reassignment and Data Breach Investigation

The allegation that Ms. Pedene’s whistleblowing activity was a contributing factorto her detail in Education Service is sustained. Numerous employees alleged tohave been involved in similar computer or privacy violations were not detailed toother positions. Additionally, neither the original detail nor subsequent extensionswere properly documented in accordance with VA policy. Mr. Robinson also didnot prepare a performance rating for Ms. Pedene while she was on detail asrequired. Most significantly, he instructed Ms. Hall to monitor Ms. Pedene’s e-mail account without her knowledge to ensure she (Ms. Pedene) was notperforming public affairs duties while on detail. Although Ms. Pedene clearlyviolated VA IT security policy and corrective action was warranted, as confirmed

by OGC and VACO HR, her violations do not establish clear and convincingevidence that Ms. Pedene would have been treated in the same manner in theabsence of whistleblowing. Lastly, it must be noted that Ms. Pedeneinadvertently committed an earlier privacy violation in January 2012 for which shereceived no adverse personnel action. This “no action” arguably militates againsta retaliatory motive, but does not sufficiently overcome the obvious disparatetreatment Ms. Pedene received following the computer incident in December2012.

c. Alleged Misuse of Appropriated Funds

The allegation that Ms. Pedene’s whistleblowing activity was a contributing factorto the manner in which the fiscal audit and the subsequent administrativeinvestigation were conducted is sustained. Ms. Laney provided differingexplanations for conducting the audit. Initially stating the audit was random, shelater said she was reviewing high risk areas. When asked during the AIB in2013 what specifically caused her to identify the PAO fund control point, Ms.Laney acknowledged that Ms. Helman asked her to conduct the audit to ensureprior guidance from Regional Counsel was being followed. After some initialproblematic findings were reported, Ms. Helman subsequently asked her toexpand the audit to include the 10 year period from 2002 – 2012. Such a broadreview of old purchases, which were apparently previously allowed by prior

leadership teams, implies that Ms. Helman was less concerned about ensuringappropriate fiscal practices were followed and more concerned with obtaining asmuch evidence as possible against Ms. Pedene.

The evidence submitted to the AIB at the time it was convened wasaccompanied by Ms. Helman’s memo describing the information as “supportingevidence of misconduct” and indicating the “accusations may have validity”.Such statements are highly irregular when seeking an objective, impartial reviewand could serve to improperly influence the Board. Similarly, Mr. Robinson’s





20

conversation with Mr. Trottier regarding Ms. Pedene’s fiscal practices appears tobe intended to unduly pressure Mr. Trottier to provide adverse testimony aboutMs. Pedene. These actions imply Ms. Helman and Mr. Robinson were seeking apredetermined outcome and are considered retaliatory.

OGC noted during its review of the proposed removal action that many of thealleged improper purchases were in connection with the Veterans Day paradeand were apparently supported by prior leadership teams. OGC found two ofthe charges were not supportable and two more were only partially supportable.Ultimately, neither OGC nor VA HR felt the proposed removal action wassupportable and recommended lesser action.

d. Alleged Improper Influence to Withdraw EEO Complaint

This allegation is not sustained. Ms. Pedene’s e-mail to the EEO Manager

withdrawing her complaint does not include any hint that she was improperlyinfluenced to do so. Instead her e-mail states that “all along” she wanted to havethe matter concluded prior to the new director’s arrival. This statement indicatesshe held this concern for a lengthy period of time and is inconsistent with herallegation that she only decided to withdraw the complaint one day after Mr.Scherpf contacted her by telephone. In any event, Mr. Scherpf denies havingsuch a conversation with Ms. Pedene and there is no corroborating evidence forher allegation.

e. Other Conclusion

Ms. Schloendorn, as HR Officer, did not ensure Ms. Pedene’s detail wasproperly documented or extended. Further, she did not ensure Ms. Pedenereceived a performance rating of record for FY 2013. Ms. Schloendorn wasaware of the detail and should have provided better oversight of this action toensure it was procedurally handled in accordance with VA policy.

11. Recommendations

a. Appropriate administrative action should be initiated against Ms. Helmanand Mr. Robinson for engaging in retaliatory acts related to Ms. Pedene’s detail,and the manner in which the subsequent investigations regarding alleged

computer violations and misuse of appropriated funds were conducted.

b. Appropriate administrative action should be initiated against Mr. Robinsonfor improperly attempting to influence Mr. Trottier in connection with his potentialtestimony before an AIB. (See paragraph 8a herein and Ex. 37.)





Letter to Ms. Paula Stokes, AIB Chairperson

Attachment 2, p. 21

Testimony on Behalf of Lance Robinson

Exhibit 8, p. 25





DENVER FIELD OFFICE

SHARON HELMAN,

Appellant,

v.

DEPARTMENT OF VETERANSAFFAIRS,

Agency.

DOCKET NUMBERDE-0707-15-0091-J-1

DATE: December 22, 2014

Debra L. Roth, Esquire, Washington, D.C., for the appellant.

James P. Garay Heelan, Washington, D.C., for the appellant.

Julia H. Perkins, Esquire, Washington, D.C., for the appellant.

Bradley Flippin, Esquire, Nashville, Tennessee, for the agency.

Hansel Cordeiro, Esquire, Washington, D.C., for the agency.

Jeffrey T. Reeder, Esquire, Dallas, Texas, for the agency.

Kimberly Perkins McLeod, Esquire, Washington, D.C., for the agency.

Thomas R. Kennedy, Esquire, Denver, Colorado, for the agency.

BEFORE

Stephen C. MishChief Administrative Judge

DECISION

On December 1, 2014, the appellant timely filed this appeal challenging the

agency’s November 24, 2014 action removing her from her position as the Senior





2

Executive Service (SES) Director of its Phoenix, Arizona Medical Center, and

from the federal civil service altogether. Appeal File (AF), Tab 1. The Board

has jurisdiction over the appeal pursuant to 38 U.S.C. § 713(d)(2)(A).

For the reasons set forth below, the agency’s action is AFFIRMED.


Outstanding Ruling

Due to issues with the agency’s discovery responses, the parties were

ordered to brief the issue of whether an adverse inference should be drawn

against the agency with regard to those responses. Having considered the parties’

arguments, no adverse inference will be drawn against the agency. The shortened

process of 38 U.S.C. § 713 is new. Expecting the agency to accomplish in a few

days what normally requires several weeks or more to do correctly is simply not

realistic.1 By that same token, although as ruled previously, the appellant could

be subject to an adverse inference for not responding to the agency’s discovery

requests by invoking the Fifth Amendment right against self-incrimination, she

will not be. She is caught between a Scylla and Charybdis of criminal and civil

processes focused on overlapping events. Therefore, both parties’ claims aredecided based on the evidence they adduced to support them.

Findings of Fact

The preponderant evidence of record establishes the following.2 Over the

course of a decade, the agency’s Office of Inspector General (OIG) publicly

reported a variety of concerns with agency medical care facilities across the

country, which included allegations of altered patient appointment lists, and the

1 As the agency gains more experience in these cases, it may be expected to have a

better system for responding to discovery in place.

2 Record citations are to the pagination applied by the Board’s electronic docketing

system.





3

failure to use electronic wait lists (EWL). (AF, Tab 48, p. 16). Indeed, since

2005, the OIG has issued at least 18 reports identifying deficiencies in scheduling

at the local and national level, (AF, Tab 6, p. 38).

Specifically with respect to Phoenix VA Health Care System (PVAHCS),on September 2, 2006, the OIG wrote a memorandum to the then-Director

regarding allegations of altered patient wait times and the failure to use the EWL

(AF, Tab 41, p. 165). In it, the OIG concluded that PVAHCS had engaged in an

“accepted practice” of altering appointments to avoid wait times greater than 30

days in an effort to improve performance measures ( Id.).

The appellant was first appointed to the Senior Executive Service in 2007

as the director of an agency facility in Walla Walla, Washington. (AF, Tab 18,

SF-50, p. 35). She later transferred to Hines, Illinois as the director of the

agency’s facility there. ( Id. p. 33). On February 26, 2013, the appellant

transferred to Phoenix and became the PVAHCS Director. ( Id.). At that point,

her direct supervisor was Veterans Integrated Service Network (VISN) 18

Director Susan Bowers. (AF, Tab 71, Appellant’s Merits Brief, Bowers Decl. p.

76).

As the SES Director of the PVAHCS, the appellant was responsible for a

wide range of oversight of operations. (AF, Tab 6, Performance Assessment, pp.

24-34). For example, the appellant was generally tasked with broad goals such as

developing an organizational vision, balancing change and continuity, fostering

high ethical standards, and the like. ( Id., pp. 25-26). These broad goals were

further fleshed out by more specific directives such as, “The SE will increase

high performing inter-professional team-based care to achieve patient-driven

health care and coordination of care across all care settings, both within and

outside VHA.” ( Id ., p. 28). The appellant was also generally responsible for

leading the staff and, when necessary, holding employees accountable for

appropriate levels of performance and conduct. ( Id ., p. 25).





4

Very early on after the appellant moved to Phoenix, likely the evening

before her first official day of work, she spoke with Dr. Katherine Mitchell, who,

at the time, was the Director of the PVAHCS Emergency Department (ED). (AF,

Tab 8, Mitchell Interview; pp. 61-62). During that meeting, Dr. Mitchell reportedto the appellant that the ED was so understaffed and so dangerous that, in her

opinion, it needed to be shut down. ( Id., pp. 23, 61-62, 63). Nevertheless,

according to Dr. Mitchell, the appellant did not follow up with her on the matter,

although, for her part, Dr. Mitchell did not follow up with the appellant, either.

( Id ., p. 65). In any event, Dr. Mitchell continued to raise the issue of ED staffing

with others, as reflected in her June 6, 2012 memo to ED Nurse Manager

Catherine Gibson regarding her concerns with the conduct and insufficient skill

level of a particular ED nurse during a busy night. (AF, Tab 7, p. 73).

Not long after the appellant began her position in Phoenix, in or around

March or April of 2012, PVAHCS Public Affairs Officer Paula Pedene briefed

the appellant regarding her allegations of a hostile work environment under the

prior Director, Gabriel Perez. (AF, Tab 10, Pedene Tr., pp. 12, 14). Pedene

informed the appellant of various concerns she had about how Perez had berated

and belittled employees, and how, to her observation, the PVAHCS staff did not

trust him. ( Id., 13). The meeting lasted approximately 30-45 minutes. ( Id., p.

16).

On December 3, 2012, Dr. James Felicetta, the PVAHCS Chief of

Medicine, administratively reassigned Dr. Mitchell, effective December 10, 2012,

from the ED to the Operation Enduring Freedom, Operation Iraqi Freedom, and

Operation New Dawn Clinic, where she would report directly to Dr. Christopher

Burke. (AF, Tab 7, Felicetta’s Memorandum, p. 71). According to Dr. Felicetta,

the reassignment was because PVAHCS had “identified a greater need” for Dr.

Mitchell’s services “in another area,” and Dr. Felicetta took the opportunity to

express his “sincerest appreciation” for Dr. Mitchell’s “hard work, dedication,





5

and leadership that [she] provided for our veterans in the Emergency

Department.” ( Id.).

In late November 2012, Pedene’s husband, who was an agency volunteer,

not an employee, was observed by a PVAHCS employee working on hercomputer and, this employee informed Robinson of his observation. (AF, Tab 11,

Subtab 27, Pedene ROI, p. 70). By memorandum dated December 10, 2012,

PVAHCS Associate Director Lance Robinson informed Pedene that she was being

temporarily reassigned for an initial period of 30 days to the hospital’s Education

Section. (AF, Tab 9, p. 33). Robinson’s stated that the reassignment was due to

an allegation of possible misconduct by Pedene, but the misconduct was not

further described ( Id .).

On about July 22, 2013, Dr. Mitchell contacted Arizona Senator John

McCain’s office expressing various concerns about veterans’ medical care and

recent suicide trends at PVAHCS. (AF, Tab 7, Subtab 11, Mitchell Issue Brief, p.

68; Tab 9, Mitchell Complaint Summary, pp. 8-17). Among other things, Dr.

Mitchell requested that the OIG dispatch an investigative team to conduct a

PVAHCS investigation. ( Id.). In response to Dr. Mitchell’s contact, by letter

dated September 4, 2013, Senator McCain’s office wrote to agency Deputy

Director of Legislative Affairs, Adam Anicich, and reiterated Dr. Mitchell’s

request for an out-of-state OIG investigation of PVAHCS regarding a variety of

topics, including “the number of suicides since 2010,” and the “confusing and

confidential nature of the electronic ‘wait list’ for veterans to be seen by a

physician.” (AF, Tab 9, McCain Letter, p. 6).

By memorandum dated September 20, 2013, the appellant placed Dr.

Mitchell on administrative leave pending the outcome of a fact finding

investigation. (AF, Tab 7, Mitchell Leave Memorandum, p. 64). Although not

stated in the memorandum, the reason for the administrative leave and fact

finding is reflected in an October 2, 2013 “Issue Brief” regarding Dr. Mitchell’s

alleged “inappropriate access to veteran charts” (AF, Tab 7, Subtab 11, Mitchell





6

Issue Brief, p.68). The focus was Dr. Mitchell’s 16-page letter to Senator

McCain’s office regarding medical care issues and recent suicide trends, as well

as Dr. Mitchell’s request that the OIG dispatch an investigative team to PVAHCS

to conduct an investigation. ( Id .). According to the Issue Brief, Dr. Mitchellaccessed the medical chart “without a role based need[.]” ( Id .). Additionally, on

December 19, 2013, Dr. Burke, Chief of Ambulatory Care, provided Dr. Mitchell

with a written non-disciplinary counseling regarding the fact that Dr. Mitchell

“may have” disclosed personally identifying health information without following

applicable policy and procedures. (AF, Tab 7, Subtab 10, Mitchell Counseling, p.

66). According to Dr. Burke, Dr. Mitchell was being counseled for making

disclosures of personally identifying patient information that was “outside the

normal functions” of her position. ( Id .). The memorandum counseled Dr.

Mitchell that, in the future, any such disclosure needed to be vetted through the

appropriate agency Privacy Officer first. ( Id .).

On April 9, 2014, Congressman Jeff Miller, Chairman of the House

Committee on Veterans Affairs, announced allegations that Veterans were dying

while waiting on “secret” wait lists to receive care at PVAHCS. (AF, Tab 45, Ex.

bbb, Safety Letter, p. 173). Thereafter, many politicians took interest in the

operations of the PVAHCS and the appellant, herself. For example, in a letter

dated April 14, 2014, Congressmen David Schweikert, Trent Franks and Matt

Salmon wrote to the appellant directly to express their “great concerns” with the

indication that, under her leadership, there were “secret lists” to keep patient wait

times artificially low. (AF, Tab 35, Ex. s, Schweikert Letter, p. 22). They

asserted that “Because of [her] and [her] leadership team’s choices, forty or more

veterans have died due to lack of care.” ( Id .). The Congressmen called upon the

appellant and other PCAHCS managers to resign. ( Id .). On that same date, the

Congressmen also wrote to then-Secretary Eric Shinseki and requested that he

immediately remove the PVAHCS leadership team from their positions. (AF, Tab

35, Ex. t, Schweikert Letter, p. 23).





7

On May 2, 2014, the appellant and Robinson were both placed on

administrative leave by order of the Secretary. (AF, Tab 35, Exs. w-y, pp. 34-

36). On May 21, 2014, President Obama announced that he would “not stand” for

misconduct within the VA health system, and that anyone found to have falsifiedrecords would be held accountable. (AF, Tab 36, Ex. ee, President’s Statement,

pp. 11-14). At the same time, however, the President announced the need to

allow the investigators looking in to the matter to gather the facts and get to the

bottom of the situation before making any judgments. ( Id .).

Next, on May 28, 2014, the OIG issued an Interim Report regarding

PVAHCS. (AF, Tab 6, Ex. 5, Interim OIG Report, pp. 36-70). The OIG was

asked to investigate various allegations, including “gross mismanagement of VA

resources and criminal misconduct by VA senior hospital leadership, creating

systematic patient safety issues and possible wrongful deaths.” ( Id ., p. 38). As

stated in the Interim Report, some of these issues were not new: since 2005 the

agency’s OIG had issued 18 reports that identified deficiencies in scheduling at

the local and national level. ( Id.).

The OIG Interim Report focused on two issues: (1) Did the facility’s

electronic wait list (EWL) purposely omit the names of veterans waiting for care

and, if so, at whose direction? (2) Were the deaths of any of these veterans

related to delays in care? ( Id., p. 39). In terms of conclusions, the Interim Report

“substantiated serious conditions” and identified 1700 veterans who were waiting

for a primary care appointment but were not on the EWL. ( Id., p. 40). The

Interim Report also concluded that “the Phoenix HCS leadership significantly

understated the time new patients waited for their primary care appointment in

their FY 2013 performance appraisal accomplishments, which is one of the

factors considered for awards and salary increases.” ( Id.). The OIG also found

the use of wait lists at PVAHCS, other than the office EWL, which may have

been basis for allegations regarding the creation of “secret” lists. ( Id.).





8

Following the release of this interim report, on May 30, 2014, the agency’s

Deputy Chief of Staff Hughes Turner proposed the appellant’s removal. (AF, Tab

18, Subtab 3d, p. 29). The proposal letter included one charge: failure to provide

oversight. ( Id.). The specifications were based on the OIG Interim Report. ( Id.)The agency, however, did not make a decision on this proposed removal.

In the meantime, the OIG was still investigating the circumstances at the

PVAHCS and was also examining allegations about the appellant, herself. On

August 26, 2014, the OIG issued its final report. (AF, Tab 6, Ex. 6, Final OIG

Report, pp. 72-214), which reached the following conclusions:

• “While the case reviews in this report document poor quality of care,

we are unable to conclusively assert that the absence of timely quality care

caused the deaths of these veterans.” ( Id., p. 77);

• The OIG identified numerous veterans who were on unofficial wait

lists, but not on the official EWL. ( Id., p. 78);

• “PVAHCS senior administrative and clinical leadership were aware

of unofficial wait lists and that access delays existed. Timely resolution of these

access problems had not been effectively addressed by PVAHCS senior

administrative and clinical leadership.” ( Id.);

• “As a result of using inappropriate scheduling practices, reported

wait times were unreliable, and we could not obtain reasonable assurance that all

veterans seeking care received the care they needed.” ( Id.);

• “The emphasis by Ms. Sharon Helman, the Director of PVAHCS, on

her “Wildly Important Goal” (WIG) effort to improve access to primary care

resulted in a misleading portrayal of veterans’ access to patient care. Despite

claimed improvements in access measures during fiscal year (FY) 2013, we

found her accomplishments related to primary care wait times and the third-next

available appointment were inaccurate or unsupported.” ( Id ., p. 79).

The Final OIG Report focused on five questions. ( Id ., p. 76). First, were

there clinically significant delays in care? On that issue, the OIG concluded that





9

there were “access barriers that adversely affected the quality of primary and

specialty care provided for them.” ( Id ., p. 113). Second, did PVAHCS omit the

names of veterans waiting for care from its Electronic Wait List (EWL)? For that

issue, the OIG concluded as follows: “PVAHCS maintained what we determinedto be unofficial wait lists, and used inappropriate scheduling processes, which

delayed veterans’ access to health care services. We identified over 3,500

additional veterans who were waiting to be scheduled for appointments. Those

3,500 veterans were not on the EWL as of April 2014; most were on what we

determined to be unofficial wait lists. PVAHCS management was aware of many

of the documents that we identified as unofficial wait lists and that access delays

existed in PVAHCS. Senior PVAHCS administrative and clinical leaders did not

effectively address these access problems.” ( Id., p. 128). Third, were PVAHCS

personnel following established scheduling procedures? In that respect, the OIG

concluded as follows: that PVAHCS personnel did not always follow established

VHA scheduling practices, and that “[s]ome schedulers acknowledged that they

manipulated appointment dates by using prohibited scheduling practices because

of pressure to meet wait time goals imposed by leaders at VHA and PVAHCS”;

as a result, reported wait times were “unreliable,” and the actual wait times were

“unknown” to key stakeholders. ( Id ., p. 134). Fourth, did the PVAHCS culture

emphasize goals at the expense of patient care? On that issue, the OIG concluded

as follows: that “PVAHCS’s emphasis on goals resulted in a misleading portrayal

of veterans’ access to patient care. Despite Ms. Helman’s claims of successful

improvements in access measures during FY 2013, we found those

accomplishments were inaccurate and unsupported.” ( Id., p. 144). Fifth, were

scheduling deficiencies systematic throughout VHA? On that issue, the OIG

offered recommendations, but there were no formal conclusions. ( Id .).

Also during this period following the May 30, 2014 proposed removal, the

agency was conducting internal investigations in to the actions taken against Dr.

Mitchell and Pedene. By memo dated September 16, 2014, Mike Culpepper, of





10

the agency’s Office of Accountability Review, issued a Report of Investigation

regarding Dr. Mitchell’s allegation that she was subject to whistleblower reprisal.

(AF, Tab 7, Ex. 14, Mitchell ROI, pp. 77-94). Among other things, the

Culpepper Report of Investigation sustained Dr. Mitchell’s retaliation claimagainst Dr. Deering, Dr. Piatt, and Claflin for allowing staff to persist in their

hostile and insubordinate attitude toward Dr. Mitchell, and their failure to timely

and thoroughly review Dr. Mitchell’s allegations. ( Id., p. 93). This report also

found that Dr. Deering engaged in retaliation by reassigning Dr. Mitchell, even

though it was based on Dr. Deering’s stated desire to remove Dr. Mitchell from a

“malignant situation” in the ED, because that situation developed as a result of

Dr. Mitchell’s disclosures. ( Id . , p. 93). The report also concluded that it was

within Dr. Mitchell’s area of responsibility to report on ways to reduce patient

suicides, such that it was retaliation to issue her written counseling for violating

patient privacy in that respect. ( Id ., p. 94). The report also sustained a finding of

retaliation with respect to Dr. Mitchell’s FY 10, 11 and 12 performance ratings,

which included comments regarding delays in scheduling, and adverse

interactions with nursing staff, which went to the core of Dr. Mitchell’s

disclosures. ( Id.). The report recommended administrative action against those

who had retaliated against Dr. Mitchell. ( Id .). This report did not include any

express conclusions about the appellant retaliating against Dr. Mitchell, but did

mention the appellant’s September 2013 decision to place Dr. Mitchell on

administrative leave, which was related to her possible release of patient’s

information to Senator McCain. ( Id ., p. 78).

With regard to Pedene, on October 30, 2014, Culpepper issued a second

report regarding Pedene’s allegations of whistleblower reprisal. (AF, Tab 11, Ex.

27, Pedene ROI, pp. 64-84). This report concluded that Pedene had been subject

to retaliation regarding her reporting of the prior director’s actions. It

recommended that “[a]ppropriate administrative action should be initiated against

Ms. Helman and Mr. Robinson for engaging in retaliatory acts related to Ms.





11

Pedene’s detail, and the manner in which the subsequent investigations regarding

alleged computer violations and misuse of appropriated funds were conducted”

( Id., p. 83).

Following the issuance of this report, the agency rescinded the May 30,2014 proposal notice. (AF, Tab 18, Subtab 3c, Recession Letter, p. 27). By

memorandum titled “Pending Action” (PAM) dated November 10, 2014, Sloan

Gibson, the Deputy Secretary of Veterans Affairs, notified the appellant he was

proposing to remove her under the provisions of the recently passed Veterans

Access, Choice and Accountability Act of 2014. (AF, Tab 1, PAM, pp. 9-13).

The new removal notice was based on three charges. Id.

The appellant responded to the proposal through counsel. In her November

17, 2014 response, the appellant contended she was being scapegoated for the

PVAHCS situation to protect higher level agency leaders and voiced her belief

that she would be removed to appease various Congresspersons no matter what

she said. (AF, Tab 1, PAM Response, p. 18-19). She also made various legal

arguments as to why the agency’s actions toward her were improper and why, on

appeal, it would not be able to prove the charges it brought. ( Id.)

On November 24, 2014, Deputy Secretary Gibson sustained his proposal

and removed the appellant from her position and the federal service. (AF, Tab 1,

Removal Letter, pp. 31-33). This appeal followed.

I reserve additional findings for discussion below.

Background Legal Standards

The agency must prove its charged misconduct by preponderant evidence.

See 5 C.F.R. § 1210.18(a). That is the “degree of proof which is more probable

than not.” Black’s Law Dictionary, 1182 (6th ed.) See also 5 C.F.R.

§ 1201.56(c)(2) (a preponderance of the evidence is that degree of relevant

evidence that a reasonable person, considering the record as a whole, would





12

accept as sufficient to find that a contested fact is more likely to be true than

untrue).

A misconduct charge typically consists of two parts, a name or label that

generally characterizes the misconduct and a narrative description of the allegedacts that constitute the misconduct. See Alvarado v. Department of the Air Force ,

103 M.S.P.R. 1, 9 (2006) (citing Otero v. U.S. Postal Service, 73 M.S.P.R. 198,

203 (1997)). Where an agency uses “general charging language” for its label,

language which does not describe the misconduct with particularity, one “must

look to the specification to determine what conduct the agency is relying on as

the basis for its proposed disciplinary action.” See LaChance v. Merit Systems

Protection Board , 147 F.3d 1367, 1371 (Fed. Cir. 1998). The Board is required

to review the agency’s decision on a disciplinary action solely on the grounds

invoked by the agency; it may not substitute a more adequate or proper basis. See

Minor v. U.S. Postal Service, 115 M.S.P.R. 307, 311 (2010); Walker v.

Department of Army, 102 M.S.P.R. 474, 477 (2006); Gottlieb v. Veterans

Administration, 39 M.S.P.R. 606, 609 (1989).

If the agency proves misconduct by the appellant, its chosen penalty is

presumed reasonable and will be upheld unless the appellant adduces

preponderant evidence that the agency’s chosen penalty is unreasonable under all

the circumstances of the case. See 5 C.F.R. § 1210.18(a), (d); 2 McCormick On

Evidence §§ 342, 344 (7th ed.) If the appellant meets that burden, the agency’s

action must be reversed. See 5 C.F.R. § 1210.18(a), (d).

With her affirmative defenses, the appellant must prove them by

preponderant evidence. 5 C.F.R. § 1210.18(b)(3), (c). With her claim of harmful

error, the appellant must prove there was a law, rule or regulation applicable to

the removal proceedings, the agency did not follow it, and that, if it had been

followed, the agency was likely to have reached a different decision on her

removal. See 5 C.F.R. §§ 1201.56(c)(3), 1210.18(c); Cornelius v. Nutt , 472 U.S.

648, 657-59 (1985) (harmful error is not defined in 5 U.S.C. § 7701 and the





13

Board defines it by regulation). With her claim of denial of due process, the

appellant must prove that the agency did not provide her with a meaningful

opportunity to respond to its proposal notice. See Stone v. Federal Deposit

Insurance Corporation, 179 F.3d 1368, 1376 (Fed. Cir. 1999).

The agency has proven the appellant engaged in misconduct.

The agency brought three charges of misconduct against the appellant. The

first was styled “Lack of Oversight” and the agency set out four specifications to

support it. This is generalized charging language and the specifications

supporting the charge determine what the agency must prove. See LaChance, 147

F.3d at 1371. The first, “Specification A,” stated, in its entirety:

In report number 14-02603-267, issued on August 26, 2014, theDepartment of Veterans Affairs (VA) Office of Inspector General(OIG) determined that the Phoenix VA Health Care System(PVAHCS) did not include all Veterans who were waiting to bescheduled for an appointment on an electronic wait list (EWL).According to VHA Directive 2010-027, the EWL is the officialwait list for outpatient clinical care appointments and no otherwait lists should be used for tracking requests for outpatientappointments. As of around April 2014, numerous Veterans werewaiting to be scheduled for an appointment at PVAHCS but were

not on the EWL. As the Director of PVAHCS, you knew orshould have known that PVAHCS was not in compliance withVHA Directive 2010-027.

(AF, Tab 1, PAM, p. 9).

This specification cannot be sustained because, although it sets forth a state

of affairs at the PVAHCS which the agency found unacceptable, it does not

expressly set forth any particular actions or inactions by the appellant which

could constitute misconduct by her. See LaChance, 147 F.3d at 1371 (“we must

look to the specification to determine what conduct the agency is relying on”)

(emphasis added). One can be supplied through implication. For example, while

it is not stated in the charge, adding a line to the effect of “and you did not

attempt to bring it in to compliance” or perhaps “you allowed that state of affairs

to persist” would set forth something the appellant did or failed to do. The





14

problem with expressly adding what is implied, however, is that I would be

guessing at what the agency intended and adding terms to the agency’s charge

letter that the agency did not put there itself.3 Such modification of the agency’s

specification at this stage of proceedings is impermissible. See Minor , 115M.S.P.R. at 311; Walker , 102 M.S.P.R. at 477; Gottlieb, 39 M.S.P.R. at 609.

More generally, as the Director of the PVAHCS, the appellant was not

personally tasked with doing the day-to-day data entry to place a veteran on the

EWL. (AF, Tab 6, Performance Assessment, pp. 24-34). To the extent an agency

wishes to hold a manager responsible for any failures of his or her subordinates,

i.e., those that occur on his or her watch, it may do so. See, generally, Miller v.

Department of Navy, 11 M.S.P.R. 518, 521 (1982) (“A supervisor, by his very

position, may be held accountable for improprieties stemming from the actions of

his subordinates”). However, in order to do so, an agency must identify the

subordinates, show what the subordinates’ failures were, show why the manager

should have known about them and show that he or she failed to take action to

correct the identified failures. See id. at 519-21. See also Mauro v. Department

of Navy, 35 M.S.P.R. 86, 91-93 (1987) (same). To phrase it more colloquially, an

agency must connect the dots of fault from the identified failure by the

subordinates back up the line to the manager. The agency did not attempt to do

so here.4 Accordingly, this specification is not sustained.

3 This omission is made more glaring when Specification A is compared to

Specification B, which also describes an unacceptable state of affairs, but whichexplicitly states what the agency contends the appellant failed to do about it but shouldhave.

4 The agency argues for a different rule of law, one of strict liability, in essence. It

contends, “Appellant’s actual knowledge of the deficiency is immaterial, since thespecification falls under a charge of ‘lack of oversight.’ Effectively, whether or notAppellant knew that PVAHCS was not in compliance with the Directive, it was herresponsibility to ensure that the facility was in compliance, and she neglected her dutyto do so.” (IAF, Tab 71, p. 12). It cites no authority for such a no-fault proposition, Iam aware of none and I decline to adopt it. Statutes are to be interpreted by starting





15

The next specification, Specification B, supporting the charge of “Lack of

Oversight” alleged that:

According to OIG report number 14-02603-267, around October2012, PVAHCS data management staff identified a backlog of

approximately 2,500 new patient appointments in Primary Carethat were scheduled later than December 1, 2012. Some of theseappointments were scheduled for almost a year in the future.Despite efforts to reduce the backlog, approximately 544 of the2,501 Veterans had not received Primary Care appointments as ofMarch 31, 2014. As of August 26, 2014, approximately 143 ofthese patients had still not received a Primary Care appointment.As the Director of PVAHCS, you knew or should have known thatthe backlog for Primary Care appointments could have jeopardized patient care and safety. Consequently, you should

have taken immediate action to remedy the situation or notifiedyour senior leadership so they were aware and could assistPVAHCS.

(AF, Tab 1, PAM, p. 9).

Thus, the agency must prove the appellant either did not take “immediate

action to remedy the situation” or that she did not “notif[y] [her] senior

leadership” of it. See LaChance, 147 F.3d at 1371; Chauvin v. Department of the

Navy, 38 F.3d 563, 565 (Fed. Cir. 1994); James v. Department of the Air Force,

73 M.S.P.R. 300, 304 (1997). In support of this specification, the agency relies

almost exclusively on a particular page of the OIG Final Report. (AF, Tab 71,

Agency’s Merits Brief, pp. 12-15). This is permissible. See Addison v.

Department of Health and Human Services , 46 M.S.P.R. 261, 269 (1990) (“While

with the plain meaning of their language. Hawkins v. United States , 469 F.3d 993, 1000(Fed. Cir. 1996). Section 713 speaks in terms of “misconduct.” That term is defined in

the statute to mean “neglect of duty, malfeasance, or failure to accept a directedreassignment[.]” 38 U.S.C. § 713(g)(2). “Neglect of duty” is not itself specificallydefined, and the common definition of “neglect” is “to give little attention or respect to:disregard” or “to leave undone or unattended to esp. through carelessness.” Merriam-

Webster’s Collegiate Dictionary, 829 (11th ed. 2003). Thus, even under the agency’stheory of neglect of duty, the agency would have to prove there was something theappellant was supposed to do, some task or undertaking she was to accomplish, but thatshe left undone or disregarded.





16

it is true that the agency did not introduce the original workpapers on which the

removal action was based, the Board has found that the introduction of such

original sources is not required to sustain an agency action”). That portion of the

OIG Final Report recounts that, in October of 2012, approximately eight monthsafter the appellant started in Phoenix, data management employees of the division

of the agency known as the “Health Administration Service” (HAS) “identified

new patient appointments in Primary Care that were scheduled later than

December 1, 2012.” (AF, Tab 6, Subtab 6, Final OIG Report, p. 120). According

to the OIG report, “[s]ome of these appointments were scheduled for almost a

year in the future” and these delayed appointments “represented a backlog of

2,501 appointments.” ( Id.). The report states that “[t]he goal at the time” was to

divide that backlog of new patient appointments up among the primary care

providers available and get them earlier appointments. ( Id.). According to the

report, HAS staff distributed these waiting patients among 43 providers, 28 of the

providers at the main Phoenix facility with the remainder at external agency

clinics. ( Id.). As set forth in the report, “[d]espite the effort to redistribute the

veterans to other providers with the intent of getting an earlier appointment, we

determined 544 of the 2,501 veterans had not received Primary Care

appointments as of March 31, 2014.” ( Id.). The OIG report then recounts that its

investigators went through the electronic health records of 200 of the 544

veterans who had still not had an appointment by that time. Id. Of that 200, 143

were still waiting to be seen, with the remainder no longer needing an

appointment for various reasons ranging from moving out of the Phoenix area all

the way to the death of the waiting patient. ( Id.).

The appellant challenges the overall accuracy of the report, beginning with

the fact she was not interviewed by the OIG’s investigators for it. She does not,

however, take specific issue with the accuracy of the numbers contained in this

section of the OIG report. Rather, she contends that this specification “should

fail because: 1) Ms. Helman’s team did make significant, effective efforts to





17

reduce the primary care backlog, as described in the text of the specification; 2)

those aware of the actual circumstances at the Phoenix VA knew the backlog

could not have been ‘immediately’ eliminated; and 3) the Phoenix VA backlog

was well known to senior Agency leadership at both the VISN 18 and VACOlevels.” (AF, Tab 70, Appellant’s Merits Brief, p. 40).

The agency has not proven the appellant failed to take “immediate action to

remedy the situation[.]” As set forth in the very same paragraphs of the OIG

Final Report on which the agency relies, a plan was instituted “at the time” to

divide these backlogged patients up among primary care providers to get them in

sooner, and this was, in fact, done, with each provider getting approximately 67

of these patients. (AF, Tab 6, Subtab 6, Final OIG Report, p. 120). The remedy

was not fully effective, such that each and every one of these veterans had been

seen by March 31, 2014 upon the OIG’s follow up, but the vast majority had

been. This specification does not assert that the appellant should have seen to it

that all of these patients were seen before March 31, 2014 but did not, although it

could have been written that way had the agency chosen to do so. Again, the

agency must prove specifically what it charges, and I may not modify its

language for it. See Minor , 115 M.S.P.R. at 311; Walker , 102 M.S.P.R. at 477;

Gottlieb, 39 M.S.P.R. at 609. See also Parbs v. U.S. Postal Service, 107

M.S.P.R. 559, 564 (2007) (“the agency is required to prove the charge as it is set

out in the notice of proposed removal, however, not some other offense that

might be sustainable by the facts of the case”).

Charge 1, Specification B, also alleges, in the alternative, that the appellant

did not “notif[y] [her] senior leadership” about this 2,501 patient backlog in

primary care.5 With this second prong of Specification B, the appellant takes

5 It is unclear what specific persons or offices the term “senior leadership” is meant to

encompass. Perhaps that is by design, perhaps not. As will be explained below, failureto identify them and submit evidence from them about whether or not the appellant





18

issue with the implication that the agency’s senior leadership was unaware of

problems with getting all veterans who put in for appointments and needed to be

seen actually seen. The agency concedes, through the declaration of Barbara

Schuster, Associate Director of the Veterans Health Administration Access andClinical Administration Program, that “VHA was aware of ‘pockets’ of

scheduling issues occurring sporadically throughout the nation[.]” (AF, Tab 71,

Schuster Declaration, p. 50). I find it more likely than not that at least some

senior agency leaders were aware, or should have been, of nationwide problems

getting veterans scheduled for timely appointments at or around the times of the

events described in this specification, and that the agency’s Phoenix facilities, as

a part of the nationwide system, also had those problems. (AF, Tab 70, Petzel

Affidavit, p. 74; Bowers Declaration, pp. 76-80). Nevertheless, the implied

assertion that senior leaders were unaware of that problem and would have

provided help had they only known is not something the agency needs to prove in

order to sustain this specification. It is a description of surrounding

circumstances, accurate or not, for the appellant’s alleged failure to notify, which

is the misconduct at issue. See Larry v. Department of Justice, 76 M.S.P.R. 348,

355 (1997); Lawton v. Department of Veterans Affairs, 53 M.S.P.R. 153, 156

(1992).

In reviewing the evidence for this specification, I am mindful that the

appellant does not need to disprove the charges against her. Cf. Jackson v.

Veterans Administration, 768 F.2d 1325, 1329 (Fed. Cir. 1985) (“the agency [is]

in the position of a plaintiff bearing the burden of first coming forward with

evidence to establish the fact of misconduct, the burden of proof, and the ultimate

burden of persuasion, with respect to the basis for the charge or charges. The

employee (while denominated appellant) has the advantageous evidentiary

informed them of the October 2012 2,501 patient backlog does not redound to theagency’s advantage.





19

position of a defendant with respect to that aspect of the case”). This

specification sets forth two particular actions the appellant is alleged not to have

done with regard to a particular set of circumstances and refers the reader to the

Final OIG Report detailing those circumstances. An agency may rely on a failureto deny specific, detailed charges as part of its proof. See Berkner v. Department

of Commerce, 116 M.S.P.R. 277, 279, 285 (2011) (an appellant’s failure to deny

specific allegations was considered in determining whether an agency had met its

burden); Bixby v. U.S. Dept. of Agriculture, 24 M.S.P.R. 13, 19 & n.4 (1984)

(same); Duncan v. U.S. Dept. of Educ., 15 M.S.P.R. 31, 32 n.2 (1983) (same). A

failure to deny detailed charges is not, however, sufficient by itself. Delancy v.

U.S. Postal Service, 88 M.S.P.R. 129, 133 (2001) (“where the letter of charges is

not merely conclusory, but sets forth in great factual detail the employee’s errors

and deficiencies, and where the notice is corroborated by other evidence , the

letter of charge may be considered as forming part of the agency’s valid proof”)

(emphasis original).

In none of her own statements, or those of her attorneys made on her

behalf, at any point after she received the agency’s PAM, or even the first,

rescinded proposed removal, does the appellant assert that she did alert someone

above her about the 2,501 veteran backlog for primary care appointments

revealed in October 2012. (AF, Tab 1, Appellant’s Response to PAM; Tab 40,

Ex. ww, Appellant’s Response to Proposed Removal; Tab 70, Appellant’s Merits

Brief; Tab 72, Appellant’s Response Brief). Although she submitted a

declaration from her immediate superior, Susan Bowers, in which Bowers attests

that she “regularly worked with and had many conversations with Ms. Helman

about what and how VISN 18 officials would assist PVAHCS to improve the

scheduling process, and thus decrease the backlog of veteran clients waiting for

appointments[,]” at no point does Bowers aver that the appellant ever raised the

issue of the October 2012 2,501 veteran backlog with her. (AF, Tab 71,

Appellant’s Merits Brief, Bowers Decl. p. 76).





20

The question then becomes, what other proof has the agency offered to

establish the appellant did not notify “senior leadership” about this backlog. See

Delancy, 88 M.S.P.R. at 133. Based on how the agency framed this specification,

it must prove a negative, that senior leadership was not notified about thisOctober 2012 backlog by the appellant. Absent an admission by the appellant,

which she has not offered, to prove the lack of notification, the agency would

have to adduce affidavits from whatever real persons comprised “senior

leadership” at the time saying, “She did not notify me about that.” It has not

done so. I conclude that a detailed proposal which is not specifically denied is,

without more, too slender a reed to constitute preponderant evidence. See

Delancy, 88 M.S.P.R. at 133. This specification is not sustained.

The penultimate specification for this charge, Specification C, alleges:

On or around June 6, 2012, Dr. Katherine Mitchell, then Directorof the PVAHCS Emergency Department, sent a report of contactto Catherine Gibson, Nurse Manager for the EmergencyDepartment. In this report of contact, Dr. Mitchell disclosed thatcertain nurses in the Emergency Department lacked triage skillsand were being insubordinate. On or around December 3, 2012,Dr. Mitchell was reassigned as Director of the Emergency

Department to a position as Director of the Post-DeploymentClinic. Dr. Mitchell’s reassignment was directed by Dr. JamesFelicetta, PVAHCS’ Chief of Medicine, who reported to Dr.Darren Deering, PVAHCS’ Chief of Staff. Dr. Deering was yourdirect subordinate. You knew or should have known that Dr.Mitchell’s reassignment could be perceived as retaliation for herdisclosures. You should have intervened in Dr. Felicetta’sdecision to reassign Dr. Mitchell.

(AF, Tab 1, PAM, p. 10).

To start, although this specification refers to a disclosure made by Dr.

Mitchell on or about June 6, 2012 to ED Nurse Manager Gibson, in its merits

brief, the agency does not even mention this disclosure but instead relies on a

disclosure made by Dr. Mitchell directly to the appellant in February 2012. (AF,

Tab 1, PAM, pp. 9-11; Tab 71, Agency’s Merits Brief, pp. 15-19). That





21

purported disclosure is nowhere referred to in the PAM, even in passing. (AF,

Tab 1, PAM, pp. 9-12). The agency cannot charge the appellant knew or should

have known that failing to stop the reassignment of Dr. Mitchell could have been

perceived as retaliation because of one set of events, those which flow from Dr.Mitchell’s June 6, 2012 report of contact to Gibson, and then attempt to prove

now she should have known that because of an entirely different set of uncharged

events. See LaChance, 147 F.3d at 1372 (“The principle underlying [King v.]

Nazelrod [43 F.3d 663 (Fed. Cir. 1994)] is that the agency must prove what it

charges; where the specification contains the only meaningful description of the

charge, Nazelrod supports the Board’s conclusion that the agency must prove

what it has alleged in the specification”) (emphasis added); Alvarado v.

Department of Air Force , 103 M.S.P.R. 1, 7 (2006) (“we are bound to decide this

case according to how the charge is written, not how it could or should have been

written”). Having identified no evidence in its merits or rebuttal briefs about the

June 6, 2012 disclosure and what the appellant should have known about that, this

specification is not sustained.

Finally, Specification D of Charge 1 alleges:

Between May 2011 and April 2012, PVAHCS Public AffairsSpecialist Paula Pedene cooperated with an administrativeinvestigation concerning PVAHCS leadership and made numerousdisclosures to PVAHCS leadership about staffing and resourcesand experiencing a hostile work environment. Ms. Pedene alsomade a disclosure to Veterans Integrated Service Network 18about PVAHCS leadership failing to restore certain public affairsfunctions. On or about December 10, 2012, PVAHCS’ AssociateDirector Lance Robinson, your direct subordinate, reassigned Ms.Pedene to the Education Service pending an investigation into an

alleged computer security breach. Numerous other PVAHCSemployees who may have committed computer security breacheswere not reassigned.

You knew or should have known that Ms. Pedene had madedisclosures to PVAHCS leadership. You knew or should haveknown that Ms. Pedene’s reassignment could be perceived as





22

retaliation for her disclosures. You should have intervened in Mr.Robinson's decision to reassign Ms. Pedene.

(AF, Tab 1, PAM, p. 10).

In support of this specification, the agency begins with a May 10, 2011

memorandum from Pedene to the Medical Center Director in Phoenix at the time,

and the Associate Director, as well. (AF, Tab 9, Pedene Public Affairs

Memorandum, Subtab 21, pp. 25-28). Its subject was “Public Affairs

Recommendations.” ( Id.) In it, Pedene requested realignment of the reporting

structure in Phoenix so that the Public Affairs Officer reported directly to the

Medical Center Director. ( Id .) She also requests restoration of $50,000.00 for

production of an agency television show, “To Your Health,” restoration of

“contractual support” for “PR writers” and replacement of a position in Public

Affairs with an Audio Visual Production Specialist. ( Id .) Pedene posits that

“[t]he funding for the PR writer function will assist with news releases, fact

sheets, media advisories and the like which have all declined without the

contractual support.” (Id.) She also asks that the Public Affairs Officer be

empowered to “‘Take action to raise the public’s awareness of VHA’s willingness

to accept gifts and the productive use of GPF gifts’; and, ‘Communicate VHA giftneeds to potential donors’ for Parade and Community Outreach in accordance

with VHA Directive 4721.” ( Id.) She asserts that this authority would “allow

the PAO to make the community aware of parade and community outreach needs

that extend beyond the facilities current budget allocations.” ( Id.) Pedene also

requested restoration of “support of the VA Veterans Day Parade Committee and

activities surrounding this VA Regional Event[.]” ( Id.) Pedene then lists several

other suggested changes and empowerments for the public affairs function. ( Id.)She concludes the substance of the memorandum by noting “[e]very item listed in

this memo had been in place and has been systematically removed during the past

two years[,]” and that, “Public Relations should be granted at least 1/10th

of 1%





23

of the company's overall operating budget for a standard program. For us that

means $460,000. The current PR budget is $258,000 including salaries.” ( Id.)

The agency, however, has mischaracterized this memorandum. The agency

states “On May 10, 2011, Paula Pedene, the Public Affairs Officer for PVAHCS,submitted a memorandum to Appellant through PVAHCS’s Associate Director

Lance Robinson requesting, among other things, a restructuring of PVACHS’s

public affairs strategy and additional funding.” (AF, Tab 71, Agency’s Merits

Brief, p. 19). By the agency’s own admission, the appellant did not start her

employment at the PVAHCS until February 26, 2012. (AF, Tab 71, Agency’s

Merits Brief, p. 4) (“Appellant was employed as the Director of the Phoenix VA

Health Care System (PVAHCS) from February 26, 2012 to November 24, 2014”

citing “Tab 18, SF-50s, pp. 23 & 33”). The agency does not explain why this

memorandum would have been sent to the appellant approximately nine months

before she began to work there, and I find it more likely than not that it was not.

Moreover, although it is not completely clear when Robinson’s tenure as an

Assistant Director in Phoenix began, for reasons discussed below I find it more

likely than not it was after this May 10, 2011 memorandum was written.

Before writing this memorandum, on May 5, 2011, Pedene was interviewed

by members of an agency Administrative Investigation Board looking in to

matters involving “fee basis, sexual harassment, and hostile work environment at

the VA Medical Center in Phoenix, Arizona.” (AF, Tab 11, Pedene Interview

Transcript, Subtab 26, p. 5). She had previously provided some documentation to

this board. ( Id.) Pedene’s interview centered on actions taken over the previous

two years by the director who preceded the appellant in Phoenix, Perez, and an

Assistant Director, a Dr. Bacorn, who directly supervised Pedene. ( Id ., pp. 3-

60).

Next, the agency points to a memorandum dated July 8, 2011, from Pedene

to the VISN 18 Director, to be routed through the Phoenix Medical Center

Director. The agency avers, “On July 8, 2011, in a message sent through





24

Appellant to the Network Director for Veterans Integrated Service Network

(VISN) 18, Ms. Pedene noted that she was facing a hostile work environment

because of PVAHCS’s Associate Director Robinson, a direct subordinate of

Appellant, when the Associate Director tried to divest Ms. Pedene of theresponsibi lity of coordinating the annual Veterans Day Parade.” (AF, Tab 71,

Agency’s Merits Brief, p. 19). This, as with the May 10, 2011 memorandum, is

simply a misrepresentation of the facts of this case.6 The appellant did not begin

her tenure as the Medical Center Director in Phoenix until February 26, 2012. As

such, I find the memorandum was not routed through the appellant as she had not

yet begun her employment in Phoenix. Furthermore, the memorandum never

mentions Robinson at all. (AF, Tab 9, Pedene Hostile Environment

Memorandum, Subtab 20, pp. 22-24). It alleges that Dr. Bacorn was perpetuating

a hostile environment. The very first sentence reads, “I am writing to inform you

that it appears as if the hostile work environment, initiated under Gabriel Perez,

is still present at the PVAHCS, under the auspices of the actions being conducted

by the Associate Director (AD) Dr. Bacorn.” ( Id., p. 22).

The agency has also mischaracterized another memorandum from Pedene.

It relies on a November 25, 2011 memorandum addressed to “VISN 18 Network

Director” titled “Request for action regarding restoration request.” (AF, Tab 9,

Subtab 22, Pedene Action Request Memorandum, p. 30). The agency states “As

of November 25, 2011, Ms. Pedene continued to face a hostile work environment.

This time, she by-passed Appellant and went directly to Appellant’s supervisor

Susan Bowers with her complaints.” (AF, Tab 71, Agency’s Merits Brief, p. 19).

6 It is unclear which of the agency attorneys who have entered their appearance in this

case actually authored these passages. Pedene’s memoranda are addressed to positiontitles, not actual persons, and the agency may have lost sight of who was where when.While they do not help defend against the appellant’s argument that the agency isengaged in a win-at-all-costs railroading campaign, I assume these misrepresentationswere inadvertent.





25

Again, however, at the time of this memorandum, if the appellant had not yet

arrived in Phoenix, Pedene could not have been bypassing her.7

Another piece of documentary evidence the agency stands on in support of

this specification, although not “a few weeks after Ms. Pedene’s lastmemorandum to the VISN Director” as the agency advances, does at least

postdate the start of the appellant’s employment in Phoenix. On December 10,

2012, Robinson issued a memorandum to Pedene which advised her she was

“being temporarily administratively reassigned for an initial period of thirty (30)

days” because a “complaint was filed against [her] for possible misconduct. The

misconduct alleged is of a very serious nature and during the investigation [sic]

would be inappropriate for [her] to retain access to [her] current confidential files

or [sic] in contact with individuals who may be later identified as negatively

affected by [her] actions.” (AF, Tab 9, Subtab 23, Robinson Reassignment

Memorandum, p. 33.)

The allegations against Pedene were that she had committed a “computer

security violation when Ms. Pedene (who is legally blind) allowed her husband,

an official VA volunteer, to access her computer to transfer pictures he took of

the Phoenix VA (sic) Parade, into a PowerPoint presentation.” (AF, Tab 11,

Subtab 27, Pedene ROI, p. 66). After Pedene had apparently filed a

whistleblower’s complaint with the Office of Special Counsel, the agency

conducted an internal investigation in to Pedene’s activities and the appellant’s

and Robinson’s responses to them. (AF, Tab 11, Subtab 27, Pedene ROI, p. 64.)

The report generated from that investigation concluded, in pertinent parts, as

follows:

For purposes of this review, it is accepted that Ms. Pedene’sactions as identified herein constitute protected whistleblowing

7 In this memorandum, Pedene takes issue with certain actions and inactions of “Interim

Director, Dr. Jamie Robbins,” and an unidentified Associate Director and “Asst.Director.” (IAF, Tab 9, Subtab 22, Pedene Action Request Memorandum, pp.30-31).





26

activity. Even though the initial protected disclosure occurred inMay 2011 prior to the arrival of Ms. Helman and Mr. Robinson, both of them were aware of Ms. Pedene’s prior whistlebloweractivity and her continued efforts to restore staffing and budgetreductions she attributed to that activity. [***]

( Id., p. 81).

The allegation that Ms. Pedene’s whistleblowing activity was acontributing factor to her detail in Education Service is sustained. Numerous employees alleged to have been involved in similarcomputer or privacy violations were not detailed to other positions. Additionally, neither the original detail nor subsequentextensions were properly documented in accordance with VA policy. [***] Although Ms. Pedene clearly violated VA ITsecurity policy and corrective action was warranted, as confirmed

by OGC and VACO HR, her violations do not establish clear andconvincing evidence that Ms. Pedene would have been treated inthe same manner in the absence of whistleblowing. Lastly, itmust be noted that Ms. Pedene inadvertently committed an earlier privacy violation in January 2012 for which she received noadverse personnel action. This "no action" arguably militatesagainst a retaliatory motive, but does not sufficiently overcomethe obvious disparate treatment Ms. Pedene received followingthe computer incident in December 2012.

( Id., p. 82).

The appellant’s attack on the agency’s case for this specification is both

legal and factual. The appellant argues first that failing to stop a reassignment

which “could be perceived as retaliation,” as the specification states, is not

actionable misconduct because the standard is too amorphous, in that, any action

“could look objectionable to someone, somewhere, at some time,” the standard

departs from related precedent, the agency has not previously held managers to

such a standard and, if the appellant had stopped the reassignment because it

could be perceived as retaliation for whistleblowing, she would have directly run

afoul of the Whistleblower Protection Act because she would have failed to take a

personnel action because of a protected disclosure. (AF, Tab 70, Appellant’s

Merits Brief, pp. 44-46).





27

While it has some surface appeal, the short answer to the first objection is

that I am not in the business of running the agency or deciding what standards of

conduct it ought to set for its senior managers in managing its institutions; the

agency is free to bind their hands with Gordian knots if it chooses. Cf. AmericanFederation of Government Employees, Local 2017 v. Brown, 680 F.2d 722, 726

(11th Cir. 1982); Jackson v. Department of Veterans Affairs, 97 M.S.P.R. 13, 18-

19 (2004). The particular language of the statute at issue, Section 713(a)(1) of

title 38, authorizes a removal “if the Secretary determines the performance or

misconduct of the individual warrants” it. This section gives very broad authority

to the Secretary of Veterans Affairs in determining what constitutes misconduct

for an employee in the Senior Executive Service at that agency.

As to departing from precedent, in the cases the appellant cites, the

employees were charged by the Office of Special Counsel with actually violating

the Whistleblower Protection Act (WPA) or another provision of law. Costello v.

Merit Systems Protection Bd., 182 F.3d 1372, 1375 (Fed. Cir. 1999) (“the Office

of Special Counsel filed complaints with the Board against Costello and Strehle,

seeking disciplinary actions (under 5 U.S.C. § 1215) against them for alleged

violations of the Whistleblower Protection Act”); Special Counsel ex rel. Perfetto

v. Dep't of Navy, 85 M.S.P.R. 454, 458-59 (2000) (“In a stay request, OSC need

not prove, as part of a prima facie case, that the protected activity was a

significant factor in the agency’s termination decision. Rather, that is part of its

burden of proof on the merits”); Special Counsel v. Nielson, 71 M.S.P.R. 161,

177 (1996) (“The respondent was charged with violating 5 U.S.C. §

2302(b)(9)(A) and (C)”). I am aware of no precedent which would require the

agency to charge the appellant with actually violating a law, even if it believed

she had done so, and the appellant does not cite any. An agency may draft

misconduct charges in the manner it thinks best. Having drafted a charge which

states the appellant “knew or should have known that Ms. Pedene’s reassignment

could be perceived as retaliation for her disclosures[,]” the agency does not need





28

to prove the appellant actually violated the provisions of the WPA, only that

circumstances were such that a perception of retaliation could arise. That does

require reference to the WPA’s standards, but not actual proof of violation.

The issue of not having previously charged a senior manager with such anoffense speaks to the propriety of the penalty, not the viability of the charge

itself. See Lewis v. Department of Veterans Affairs, 113 M.S.P.R. 657, 664

(2010) (lack of notice of a change in policy is a factor in penalty determinations).

Finally, I conclude the appellant misconstrues the WPA. While her

interpretation may follow from a literal reading of the act, interpreting it in the

manner she suggests would lead to absurd results, and I decline to do so. See

Wassenaar v. Office of Personnel Management , 21 F.3d 1090, 1092 (Fed. Cir.

1994). The act is meant to protect whistleblowers from harm. See Schmittling v.

Department of Army, 92 M.S.P.R. 572, 579 (2002) (“the ‘purpose’ language of

the WPA suggests that Congress sought to broadly protect whistleblowers from

‘adverse consequences’ as a result of prohibited personnel practices, whether

those ‘adverse consequences’ result from personnel actions that are taken or

personnel actions that are not taken”). In the context of this scenario, leaving

Pedene in her position would not have been an infliction of harm on her. The

WPA does not shield the appellant as she argues.

With her factual challenge, the appellant contends the report of

investigation is unreliable and points out that she, Robinson and OIG Special

Agent Richard Cady were not interviewed for the report. (AF, Tab 11, Subtab 27,

Pedene ROI, p. 66) (listing persons interviewed). Moreover, none of the persons

interviewed, save Pedene, an interested party, were under oath and, the agency

has proffered no explanation for why that is. ( Id.) See Borninkhof v. Department

of Justice, 5 M.S.P.R. 77, 87 (1981) (in weighing the probative value of hearsay,

considerations include whether the out of court statements were made under oath,

and if not, why not, and whether they were made by persons disinterested in the

events). Additionally, the witness statements and exhibits the report refers to





29

were not appended to the report, (AF, Tab 11, Subtab 27, Pedene ROI, p. 64-84),

and I cannot look past even the first level of hearsay to evaluate that same

evidence now. These proceedings are de novo, the agency must prove its case by

preponderant evidence and I cannot simply assume the accuracy of the report inlight of the evidence the appellant has adduced about it.

The supplemental declarations from Mary Monet and Laurie Butler the

agency introduced in support of this charge do not help and actually undermine

its position somewhat. The reports generated by Monet are not actually appended

to her declaration, although there is an electronic place holder for them. (AF,

Tab 71, Agency’s Merits Brief, Monet Decl., pp. 62-63). In Butler’s declaration

she avers she directed her staff to search a PVAHCS database which tracks all

disciplinary and adverse actions taken there. (AF, Tab 71, Agency’s Merits

Brief, Butler Decl., p. 60). “The search included the terms private, privacy,

HIPAA, violation, access, disclosure, disclose, disclosed, reassign, reassignment,

and reassigned.” ( Id.) That “search resulted in 24 cases from January 2012 to

August 22, 2014 where an employee was charged with a privacy access and/or

disclosure violation. This involves the case of Dr. Katherine Mitchell.” ( Id.).

Butler also directed her staff to “pull all available disciplinary files (paper copy)

for the 24 actions that were identified.” ( Id. p. 61). They “could locate only 21 of

the 23 files.”8 ( Id.). She further avers “In none of the 21 instances of privacy

access/disclosure violations that I reviewed, other than in the case of Dr.

Katherine Mitchell, was the offending employee placed on administrative absence

or reassigned.” ( Id.). If the agency really did mean these declarations support its

case regarding the reassignment of Pedene, records relating to her reassignment

were not there, which casts some doubt on the accuracy of those records. The

agency apparently relied on those records, or some such records, for its finding

8 I take the change of 24 to 23 to be a typographical error.





30

that “[n]umerous employees alleged to have been involved in similar computer or

privacy violations were not detailed to other positions.”

The appellant introduced an affidavit and declaration from Robinson

wherein he avers Cady asked him to temporarily reassign Pedene while the OIGinvestigated allegations of financial impropriety by her.9 (AF, Tab 70, Ex. 4,

Robinson Aff., p. 86; Ex. 4a, Robinson Decl., p. 89). Attempting to blunt this

last point, the agency introduced a declaration from Cady where he states, “In

January 2013, my office looked into an investigative referral regarding Ms. Paula

Pedene at the Phoenix VA Health Care System (PVAHCS). I never directed

PVAHCS Associate Director Lance Robinson to reassign Ms. Pedene to another

position.” (AF, Tab 71, Agency’s Merits Brief, Cady Decl., p. 42). I find it more

likely than not both statements are true.10

Cady did not direct Robinson to

reassign Pedene, because as an investigating agent he likely had no authority to

direct the taking of a personnel action, and he did request that Robinson reassign

her so that, if there actually was wrongdoing to be uncovered, Pedene would not

be in a position to cover her tracks as easily or otherwise interfere with the

investigation.

To make out a prima facie case of whistleblower retaliation before the

Board, one must allege: (1) he or she engaged in whistleblowing activity by

making a protected disclosure, and (2) the disclosure was a contributing factor in

the agency’s decision to take or fail to take a personnel action. Ormond v.

Department of Justice, 118 M.S.P.R. 337, 339 (2012) (citing Yunus v. Department

9

The report sets out the appellant’s involvement in the misuse of funds allegation andwhy her actions in that regard appeared retaliatory, but the agency did not charge herwith anything related to that, only the reassignment by Robinson.

10 The agency argues that “Appellant has claimed that OIG Agent Cady advised that

Robinson reassign Pedene. Agent Cady specifically denies this. (Decl. of Agent Cady, ¶3.)” (IAF, Tab 71, Agency’s Merits Brief, p. 20 n.11). Again, that is simply not whatCady says in the declaration.





31

of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001)). A protected

disclosure is a disclosure that a person reasonably believes evidences a violation

of any law, rule, or regulation, 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)(A). I conclude that Pedene’s statements to the

Administrative Investigation Board or the appellant herself could be construed as

disclosing an abuse of authority. However, if an agency can prove, by clear and

convincing evidence it would have taken the same actions in the absence of the

protected disclosure, no unlawful retaliation has occurred. See Whitmore v.

Department of Labor , 680 F.3d 1353, 1367 (Fed. Cir. 2012).

Putting aside for now the Miller issue discussed with Specification A,

supra, in considering all the evidence identified by the parties for this

specification, I conclude the agency has not demonstrated, by preponderant

evidence, the appellant “knew or should have known that Ms. Pedene’s

reassignment could be perceived as retaliation for her disclosures.”

The evidence the agency introduced is marginally probative at best. The

report generated from the internal investigation does not pass muster under

Borninkhof and cannot carry the day for the agency by itself. Even if it did carry

significant probative value, one of the things it points out is that Pedene was

observed violating agency computer security policies, apparently for a second

time. See Russell v. Department of Justice, 76 M.S.P.R. 317, 325 (1997) (“An

employee is not completely shielded from his misconduct by anti-discrimination

laws or the WPA. Rather, those laws shield an employee only to the extent the

record supports a finding that he would not have been disciplined except for his

status as a whistleblower or a member of a protected class”). The OIG’s

involvement in Pedene’s reassignment is not mentioned in the report the agency

heavily relies on. Moreover, something not addressed in the report is that before

Robinson reassigned Pedene, he consulted with the PVAHCS Human Resources

Officer, Maria Schloendorn, who counseled that Pedene should be reassigned





32

while the Office of Inspector General conducted its investigation. (AF, Tab 70,

Ex. 6, Agency’s Response to Appellant’s Request for Admission 70). There is no

contention by the agency that Cady or Schloendorn had any reason to know about

Pedene’s disclosures or that Robinson was prone to ignoring Schloendorn’sadvice. When the agency’s evidence is weighed against the facts that an OIG

agent specifically requested Ms. Pedene’s reassignment, and that Robbins asked

his Human Resources Officer what he should do about that request and she

advised he should reassign, I conclude Robinson would have taken the same

action, Pedene’s disclosures notwithstanding. The agency has not met its burden

on this specification, and the charge as a whole is not sustained.

With its second charge, Charge 2 is labeled “Conduct Unbecoming a Senior

Executive,” and has two specifications. (Tab 1, PAM, p. 10.) This is also a

generic charge with no specific elements of proof. It is established by proving

that the appellant committed the acts alleged in support of the broad label. See

LaChance, 147 F.3d at 1371; Canada v. Department of Homeland Security, 113

M.S.P.R. 509, 513 (2010).

Charge 2, Specification A reads as follows:

On September 20, 2013, you placed Dr. Mitchell onadministrative absence pending investigation into an allegationthat she violated patient privacy by providing Senator McCainwith a list of patients who had committed suicide. BetweenJanuary 2, 2012 and August 22, 2014, PVAHCS investigatednumerous data breaches. There is no evidence any of the subjectsof these investigations were placed on administrative absence.You knew or should have known that Dr. Mitchell made adisclosure to Senator McCain. You knew or should have knownthat placing Dr. Mitchell on administrative absence could be

perceived as retaliation for her disclosures.(AF, Tab 1, PAM, p. 10.)

In its merits brief, the agency argues that the appellant “either engaged in

retaliation or in conduct that could be perceived as retaliation.” (AF, Tab 71,

Agency Merits Brief, p. 22). I will not address whether the conduct alleged in





33

this specification constituted actual retaliation because the agency charged the

appellant only with engaging in conduct that she knew or should have known

“could be perceived as retaliation.” (AF, Tab 1, PAM, p. 10). It is immaterial

whether the appellant’s actions were actually retaliatory because the agency didnot charge her with actual retaliation. See LaChance, 147 F.3d at 1372. Rather,

it charged her with creating the possible perception of retaliation. The agency

cannot rewrite the specification at this stage of the proceedings to include

allegations that it could have included in the charging document but did not. See

Minor , 115 M.S.P.R. at 311.

As for the proof of what was actually charged, I find that the agency has

met its burden, and the underlying facts do not appear to be in real dispute. The

agency submitted a copy of the documents that Dr. Mitchell sent to Senator

McCain’s office, which show that, on August 20, 2013, Dr. Mitchell disclosed the

first names and last initials of four Phoenix VAHCS patients who had committed

suicide. (AF, Tab 9, pp. 18-19). The record also shows that, on September 20,

2013, the appellant executed a memorandum notifying Dr. Mitchell that she

would be placed on administrative leave effective immediately. (AF, Tab 7, p.

64). A December 19, 2013 memorandum of counseling signed by Dr. Mitchell’s

immediate supervisor confirms that her disclosure to Senator McCain was the

reason for her placement on administrative leave. ( Id . p. 66). The appellant’s

and Dr. Mitchell’s declarations corroborate these events and the appellant’s

personal awareness of them. (AF, Tab 70, Appellant’s Decl., pp. 71-73, Tab 71,

Mitchell Decl., p. 65).

I also find that the agency has proven that the appellant knew or should

have known that placing Dr. Mitchell on administrative absence could be

perceived as retaliation for her disclosures. (AF, Tab 1, PAM, p. 10). Dr.

Mitchell’s disclosures appear calculated to address what she reasonably believed

was a substantial and specific danger to public health and safety, i.e., the

inadequacy of the Phoenix VAHCS’s suicide prevention efforts, which in Dr.





34

Mitchell’s opinion, contributed to the deaths of the patients named in the

disclosure. (AF, Tab 9, pp. 18-19). See 5 U.S.C. § 2302(b)(8)(A); Parikh v.

Department of Veterans Affairs, 116 M.S.P.R. 197, 206-207 (2011) (the appellant

made a non-frivolous allegation that substandard care at a VeteransAdministration hospital presented a substantial and specific danger to public

health and safety because such substandard care could lead to patient deaths). In

addition, the appellant herself admits that Dr. Mitchell’s disclosures were the

reason that she placed Dr. Mitchell on administrative leave, thus establishing a

connection between Dr. Mitchell’s disclosures and the administrative leave. (AF,

Tab 70, Appellant’s Decl. pp. 71-73). I find that these facts would be sufficient

for Dr. Mitchell to establish a prima facie case under the WPA, as amended, with

the appellant as the retaliating official. See Yunus, 242 F.3d at 1371. Because

Dr. Mitchell’s disclosure is the very reason for placing her on administrative

leave, there is no way establish the same action would have been taken in the

absence of the disclosure. Thus, I find that the agency has established that the

appellant’s act of placing Dr. Mitchell on administrative leave could be perceived

as retaliatory.

Although the appellant does not dispute the facts, she argues that Charge 2,

Specification A fails to make out a case of actionable misconduct. (AF, Tab 70,

Appellant’s Merits Brief, pp. 48-50, Tab 72, Appellant’s Reply Brief, pp. 17-19).

Specifically, she argues that she relied on the advice of her immediate supervisor,

the Phoenix VA Chief of Human Resources, and two different agency attorneys in

determining that Dr. Mitchell should be placed on paid administrative leave

pending an investigation into whether the disclosure violated patient privacy.

(AF, Tab 70, Appellant’s Merits Brief, pp. 48-50, Appellant’s Decl., p. 72; Tab

72, Appellant’s Reply Brief, pp. 17-19). Again, as discussed above, the agency

may set its standards of conduct for its senior managers in the manner it thinks

best. She further argues that no one raised concerns of retaliation at the time, and

that no other employee had been placed on administrative leave for a suspected





35

privacy violation during her tenure because none of those other employees had

released information outside the agency. (AF, Tab 70, Appellant’s Merits Brief,

p. 50; Appellant’s Decl., pp. 71-72; Tab 72, Appellant’s Reply Brief, pp. 49-50).

This evidence and argument appears to be geared toward showing that theappellant’s actions were not, in fact, retaliatory, which as explained above is

beside the point. The agency did not charge the appellant with actual retaliation,

but with taking actions that “could be perceived as retaliatory for [Dr. Mitchells’]

disclosures.” (AF, Tab 1, PAM, p. 10.) The agency has carried it burden on this

issue.

The appellant’s argument is akin to an argument that an appellant might

make in an appeal under 5 U.S.C. Chapter 75 that a proven charge bears no nexus

to the efficiency of the service. See 5 U.S.C. § 7513 (an agency may take an

action covered by this subchapter against an employee only for such cause as will

promote the efficiency of the service); see, e.g., Jordan v. Department of the Air

Force, 36 M.S.P.R. 409, 411 (1988) (although the agency proved its charge of

selling black market motor vehicles off duty, the Board reversed the removal

because the agency failed to establish a nexus between the conduct and the

efficiency of the service). However, this appeal does not arise under 5 U.S.C.

chapter 75; it arises under 38 U.S.C. § 713. Thus, a question is raised: Is there a

nexus requirement for disciplinary actions under that section?

The statute provides, in pertinent part, that “[t]he Secretary may remove an

individual employed in a senior executive position at the Department of Veterans

Affairs from the senior executive position if the Secretary determines the

performance or misconduct of the individual warrants such removal.” 38 U.S.C.

§ 713(a)(1). I find that the plain language of the statute does not contain a

specific nexus requirement as is found in 5 U.S.C. § 7513(a), but it does predicate

the Secretary’s removal authority on the existence of actual misconduct. Cf.

Social Security Administration v. Long, 113 M.S.P.R. 190, ¶ 46 (2010) (the “good





36

cause” standard to remove and administrative judge under 5 U.S.C. § 7521 does

not contain a separate nexus requirement).

As for whether creating the possible perception of reprisal constitutes

actual misconduct, if this were an appeal under Chapter 75, I would be inclined toagree with the appellant that it does not. Any personnel action taken against an

employee who arguably made a protected disclosure, by a manager who arguably

knew about the disclosure, raises an inference of retaliation. See Mudd v.

Department of Veterans Affairs, 120 M.S.P.R. 365, 370-71 (2013). Nevertheless,

employees who have previously blown the whistle are not immune from

performance and conduct deficiencies; nor are they immune from budgetary and

organizational considerations that affect the agency at large, and agency

managers may be required to take action against such employees for legitimate,

nonretaliatory reasons. See 5 U.S.C. § 1221(e)(2); Morgan v. Department of

Energy, 424 F.3d 1271, 1273 (Fed. Cir. 2005) (the Board cannot not order

corrective action in a whistleblower reprisal case if the agency can prove, by

clear and convincing evidence, that it would have taken the personnel action at

issue notwithstanding the protected disclosure); Moeller v. Department of

Veterans Affairs, 62 M.S.P.R. 361, 366-67 (1994) (whistleblowing does not

shield an employee from discipline which is not motivated by retaliation for the

protected disclosure). Thus, in the ordinary case, the possible perception of

whistleblower reprisal, in the absence of something more, would likely not

constitute misconduct. However, as discussed above, the particular language of

the statute gives the Secretary broad discretion in determining what constitutes

misconduct for the agency’s SES. Charge 2, Specification A is therefore

sustained.11

11 Notwithstanding the above, I find that it is proper for me to consider the tenuous

nature of this misconduct, such as it is, in deciding whether the appellant has rebuttedthe reasonableness of the penalty imposed on her. As explained below, this charge,although proven, merits little weight in that regard.





37

Specification B of this charge alleges:

Charge 2, Specification B reads as follows:

You accepted the following gifts from Dennis "Max" Lewis, VicePresident. Jefferson Consulting Group, who you knew or should

have known was a consultant to a healthcare provider that wasseeking to conduct business with one or more PVAHCSCommunity-Based Outpatient Clinics (CBOCs) under yourmanagement:

a. Airline tickets at a cost of approximately $465.07 roundtripfrom Phoenix, Arizona to Vancouver, British Columbia for travelin May 2012;

b. Airline tickets at a cost of approximately $355.60 roundtripfrom Phoenix, Arizona to Portland, Oregon from [sic] travel in

October 2012;c. Admission price of approximately $121.80 for a Pink JeepTour in November 2012;

d. Entry fee of approximately $65 paid on November 27, 2012,for the Runners Den/Fiesta Bowl Half marathon and 5K onDecember 2, 2012;

e. Airline tickets at a cost of approximately $317.60 roundtripfrom Phoenix, Arizona to El Paso, Texas for travel in March2013;

f. Entry fee of approximately $70.25 paid on April 29, 2013 for the Mississippi [Blues] Marathon;

g. Airline tickets at a cost of approximately $1,015.60 roundtripfrom Phoenix, Arizona to Eureka, California for travel in May2013;

h. Airline tickets at a cost of approximately $389.80 roundtripfrom Phoenix, Arizona to Portland, Oregon for travel in June2013;

i. Five tickets and parking for approximately $729.50 paid on

August 24, 2013 to The Mrs. Carter Show World Tour StarringBeyonce on December 7, 2013;

j. Entry fee of approximately $282.98 paid on or about December 11, 2013 for the 2014 P.F. Chang’s Rock 'n' Roll ArizonaMarathon & Half Marathon on December 2, 2013;

k. A trip to Disneyland which cost in excess of $11,000; and





38

l. An entry fee of approximately $105 for you to participate inthe Napa Valley Marathon in 2015.

You knew or should have known that the acceptance of these giftscreates the appearance of a conflict of interest.

(AF, Tab 1, PAM pp. 10-11). For this specification, the agency must prove: (1)

whether the appellant accepted these gifts as alleged, and if so (2) whether she

knew or should have known that such acceptance created the appearance of a

conflict of interest.

For the reasons discussed below in connection with Charge 3, I find that

the agency established that the appellant accepted the following gifts from Lewis:

Item a., roundtrip airline tickets at a cost of approximately $465.07 between

Phoenix and Vancouver for travel in May of 2012; item b., roundtrip airline

tickets between Phoenix and Portland, Oregon at a cost of approximately $355.60

for travel in October 2012; item e., roundtrip airline tickets between Phoenix,

Arizona and El Paso, Texas at a cost of approximately $317.60 for travel in

March, 2013; item h., roundtrip airline tickets from Phoenix, Arizona to Portland,

Oregon at a cost of approximately 389.80 for travel in May, 2013; item i., five

tickets and parking for approximately $729.50 paid on August 24, 2013 to the

Mrs. Carter World Show Starring Beyoncé on December 7, 2013; and item j., an

entry fee of approximately $282.98 paid on or about December 11, 2013 for the

2014 P.F. Chang’s Rock ‘n’ Roll Arizona Marathon and Half Marathon on

December 2, 2013. Also for the reasons discussed below in connection with

Charge 3, I find that the agency failed to establish that the appellant accepted

item g., roundtrip airline tickets between Phoenix, Arizona and Eureka, California

at a cost of approximately $1,015.60 for travel in May, 2013.

Regarding item c., admission price of approximately $121.80 for a Pink

Jeep Tour in November, 2012, I find that the agency has failed to show that the

appellant accepted this as a gift from Lewis. The record contains a receipt

showing that, on November 9, 2012, Lewis booked a Pink Jeep tour for

November 14, 2012 at the cost of $243.59. (AF, Tab 11, pp. 304-05). The record





39

also contains a liability waiver and a trip manifest that appear to be related to this

booking. ( Id . pp. 305-06). The appellant’s name, however, appears nowhere in

any of these documents, and the agency has not explained how it tied this item to

the appellant or concluded that this was a gift for her. In fact, this alleged gift ismentioned nowhere in the agency’s merits brief or its rebuttal brief. In short, the

agency has not identified any evidence that the appellant accepted item c. from

Lewis as alleged in the specification.

I likewise find that the agency failed to prove that the appellant accepted as

a gift from Lewis item d., an entry fee of approximately $65 paid on November

27, 2012 for the Runners Den/Fiesta Bowl Half Marathon and 5K on December 2,

2012. This allegation is not mentioned in the agency’s merits brief or its rebuttal

brief. Nor has my review of the record uncovered any documentation related to

this allegation which would support it.

Regarding item f., an entry fee of approximately $70.25 paid on April 29,

2013 for the Mississippi Blues Marathon, I find that the agency has proven that

the appellant accepted this as a gift from Lewis. Specifically, the record contains

an April 29, 2013 registration confirmation for that marathon, indicating that the

appellant was the registrant and that Lewis paid the $70.25 entry fee (AF, Tab 11,

p. 329). Cady’s declaration confirms that the IG uncovered this document during

its investigation. (AF, Tab 71, Cady Decl. p. 44).

Regarding item k., a trip to Disneyland costing “in excess of $11,000,” I

find that the agency has proven that the appellant accepted this gift from Lewis as

well. The record contains a January 13, 2014 email from Lewis to the appellant

stating “Enjoy.” (AF, Tab 11, p. 238). Attached to the email is a reservation

confirmation for the appellant and what appear to be six of her family members

for an 8-night stay at Disneyland, plus several upgrades and amenities. ( Id., p.

239). The total amount of the reservation is blocked out on the attachment, but

the record contains an unredacted copy of it as well, showing the total amount to

be $11,205.28, and that payment in full had been made on January 13, 2014. (Id. ,





40

p. 243). The record also contains a document titled “Information on Payment,”

showing that Lewis engaged in a credit card transaction of exactly $11,205.28 on

that date. ( Id ., p. 154). Finally, the record contains a printout of a subpoenaed

Walt Disney computer record stating that a Disney employee “spoke w/DennisLewis who made this resv and paid for it . . . This is a secret gift to this family

and only Sharon knows the source but even she does not know the cost.” ( Id ., p.

184). These facts are confirmed by Cady’s declaration about the investigation.

(AF, Tab 71, Cady Decl., p. 46).

Regarding item l, an entry fee of approximately $105 for the appellant to

participate in the Napa Valley Marathon in 2015, I find that the agency has

proven that the appellant accepted this as a gift from Mr. Lewis. Specifically, the

record contains a March 28, 2014 registration confirmation for that marathon,

indicating that the appellant was the registrant and that Mr. Lewis paid the

$105.00 entry fee. (AF, Tab 11. p. 246). Cady’s declaration again confirms that

the OIG uncovered this document during its investigation. (AF, Tab 71, Cady

Decl., p. 46).

Having proven that the appellant accepted nine of the twelve alleged gifts

from Lewis, the agency must now prove, as it charged, that the appellant knew or

should have known that the acceptance of those gifts created the appearance of a

conflict of interest. See LaChance, 147 F.3d at 1371. For the following reasons, I

find that the agency has met its burden of proof.

First, I find that the appellant knew that Lewis was a Vice President at

Jefferson Consulting at the time that she accepted these gifts from him, and that

she knew that Jefferson Consulting was doing work for companies doing business

or seeking to do business directly with the agency. The record contains an

August 7, 2013 email from the President of Jefferson Consulting Group to the

appellant introducing a Humana employee for purposes of discussing “Humana’s

experience and ideas to provide a near term alternative solution to VHA’s need

for larger, community-based clinics with expanded capabilities,” and offering to





41

participate in the discussion as needed. (AF, Tab 12, p. 266). The record also

contains two business-related email exchanges between Lewis and the appellant,

with Mr. Lewis using his business address. In the first email exchange, dated

August 28, 2012, Lewis forwarded the appellant information pertaining to thecurrent contractor at a VISN 18 community-based outreach clinic and the

“challenges facing the clinic and its workload.” ( Id ., pp. 273-74). In the second

email exchange, dated August 21, 2013, Lewis and the appellant discussed

agency practices in meeting with potential vendors. ( Id . , pp. 277-78). Based on

the foregoing, I find it more likely than not that the appellant was aware of

Lewis’s position with Jefferson consulting, and that Jefferson Consulting was

involved in helping contractors to secure business with the agency. The

appellant, at least occasionally, had business-related discussions with Lewis, and

the appellant had personally worked with Jefferson Consulting in discussions

with potential contractors. I find it difficult to believe that she accepted over

$13,000 in gifts from Lewis over a two year period, as described above, without

knowing what he did for a living.

I also find that this acceptance of gifts from him created the appearance of

a conflict of interest. Although Jefferson Consulting does not appear to have

been doing business, or attempting to do business, directly with the agency, its

client companies were. In fact, it is Jefferson Consulting’s very business is to

assist its clients in securing favorable government contracts, particularly with the

Department of Veterans Affairs. (AF, Tab 12, pp. 279-80). Furthermore, I find,

based on documentary evidence pertaining to the appellant’s involvement in

contract negotiations and her approval of a contract request, that her official

duties as Director of the Phoenix VAHCS placed her at the opposite end of the

negotiating table from Jefferson Consulting Group and its clients. (AF, Tab 11

pp. 248-51, 260-62). I therefore find that the agency has proven that the

appellant’s interest in accepting the gifts from Lewis “reasonably create[s] an

appearance” of having an effect on her interests or duties in her role as Director





42

of the Phoenix VAHCS. See Lane v. Department of the Army, 19 M.S.P.R. 161,

162-63 (1984). Charge 2, Specification B is sustained.

The third charge against the appellant was “Failure to Report Gifts,” which

included two specifications. (AF, Tab 1, PAM, pp. 11-12). Once again, theagency used generalized charging language, so the specifications supporting the

charge determine what the agency must prove. LaChance, 147 F.3d at 1371.

Specification A involved the failure to report calendar year 2012 gifts. It

states:

On or around March 22, 2013, you signed an Office ofGovernment Ethics Form 278, Executive Branch Personnel PublicFinancial Disclosure Report in which you reported your financial

assets for calendar year 2012. Annual reporting is your obligationas a member of the Senior Executive Service. Under Schedule B,Part II: Gifts, Reimbursements and Travel Expenses, you markedthe box “None” in response to the following:


You failed to report the following gifts which were given to you by Dennis “Max” Lewis, Vice President for Jefferson ConsultingGroup during calendar year 2012:

a. International airline tickets at a cost of approximately $465.07roundtrip from Phoenix, Arizona to Vancouver, British Columbiafor travel in or about May 2012; and

b. Airline tickets at a cost of approximately $355.60 roundtripfrom Phoenix, Arizona to Portland, Oregon from travel in orabout October 2012.

(AF, Tab 1, PAM, p. 11).

Thus, in order to prove Specification A, the agency must prove the

following elements: (1) that for calendar year 2012 the appellant signed Ethics

Form 278 on about March 22, 2013; (2) that the appellant marked “None” when

asked about 2012 transportation gifts in excess of $350 from a single source; and





43

(3) that in 2012 the appellant received from Lewis a May 2012 roundtrip airline

tickets from Phoenix to Vancouver, which cost approximately $465.07, as well as

October 2012 roundtrip airline tickets from Phoenix to Portland, which cost

approximately $355.60.First, the agency has proven that the appellant signed the required 2012

Ethics Form 278 on about March 22, 2013. (AF, Tab 11, p. 264). As with part of

Charge 2, the primary supporting evidence is provided by the sworn declaration

of Cady, the Resident Agent in Charge of a division of the OIG. (AF, Tab 71, p.

42).12

Cady obtained the appellant’s Form 278 from the agency’s Office of

General Counsel (AF, Tab 71, Cady Decl., pp. 46-47). Second, Cady’s

investigation confirmed that the appellant did, indeed, check “none” when asked

about 2012 transportation gifts in excess of $350 from a single source. (AF, Tab

11, page 266). Third, as explained in more detail below, and despite some

evidentiary issues, the agency has proven that Lewis gave the appellant the two

referenced 2012 roundtrip airline tickets.


Vancouver in May 2012, there are two pieces of evidence that seem probative.

The first is Lewis’s April 30, 2012 email in which he forwarded the United

Airlines e-ticket directly to the appellant. (AF, Tab 11, pp. 188-191). The second

is the OIG-subpoenaed United Airlines record that confirms the e-ticket was

purchased with Lewis’s credit card. (AF, Tab 11, pp. 335, 337). Both pieces of

evidence are confirmed by Cady’s investigation. (AF, Tab 71, Cady Decl. pp. 43-

44). Accordingly, I find the agency has proven the first unreported 2012 gift in

Specification A.

12 Starting in April 2014, Cady’s investigation included a review of subpoenaed records

from Southwest Airlines, United Airlines, Kaiser Permanente, and Live Nation (TicketMaster). (IAF, Tab 71, pp. 42-43). His investigation also included a review ofnumerous emails obtained from the agency’s email system. ( Id., p. 43).





44


Portland in October 2012, there is an evidentiary issue, but the agency has

nevertheless managed to overcome it. The evidentiary issue involves Cady’s

assertion that he reviewed an email from Lewis to the appellant indicating that onSeptember 15, 2012, the appellant was issued a United Airlines roundtrip e-ticket

between Phoenix and Portland for travel in October 2012. ((AF, Tab 71, Cady

Decl., pp. 44). Although he makes that assertion, Cady failed to provide any

record citation for that email. Moreover, in culling the record, I could find no

such email. Nevertheless, in paragraph 17 of Cady’s declaration, (AF, Tab 71, p.

44) he also relies on an OIG-subpoenaed record from United Airlines, which

indicates that on September 14, 2012, Lewis paid for two tickets, each worth

$355.60, that were issued to the appellant and Lewis. (AF, Tab 11, pp. 340-41).

Accordingly, I find the agency has also proven the second unreported 2012 Lewis

gift in Specification A. This specification is sustained.

Turning to Specification B, which involved the appellant’s failure to report

calendar year 2013 gifts, the agency alleged the following:

On or around March 22, 2014, you signed an Office of

Government Ethics Form 278, Executive Branch Personnel PublicFinancial Disclosure Report. Under Schedule B, Part II: Gifts,Reimbursements and Travel Expenses, you marked the box“None” in response to the following:


You failed to report receiving in-kind payment or reimbursementfor travel expenses totaling over $770.00, including a hotel roomfor one night, airfare, meals, a rental car and airport parking,resulting from a job interview with Kaiser Permanente in October2013.





45

You failed to report the following gifts purchased by Dennis“Max” Lewis, Vice President, Jefferson Consulting Group duringcalendar year 2013:

a. Airline tickets at a cost of approximately $317.60 roundtripfrom Phoenix, Arizona to El Paso, Texas for travel in or aboutMarch 2013;

b. Airline tickets at a cost of approximately $1,015.60 roundtripfrom Phoenix, Arizona to Eureka, California for travel in or aboutMay 2013;

c. Airline tickets at a cost of approximately $389.80 roundtripfrom Phoenix, Arizona to Portland, Oregon for travel in or aboutJune 2013;

d. Five tickets and parking for approximately $729.50 paid on orabout August 24, 2013 to The Mrs. Carter Show World TourStarring Beyoncé on or about December 7, 2013;and

e. Entry fee of approximately $282.98 paid on or about December11, 2013, for the 2014 P.F. Chang’s Rock ‘n’ Roll ArizonaMarathon & Half Marathon on or about December 2, 2013.

(AF, Tab 1, PAM, p. 12).

As before, the language of Specification B determines what the agency

must prove. LaChance, 147 F.3d at 1371. Thus, the agency must prove: (1) that

for calendar year 2013 the appellant signed Ethics Form 278 on about March 22,2014; (2) that the appellant marked “None” when asked about the receipt of 2013

gifts of transportation, lodging or food, as well as the receipt of 2013 travel-

related cash reimbursements; and (3) that in 2013 the appellant received from a

single source one or more of the listed items in excess of $350.

First, the agency has proven that the appellant signed the required 2013

Ethics Form 278 on about March 21, 2014. (AF, Tab 11, p. 270). As with the

prior year’s form, Cady obtained the Form 278 from the agency’s General

Counsel. (AF, Tab 71, Cady Decl., pp. 46-47). Second, Cady’s investigation

confirmed that the appellant did, indeed, check “None” when asked about 2013

gifts in excess of $350 from a single source. (AF, Tab 11, page 272). Third, as

explained in more detail below, and again despite some evidentiary issues, the





46

agency has proven that the appellant received more than $350 from Kaiser

Permanente, and more than $350 from Lewis, based on most, but not all, of the

items set out in the specification.

The agency alleged that the appellant failed to report the reimbursement oftravel expenses regarding her October 2013 Kaiser Permanente job interview,

which totaled more than $770 for airfare, hotel, meals, rental car, and airport

parking. (AF, Tab 1, page 12). In support of that allegation, Cady’s Declaration

confirms the review of OIG-subpoenaed documents from Kaiser Permanente,

(AF, Tab 71, Cady Decl., p. 45), which indicate that on October 7, 2013, the

appellant did indeed interview for the position of Chief Operating Officer at the

Santa Clara Medical Center. (AF, Tab 11, p. 295). However, with respect to the

expenses for that trip, Cady makes the following assertion in his declaration: “I

reviewed OIG-subpoenaed documents from Kaiser Permanente (KP). They

indicate that Ms. Helman’s reimbursements for the interview described in

paragraph 29 above were paid as follows by Kaiser Permanente: $33.78 (meals),

$60.57 for one day’s car rental, $22.00 for airport parking, $141.34 for one

night’s hotel stay, and round trip air fare of $259.80. This resulted in a total of

$517.49.” (AF, Tab 71, Cady Decl. p. 45) (citing AF, Tab 11, pp. 278, 281-83,

286-88, 290-91, 293). In looking at the underlying evidence, it is somewhat more

nuanced: Kaiser Permanente only reimbursed the appellant with a check for

$116.35 to cover meals, rental car, and airport parking, while the remaining

expenses for hotel ($141.34) and air travel ($259.80) were paid directly by Kaiser

Permanente to third-party vendors, and not to the appellant. (AF, Tab 11, p. 276).

The distinction makes somewhat of a difference because Form 278 only requires

the reporting of “travel-related cash reimbursements received from one source

totaling more than $350.” (AF, Tab 11, pp. 266, 272) (emphasis added). In this

case, the appellant only received a “travel-related cash reimbursement” of

$116.35, which is below the reporting threshold. Nevertheless, for the remainder

of the Kaiser Permanente interview trip, the appellant received more than $350 in





47

value, which triggers the Form 278 requirement to report “gifts (such as tangible

items, transportation, lodging food, or entertainment) received from one source

totaling more than $350.” ( Id .). Accordingly, I find that the agency has

established a 2013 unreported reimbursement received from Kaiser Permanente.With respect to the five unreported 2013 gifts from Lewis, each is

addressed in turn. The first unreported 2013 Lewis gift involves roundtrip airline

tickets from Phoenix to El Paso for travel in March 2013 at a cost of

approximately $317.60. (AF, Tab 1, page 12). At the outset, it should be noted

that this item, standing alone, does not meet the $350 minimum reporting

requirement. (AF, Tab 11, pp. 266, 272). As Form 278 provides, the appellant

was only required to report gifts or travel-related cash reimbursements “received

from one source totaling more than $350.” ( Id.). Nevertheless, to the extent it

may be combined with other unreported 2013 gifts from Lewis, the record

evidence supports the charge. Cady’s Declaration confirms that he reviewed a

March 11, 2013 email from Lewis to the appellant confirming the Phoenix to El

Paso e-ticket at a cost of $317.60. (AF, Tab 71, Cady Decl., p. 44). Although

Cady again does not provide a record citation, this time, the email is included in

the record. (AF, Tab 11, pp. 204-208). The gift is also confirmed by Cady’s

Declaration regarding his review of the OIG-subpoenaed documents from

Southwest Airlines, (AF, Tab 71, Cady Decl. p. 44), which references those

records. (AF, Tab 11, pp. 309-325).

The second unreported 2013 Lewis gift was a roundtrip airline ticket from

Phoenix to Eureka, California for travel in May 2013 at a cost of $1015.60. (AF,

Tab 1, PAM. p. 12). The agency has not proven this alleged gift by preponderant

evidence. Cady’s declaration confirms his review of Lewis’s April 4, 2013 email

to the appellant forwarding the United Airlines Eureka roundtrip e-ticket to the

appellant, which states “[f]or your upcoming Avenue of the Giants Marathon.”

(AF, Tab 11, pp. 211-13). However, the problem with this allegation is also

found in Cady’s declaration, which concedes that, based on OIG-subpoenaed





48

United Airlines documents, the airfare was $1015.60, but only $507.80 was paid

(AF, Tab 71, page 44). Although that fact strongly suggests there was travel by

either the appellant or Lewis, but not both, Cady does not further explain the

discrepancy. Moreover, the very OIG-subpoenaed documents relied upon byCady tend to show the passenger was Lewis, not the appellant. (AF, Tab 11, pp.

343-44). Paragraph 21 of Cady’s declaration cites Tab 11, pages 343-44, which

is a difficult to decipher computer printout, but almost all the references are to

Lewis, not the appellant. Moreover, the very next two pages, which Cady does

not mention, seem to confirm Lewis as the passenger in the itinerary, and include

a copy of his boarding pass. (AF, Tab 11, pp. 345-46). There are no comparable

documents, a boarding pass or something similar, for the appellant. Accordingly,

I find that the agency has failed to prove this gift to the appellant.

The third unreported 2013 Lewis gift was a roundtrip airline ticket from

Phoenix to Portland, Oregon for travel in June 2013 at a cost of approximately

$389.80. (AF, Tab 1, PAM, p. 12). Paragraph 24 of Cady’s declaration

references his review of a June 26, 2013 email Lewis sent to the appellant

forwarding the e-ticket for this trip (AF, Tab 71, Cady Decl. p. 44). That email is

in the record. (AF, Tab 11, pp. 216-219). Moreover, Cady relies on the OIG-

subpoenaed record from United Airlines, which further confirms the appellant’s

flight at Lewis’s expense. (AF, Tab 11, page 348, column 3). Both the Lewis

email and the OIG-subpoenaed United Airline record confirm that the roundtrip

ticket was purchased in June for travel in July. (AF, Tab 11, pp. 216-219, 348). I

conclude that the agency has proven this gift allegation.

The fourth unreported 2013 Lewis gift was a set of tickets and parking fees

for the Mrs. Carter Show World Tour Starring Beyoncé on about December 7,

2013 at a cost of $729.50. (AF, Tab 1, PAM, p. 12). Cady again confirms his

review of a December 13, 2013 email from the appellant to her staff regarding her

attendance at the Beyoncé concert. (AF, Tab 71, Cady Decl., p. 45). That email

is found in the record. (AF, Tab 11, p. 235). In Paragraph 27 of his declaration,





49

Cady also asserts the uncovering of an August 28, 2013 email from Lewis to the

appellant forwarding the Ticketmaster confirmation and including the message,

“Enjoy!” (AF, Tab 71, Cady Decl. p. 45). He again, however, fails to provide a

record citation to that email, and a search has not revealed it. Nevertheless, in paragraph 28 of the declaration, Cady attests to his review of OIG-subpoenaed

documents from Live Nation/Ticketmaster, which confirmed that Lewis paid for

the tickets. (AF, Tab 71, Cady Decl. p. 45). Those documents are actually in the

record. (AF, Tab 11, pp. 300-302). Accordingly, I find it more likely than not

Lewis gave the appellant this gift.

The last of the five unreported 2013 Lewis gifts involved a December 2013

entry fee for the 2014 P.F. Chang’s Rock ‘n’ Roll Arizona Marathon & Half

Marathon at a cost of $282.98. (AF, Tab 1, PAM, pp. 12). Again, standing

alone, this allegation would be insufficient due to the $350 reporting requirement

(AF, Tab 11, pp. 266, 272). Nevertheless, in combining it with other 2013

unreported gifts, Cady’s Declaration confirms his review of Lewis’s December

11, 2013 email to the appellant, which forwards the race registration confirmation

to the appellant and which was paid by an individual with Lewis’s billing address

and the last four digits of Lewis’s VISA credit card number. (AF, Tab 71, Cady

Decl., p. 45). That email is also in the record. (AF, Tab 11, pages 230-32). I find

that the agency has proven this last gift, as well.

In sum, with respect to the Charge 3, I find the agency has proven the

following. For Specification A, I find that the agency has proven both of its

allegations regarding unreported 2012 Lewis gifts: (1) the $465.07 roundtrip

airline ticket between Phoenix and Vancouver; and (2) the $355.60 roundtrip

airline ticket between Phoenix and Portland, Oregon. For Specification B,

regarding the unreported 2013 Kaiser Permanente monies, I find the agency has

proven the allegation, but only with respect to the hotel and airfare. As for the

five unreported 2013 Lewis gifts, I find the agency has proven the payment for

the $317.60 roundtrip airfare between Phoenix and El Paso, the $389.80 roundtrip





50

airfare between Phoenix and Portland, Oregon, the Beyoncé world tour tickets

and parking and the P.F. Chang’s Rock ‘n’ Roll Arizona Marathon. The agency

did not adduce preponderant evidence regarding the $1015.60 roundtrip airline

ticket between Phoenix and Eureka because the underlying paperwork suggeststhat the trip was taken by Lewis, not the appellant.

In response to these charges, the appellant asserts three arguments, none of

which carries the day. First, the appellant argues that she is unable to respond to

the merits of the allegations based on due process considerations. (AF, Tab 70,

Appellant’s Merits Brief, pp. 53-54). As ruled previously, although no adverse

inference has been drawn against the appellant, the agency has proven the charge

without any inference. The appellant also argues that the agency has not brought

a charge of “failure to report gifts” against any senior executive in the past five

years, or possibly ever (AF, Tab 70, page 54). Again, this speaks to penalty not

the legality of the charge.

Finally, the appellant argues that the agency “neither alleges nor cites to

any evidence that Ms. Helman used the purported gifts at issue or that she did not

repay the purported giftor for those gifts.” (AF, Tab 72, Appellant’s Merits Brief,

p. 18). I reject that argument. First, it is irrelevant whether the appellant used or

repaid the gifts because Form 278 requires disclosure of gifts that were

“received” by the appellant, regardless of whether they were used or repaid. (AF,

Tab 11, pp. 266, 272). See LaChance, 147 F.3d at 1371 (the agency need only

prove what it has charged in the specification). Moreover, the record supports the

conclusion that the gifts were accepted and utilized. For example, when Mr.

Lewis emailed the appellant travel confirmation for her flight to Eureka, he wrote

“For your upcoming Avenue of the Giants Marathon. Good Luck!” (AF, Tab 11,

p. 211). The Kaiser Permanente records are clear about the payments made to

and on behalf of the appellant, with no suggestion of repayment. (AF, Tab 11,

pp. 227, 276-298). Likewise, when Lewis emailed the appellant to confirm her

trip to the Rock ‘n’ Roll Arizona Marathon, the appellant responded by email





51

“Whoooo hoooo!” (AF, Tab 11, page 230), and Lewis replied: “Hope you feel

that way after you run the marathon …. :) I think you’re in Sedona two day[s]

later …. :)” (AF, Tab 11, p. 230). Similarly, as detailed above, the OIG-

subpoenaed airline records confirm that the appellant took the flights. I find theagency has adduced preponderant evidence in support of this specification, and it

is sustained.

The appellant has not established her affirmative defenses.

The appellant has argued from the start that the agency violated her pre-

removal due process rights by failing to give her meaningful notice and

opportunity to respond to the action pending against her, and also that the post-

removal proceedings here violate her due process rights because of their

abbreviated nature. (AF, Tab 1, Appeal Form, p. 6, Tab 70, Appellant’s Merits

Brief, pp. 19-35; Tab 72, Appellant’s Response Brief, pp. 5-8). As I explained in

my December 8, 2014 ruling, violation of due process is a viable affirmative

defense in proceedings under 38 U.S.C. § 713. (AF, Tab 25). The appellant

bears the burden of proving this affirmative defense by preponderant evidence. 5

C.F.R. § 1210.18(b)(3).

The essential requirements of due process are prior notice and an

opportunity to respond. Cleveland Board of Education v. Loudermill, 470 U.S.

532, 546 (1985). As the Supreme Court has explained, dismissals for cause will

often involve factual disputes, and consideration of the employee’s response may

help clarify such disputes before any deleterious action is taken. In addition,

even if the facts are clear, the appropriateness or necessity of the discharge may

not be; in such cases, the only meaningful opportunity to invoke the discretion of

the decision maker is before the termination takes effect. See id . at 543. In order

for this opportunity to respond to be meaningful, the deciding official must

actually consider an employee’s timely response to a proposed action. See

Hodges v. U.S. Postal Service, 118 M.S.P.R. 591, 594 (2012) (“the deciding





52

official’s complete failure to consider the appellant’s written response to the

proposal notice before issuing a decision constitutes—in and of itself—a

violation of minimum due process of law”).

In this case, the appellant alleges that the deciding official had alreadydecided to remove her before she responded to the notice of pending action, thus

failing to give her response meaningful consideration, and thereby violating her

pre-removal due process rights. (AF, Tab 1 at 6; Tab 70, Appellant’s Merits

Brief, pp. 24-32). Specifically, she argues that the agency was under intense

political pressure to remove her, and that the deciding official bowed to this

pressure without regard to the appellant’s side of the story. ( Id ., pp. 25-30). In

support of her argument, the appellant cites to numerous public comments and

other documents by and from individuals expressing their desire that she be

removed, some of which were quite harsh. ( Id ., pp. 25-27). Most specifically to

her, she cites a letter from Arizona Senators John McCain and Jeff Flake to

Secretary McDonald stating that “[t]he clearest example of your failure to change

the culture at the VA is the continued employment of Sharon Helman, the former

director of the Phoenix VA Health Care system,” (AF, Tab 48, pp. 7-8), a news

article quoting Representative Jeff Miller as stating that the agency “needs to

move much more quickly to purge other disgraced personnel from its payroll,”

including the appellant, (id ., p. 13), a press release from Representative Miller’s

office stating that the agency needs to get serious about purging “villains”, (id ., p.

32), a hearing before the House Committee on Veterans Affairs, in which

Representative Kirkpatrick stated that he and his constituents are “calling for the

[appellant’s] immediate firing. We want that to happen immediately.” (AF, Tab

49, p. 17). The appellant also cites public comments by Secretary McDonald,

stating that he intended to hold senior leadership at the Phoenix VAHCS

accountable through appropriate disciplinary action. (AF, Tab 45, pp. 16, 19-20;

Tab 70, Apppellant’s Merits Brief, p. 26). Finally, she cites a letter from

Secretary McDonald to Representative Miller, explaining delays in the agency’s





53

taking action against the appellant and assuring him that the agency “will move

swiftly, within the bounds established by law, to bring these matters to closure.”

(AF, Tab 72, Appellant’s Response Brief, pp. 30-32). More probably than not,

the agency was under political pressure, amplified through the media, to removeher from service, and Secretary McDonald responded to this pressure by assuring

Congress and the public that the agency was taking swift action to address the

situation.

Nevertheless, the agency submitted a declaration from Deputy Secretary

Gibson, the actual deciding official in this case, explaining that he took his job as

deciding official seriously, that he did not discuss the matter with any agency

employee apart from counsel and human resources staff, that no agency official

pressured him to reach a particular result, and that despite congressional and

media attention, he personally felt no pressure to take a particular action against

the appellant, and in fact, he does not allow the media or Congress to pressure or

influence him in the performance of his official duties as Deputy Secretary. (AF,

Tab 71, Agency’s Merits Brief, Gibson Decl., pp. 57-59). He further explained

his decision-making process and the evidence that he took into account in

arriving at his decision, including the appellant’s response to the notice of

pending action. ( Id ., pp. 54-59).

Weighing the circumstantial evidence of political and media pressure

against the direct evidence of impartiality by the deciding official, I find that the

appellant has not proven she was deprived of a meaningful opportunity to respond

to the PAM before her removal. See Blake v. Department of Justice, 81 M.S.P.R.

394, 413-14 (1999). While not wholly discounting the scrutiny to which the

agency has been subjected recently, and with respect to the appellant in

particular, I find insufficient reason to disbelieve the deciding official’s sworn

claim of impartiality. Absent effective cross examination or some kind of

“smoking gun,” overcoming that declaration is a high hurdle. I further find that,

notwithstanding the demands from individual congressmen that the appellant be





54

removed from service, there is insufficient evidence to find that Deputy Secretary

Gibson ever promised any particular result in her disciplinary action. Rather,

Secretary McDonald assured Congress and the public that the process would

proceed as quickly as practicable and that the course of events would bedetermined by the law and the evidence. (AF, Tab 45, pp. 16, 19-20; Tab 72 pp.

30-32).

The appellant also argues that the agency deprived her of pre-removal due

process by giving her only 5 days to respond to the notice of pending action,

which she argues was insufficient under the circumstances. (AF, Tab 70,

Appellant’s Merits Brief, pp. 31-32). I agree with the appellant that 5 days was a

short amount of time to respond to this notice of pending action. Nevertheless, I

do not find the response period was so short as to constitute, on its face, a due

process violation, i.e., lack of a meaningful opportunity to respond to the charges.

See Lee v. Western Reserve Psychiatric Habilitation Center , 747 F.2d 1062,

1068-69 (6th Cir. 1982) (3 days’ notice was sufficient to satisfy due process in

the hospital’s termination action).

Furthermore, recognizing that due process is, to a large extent, situational,

I have considered the particular facts of this case, and find that the appellant has

not established that the 5-day response period that she was afforded violated her

due process rights.13 See Mathews v. Eldridge, 424 U.S. 319, 335 (1976). (“[D]ue

process is flexible and calls for such procedural protections as the particular

situation demands.”) (quoting Morrissey v. Brewer , 408 U.S. 471, 481 (1972)).

Specifically, I find that the appellant was aware for over 5 months, since the May

30, 2014 notice of proposed removal, that the agency was pursuing disciplinary

action against her, and of the general bases for at least some of the misconduct

alleged in the November 10, 2014 notice of pending action. (AF, Tab 1, p. 9, Tab

13 The agency asserts the appellant actually had eight days to respond. I use the shorter

period to evaluate the appellant’s claim.





55

18, p. 29). Thus, this is not a case where an employee was caught off guard. I

further find that the appellant did not request an extension of time to respond to

the proposal. She argues that “the VA’s procedures do not allow any discretion

in the time frame for [her] response,” (Tab 70, Appellant’s Merits Brief, p. 31), but this characterization is not quite accurate. The agency’s written procedures

provide that “the Senior Executive will have 5 business days after receiving both

the Pending Action Memorandum and the evidence file to respond in writing to

the Pending Action Memorandum.” (AF, Tab 12, p. 248). The procedures do not

expressly provide for an extension of this time period, but neither do they forbid

it. ( Id ., pp. 242-49). Indeed, Deputy Secretary Gibson stated in his sworn

declaration that he offered the appellant an extension of time to respond to a

discrete issue for which he obtained additional information after the appellant had

submitted her response, but the appellant declined the offer. The appellant has

not offered evidence to rebut that point. Under these circumstances, I cannot find

that the 5-day response period deprived the appellant of due process.

Regarding post-removal due process, the appellant argues that the

abbreviated 21-day statutory adjudication period is unreasonable and calculated

to deprive her of due process, and that the Board’s implementing regulations

deprive her of the opportunity to conduct meaningful discovery and develop the

record. (AF, Tab 70, Appellant’s Merits Brief, pp. 32-35). See 38 U.S.C. §

713(e)(1), (3), 5 C.F.R. § 1210.12. As an initial matter, the Board’s discovery

regulations are calculated, in part, to assist administrative judges, and the parties,

in complying with the statutory 21-day adjudication period. Discovery is

truncated because the entire process is truncated. Furthermore, the Board’s

discovery regulations are alterable at the presiding judge’s discretion, something

not sought here. The problems the appellant cites are all children born of the

statute. Therefore, it seems the appellant’s due process challenges to these post-

removal proceedings are all tantamount at a due process challenge to the statute

itself. I lack the power to rule on the constitutionality of the enabling statute





56

which provides the authority to hear this case in the first place. See Special

Counsel v. Bianchi, 57 M.S.P.R. 627, 632 (1993).

The appellant also argues that the agency committed harmful error in the

application of its procedures when it removed her. Harmful error under 5 U.S.C.§ 7701(c)(2)(A) cannot be presumed; an agency error is harmful only where the

record shows that the procedural error was likely to have caused the agency to

reach a conclusion different from the one it would have reached in the absence or

cure of the error. See, e.g., Stephen v. Department of the Air Force, 47 M.S.P.R.

672, 681, 685 (1991). The appellant also bears the burden of proving this

affirmative defense by preponderant evidence. 5 C.F.R. § 1210.18(c).

In this case, the appellant argues that the agency violated its written

procedure requiring that”[t]he Secretary or his designee will give full and

impartial consideration to the Senior Executive’s reply, if any, and all evidence of

record.” (AF, Tab 12, p. 248; Tab 70, Appellant’s Merits Brief, pp. 57-58). The

appellant argues that a poorly constructed charging document, the defeat of

several specifications by their own language or by the Agency’s own evidence,

and the agency’s challenge to the appellant’s response to Charge 1 as “irrelevant”

to these proceedings indicate that the deciding official was not fair and impartial

as required. (AF, Tab 70, Appellant’s Merits Brief, pp. 57-58). Although I agree

with the appellant that the agency’s case suffers from some infirmities, I do not

think that these, or the agency attorneys’ litigation strategies during this appeal,

are particularly probative of the deciding official’s state of mind. Once again, as

found above, I find insufficient reason to doubt Deputy Secretary Gibson’s

impartiality as expressed in his declaration. The appellant also points to

irregularities in the agency’s action to take back bonus money she was paid, such

as not turning over documents to her that possibly should have been. She does

not, however, tie those actions to the deciding official here. Because the

appellant has not shown that the agency committed any procedural error, I find

that she has not proven her claim of harmful procedural error.





57

The appellant has not rebutted the presumption of the reasonableness of the

penalty.

The appellant first makes a legal argument about penalty mitigation, i.e.,

the practice of reducing an agency’s chosen penalty to some lesser form of punishment. First she contends the Board was not authorized to actually

promulgate regulations. She also contends that the all-or-nothing rebuttable

presumption approach to penalty review established by 5 C.F.R. § 1210.18 is

unwarranted and that penalty mitigation is still permissible. She notes that

penalty mitigation has been a long standing fixture of civil service law and that in

passing 38 U.S.C. § 713 Congress did not expressly rule it out, but could have, as

it did with particular regulatory and statutory sections. She further points out that

Congress did expressly make appeals under Section 713 subject to the provisions

of 5 U.S.C. § 7701, and 5 U.S.C. § 7701(b)(3) provides the authority to mitigate.

(AF, Tab 70, Appellant’s Merits Brief, pp. 57-59). The appellant may or may not

have a fair argument. However, it will not be addressed. The time to raise a

challenge to the procedures used to decide this appeal was before the motion

deadline.

For its part, the agency argues that the Board’s seminal penalty

consideration decision, Douglas v. Veterans Administration , 5 M.S.P.R. 280

(1981), is not applicable to this appeal under 38 U.S.C. § 713. However, it also

concedes that some of the factors set out in Douglas were factors the Deputy

Secretary himself considered in arriving at his decision. (AF, Tab 71, Agency’s

Merits Brief, pp. 29-31). As the parties were previously notified, whether the

appellant can rebut the presumption of the appropriateness of the penalty imposed

in this case, removal, will be determined by the totality of the circumstances.

Simply because certain types of circumstances were discussed in Douglas does

not render them inapplicable. Therefore, the Douglas factors will be considered

along with, as ruled earlier, any other factor the parties feel is germane, even

though it is not set out in Douglas.





58

The arguments above aside, the appellant points to several factors in her

attempt to rebut the reasonableness of her removal. At the outset, it must be

noted the appellant is attempting to rebut a presumption. For the proven

misconduct, the penalty of removal is reasonable unless and until the appellantadduces sufficient evidence to prove otherwise. See 2 McCormick On Evidence

§§ 342, 344 (7th ed.).

The appellant correctly anticipated that Charge 1 would not be sustained,

and she contends those charges were the most serious against her as they were the

ones the Deputy Secretary noted in the PAM as making her not suitable for the

civil service. She wrongly anticipated, however, that Charge 2, Specification A

would not be sustained. However, as noted above, the charge that a manager

either took or allowed an action which “could be perceived as retaliation” is not

particularly serious because any time a manager takes some personnel action

against an employee who has engaged in some kind of protected activity, a

perception of retaliation could arise, subject to the legal contours of a retaliation

claim for the particular type of protected activity, even if there is no deliberate ill

intent or carelessness on the manager’s part. Thus, while that specification was

sustained, it is not particularly serious misconduct. She contends that in looking

at Charge 2, Specification B, and all of Charge 3, it is not serious misconduct and

removal is unreasonable, citing a case holding inadvertent offenses lessen the

seriousness of the misconduct. I must disagree.

In the context of the appellant’s position, as an SES Director of a sizable

health care system with a large budget, one must be scrupulous to avoid even the

appearance of a conflict of interest and to correctly report the things of monetary

value one receives from others. See Coons v. Department of Navy, 15 M.S.P.R.

1, 5 (1983) (“Creating the appearance of a conflict of interest constitutes a

serious breach of trust. The Government clearly has an interest in prohibiting

such conduct, and in ensuring that its agents and employees are not compromised

in the performance of their duties as a result of any outside influences”). The





59

higher ranking one is, the more important those things become. See Walcott v.

U.S. Postal Service, 52 M.S.P.R. 277, 284 (1992) (an agency can hold a high-

ranking employee to a higher standard of conduct for purposes of penalty), aff'd ,

980 F.2d 744 (Fed. Cir. 1992). Moreover, I conclude that the appellant’smisconduct in Charge 2, Specification B and in Charge 3, was not inadvertent.

Sincerely forgetting about one of the plane rides purchased for her might be

understandable in some circumstances but, the notion she actually forgot them all

strains credulity. Moreover, accepting gifts such as tickets to a popular

performer’s concert from a person who represents companies seeking to do

business with the agency was, more probably than not, not an accident or mistake.

I conclude the appellant’s offenses are serious and more likely than not,

intentional. See Murry v. General Services Administration, 93 M.S.P.R. 554,

557-58 (2003); Wynne v. Department of Veterans Affairs, 75 M.S.P.R. 127, 135-

36 (1997) (the nature and seriousness of the misconduct and its relation to the

employee’s duties, position, and responsibilities, including whether the offense

was intentional are paramount considerations).

The appellant contends she a long a history of quality service with the

agency and, until this point, it was blemish free. See Alexander v. U.S. Postal

Service, 67 M.S.P.R. 183, 190 (1995) (long service with a good history weigh in

favor of the employee). Indeed, she avers she worked her way up from a low

ranking Program Assistant position to ultimately be chosen for a series of facility

director positions. She has not adduced evidence of that earlier work history,

however. On the other hand, the agency also adduced no evidence that the

misconduct at issue here was the last straw on top of a history of problematic

behavior, and no such evidence is apparent from the record. Ultimately, though,

it is the appellant’s burden to prove what she asserts to rebut the penalty and, she





60

has not established a long, positive work history by preponderant evidence. 14

Moreover, even if the appellant had adduced such evidence, it is outweighed by

the seriousness of her misconduct and its relation to her position. See id.

With considerations about notoriety of the appellant’s misconduct, I amaware of none, insofar as the sustained misconduct is concerned. The press and

Congressional attention has been on the charges the agency failed to prove. This

weighs in favor of the appellant. Then there is the issue of notice. While I find it

more likely than not the appellant was not on notice that taking an action which

might be perceived as retaliatory could be misconduct on her part, I find she was

on notice that not accurately completing the Office of Government Ethics Form

278 was actionable misconduct, because the form advised next to the signature

box that by signing she was certifying that the statements she made on the form

were true, correct and accurate to the best of her knowledge. The form also states

in the following section that another official must certify that the appellant’s

answers avoid even the appearance of a conflict of interest. See Ware v.

Department of Veterans Affairs, 76 M.S.P.R. 427, 435-36 (1997) (“the fact that

the appellant was clearly on notice of the procedures to be followed to avoid the

misconduct support the removal penalty”).

I conclude the appellant has little rehabilitative potential. She has

steadfastly denied any wrongdoing in the course of this appeal and attempted to

deflect attention from her own actions by pointing to political considerations and

complaining the agency has been looking in to her private life. While it is likely

that the political spectacle which followed the revelations about how the agency

was conducting its business is what led the agency to apply scrutiny to her, taking

a close look was not unwarranted under the circumstances. Moreover, even if it

was somehow inappropriate for the agency to scrutinize the appellant in the

14 The appellant points to her “Ex. 1 ¶¶ 2, 4, 8.” The Exhibit 1 to the brief is a

declaration from the appellant, but it does not discuss her work history.





61

manner it did, when the agency did look, it found serious financial improprieties

on her part. They are not to be simply ignored. Her failure to take responsibility

for any of the sustained misconduct does not support a finding of rehabilitative

potential. See Dolezal v. Department of Army, 58 M.S.P.R. 64, 71 (1993) (inholding an appellant had “little, if any,” rehabilitative potential, the Board noted

“the appellant still does not understand the serious nature of his misconduct. He

still contends that his [misconduct] was none of the agency's business” and that

“He does not appear to understand that he is held to a higher standard of conduct

because of his SES status”).

In sum, considering all the factors cited by the parties, including the

discretion the agency argues it should have under 38 U.S.C. § 713, I conclude the

ones outlined above are most relevant. The appellant has not established that the

penalty of removal is unreasonable under the circumstances of this case. It must,

therefore, be upheld.

DECISION

The agency’s action is AFFIRMED.

_/S/__________________________Stephen C. MishChief Administrative Judge

NOTICE TO APPELLANT

Pursuant to 38 U.S.C. § 713(e)(2), this decision is final and not subject to

any further appeal.





TRANSCRIPT

December 14, 2015

COMMITTEE HEARING

SEN. JOHNNY ISAKSON

CHAIRMAN

SENATE COMMITTEE ON VETERANS' AFFAIRS

GILBERT, ARIZONA

SEN. JOHNNY ISAKSON HOLDS A FIELD HEARING ON KEEPING THE PROMISE FOR ARIZONA VETERANS:

THE V.A. CHOICE CARD, MANAGEMENT ACCOUNTABILITY

AND PHOENIX V.A. MEDICAL CENTER

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SENATE COMMITTEE ON VETERANS' AFFAIRS HOLDS A FIELD

HEARING ON KEEPING THE PROMISE FOR ARIZONA VETERANS:

THE V.A. CHOICE CARD, MANAGEMENT ACCOUNTABILITY AND


mailto:[email protected]


http://www.cqrollcall.com/






PHOENIX V.A. MEDICAL CENTER, GILBERT, ARIZONA

DECEMBER 14, 2015

SPEAKERS:

SEN. JOHNNY ISAKSON, R-GA.

CHAIRMAN

SEN. JERRY MORAN, R-KAN.

SEN. JOHN BOOZMAN, R-ARK.

SEN. DEAN HELLER, R-NEV.

SEN. BILL CASSIDY, R-LA.

SEN. MIKE ROUNDS, R-S.D.

SEN. DAN SULLIVAN, R-ALASKA

SEN. THOM TILLIS, R-N.C.

SEN. RICHARD BLUMENTHAL, D-CONN.

RANKING MEMBER

SEN. PATTY MURRAY, D-WASH.

SEN. SHERROD BROWN, D-OHIO

SEN. JON TESTER, D-MONT.

SEN. MAZIE K. HIRONO, D-HAWAII

SEN. JOE MANCHIN III, D-W.VA.

SEN. BERNARD SANDERS, I-VT.

WITNESSES:

SEN. JOHN MCCAIN, R-ARIZ.

SEN. JEFF FLAKE, R-ARIZ.

CHUCK BYERS,

VIETNAM VETERAN

2




NICOLE MORRIS,

NAVY VETERAN

KATHERINE MITCHELL,

FORMER EMPLOYEE,

PHOENIX V.A. HEALTH CARE SYSTEM

DAVID J. SHULKIN,

UNDERSECRETARY FOR HEALTH,

DEPARTMENT OF VETERANS AFFAIRS

THOMAS LYNCH,

ASSISTANT DEPUTY UNDERSECRETARY

FOR CLINICAL OPERATIONS,


KATHLEEN FOGARTY,

INTERIM DIRECTOR VISN 18:

SOUTHWEST HEALTHCARE NETWORK,


DAVID MCINTYRE,

PRESIDENT AND CHIEF EXECUTIVE OFFICER,

TRIWEST HEALTHCARE

SULLIVAN: We'll get started here in a minute.

The Senate Veterans' Affairs Committee oversight hearing will now come to order. I'd like the first panel

of witnesses to take their seats.

Good morning, everybody. My name is Dan Sullivan, I'm the U.S. senator from Alaska, a member of the

Senate Veterans' Affairs Committee and a veteran myself with 22 years of active duty and reserve

service as a Marine Corps infantry officer.

3




Today's hearing is a continuation of oversight hearings we've been conducting and how the V.A. has

been implementing a series of laws passed in 2014. I'm very pleased to be joined by my distinguished

Senate colleagues, Senator John McCain, Senator Jeff Flake.

Alaska and Arizona are big states, proud states. While our winter temperatures might differ some, we

have many things in common, in particular, a large population of veterans.

As many of you know, Arizona has over 530,000 veterans making up over eight percent of this state's

population and I'm sure my colleagues from Arizona would agree that it's our strong population of

proud veterans that truly makes the states of Arizona and the states of Alaska, resource rich.

This morning, we are here to continue the important work of assuring that each and every veteran in

Arizona, in Alaska, and throughout the country gets the care they have earned and the care they

deserve.

Less than two years ago here in Arizona at the Phoenix V.A., our country found that our veterans here

and across the nation were not getting the care that they deserve and the care that they need and thecare that they've earned. From hidden wait lists and poor reporting, the V.A. was simply not doing its

job and veterans are falling through the cracks.

Rightfully, the country was outraged, our veterans were outraged and their elected officials in Congress

acted. In a few months, after these issues came to light, the Congress came together and passed a

Veterans Access Choice and Accountability Act of 2014, better known as the Choice Act. This bill was

passed by a very bipartisan majority in the House and Senate. And within a week of its passage, the

Choice Act was signed into law.

One of the many reasons I'm honored to be on this dais with Senators McCain and Flake today is that

they were two of the leaders in the U.S. Senate to make this happen. Senator McCain, in particular, has

been advocating for the Choice Card and Choice issues for years.

However, since this bipartisan effort to pass the Choice Act, the implementation of the law has been

rocky at best. Our veterans are still not seeing the quality of care of access to it that they deserve.

They're still waiting too long for appointments.

Twice, Congress has to had to correct issues with implementation since the passage of the Choice Act.

Once, improperly calculated distance requirements by the V.A. had to be changed in law. And again,

when the V.A. ran out of money to implement the Choice Act.

Thus far, we have seen that while choice is working in some areas, it is failing in other places like my

state of Alaska and is having serious implementation problems here in Arizona. I understand that the

implementation of such a large program like the veterans' Choice Act is difficult. However, the fact that

something is difficult cannot and should not be used for justification for delay or failure.

4




Regardless of how challenging the task may be, our veterans always deserve the maximum effort and

the best results from the V.A. and from Congress. When the call went out for our veterans to serve, they

put their country first and answered the call.

We're here in Arizona today because as a nation, it is our turn to answer the call and put them first.

Today's oversight hearing marks the sixth one that the Senate Veterans Affairs Committee has held onthe veterans Choice program. The sixth one just this year. Three in D.C. and field hearings in Alaska,

Georgia and now Arizona.

The Committee felt it was particularly important to have such a hearing here given that many of the

problems were originally recognized here. And as I mentioned, the leadership from Senators McCain and

Flake in playing such an important role and devising the comprehensive solution to our V.A. problems

throughout the country.

I'd also like to mention under the strong leadership of the Veterans Affairs Committee, Chairman Johnny

Isakson of Georgia has sought to remind the senior leadership of the V.A. who they really serve, not

Congress, not the President, but our veterans.

So, we have an outstanding group of witnesses today and as you see, with regard to the first panel, we

have a former V.A. employee and a whistleblower who took a lot of courageous actions. It will be very

interesting to hear from her.

We have two -- and that's Dr. Mitchell -- two Arizona veterans, Mr. Byers and Ms. Morris, who's stuck in

a little bit of traffic but she should be joining us soon and I would like to welcome all the veterans who

are here today in the audience.

It's important to recognize that although we won't be taking testimony from everybody, we will have

the opportunity to hear from all of you if you would like to submit written testimony, you can do so at

this address. It's [email protected] and we can provide that again. I know that some

of the veterans here wanted to make comments. You can submit written testimony that will be part of

this official Senate hearing and we will certainly be reading that.

So, without further delay, I'd now like to recognize the Chairman of the Armed Services Committee, a

veteran, a war hero, my good friend, Senator John McCain for his opening remarks.

MCCAIN: Well, I thank you. I appreciate, Senator Sullivan, from the great state of Alaska being here to

chair this field hearing of the Senate Veterans Affairs Committee today.

Senator Sullivan is a proud Marine and he has worked diligently and tirelessly over the past year to

improve our nation security and fight for those who have served in uniform, veterans of this country are

fortunate to have Senator Sullivan advocating on their behalf.

I want to take the chairman of the Veterans Affairs Committee, Senator Johnny Isakson from Georgia

who is unable to be with us today. He's doing a great job as Chairman of the Veterans Affairs Committee

5








and he is examining many things including how veterans are using, and in some cases, how the V.A. is

not helping the use of the V.A. Choice Card.

I'm grateful to the city of Gilbert for hosting us in this facility. Being here is very helpful to our having a

full discussion and I'd like to take this minute to recognize and thank the City of Gilbert for their support

of veterans through their various programs such as "Operation Welcome Home", in support of homelessveterans through the Homeless Veterans East Valley Partnership. And I'd like to congratulate the City of

Gilbert who was recognized this year as being in the Top 5 Best Cities in the United States for Veterans.

I'll never forget the town hall forum I hosted in Phoenix where I heard directly from the families of four

veterans who passed away in recent months. They came and stood before a crowded room to tell their

stories. With tears in their eyes, they described how their loved ones suffered because they were not

provided the care they needed and deserved.

They recalled countless unanswered phone calls and ignored messages, wait times and delays,

mountains of bureaucratic red tape, while their loved ones, those who selflessly served their country,

experienced painful, debilitating, and ultimately fatal conditions.

No one should be treated this way in a country as great as ours. But to ignore the pleas for help and care

from those who have sacrificed on behalf of the United States is unconscionable. And we should all -- all

of us be ashamed.

The scandal at Phoenix then led to revelations of similar problems at other V.A. medical centers around

the country where bureaucrats were gaming the system to get better bonuses by denying care to our

veterans. This tragedy created a crisis of confidence toward the V.A., the federal agency that was

established to care for them.

I'm happy to note that Congress responded quickly in a bipartisan manner to this crisis. In a matter of

weeks, the House and the Senate passed the, quote, "Veterans Access, Choice, and Accountability Act."

This bill provided an unprecedented $15 billion in immediate emergency appropriations that was added

on the Veteran Health Administration's regular annual budget of about $60 billion to hire more doctors

and nurses and to issue the V.A. Choice Card for those veterans who could not get into a V.A. for their

health care.

The bill also gave the V.A. direct hiring authority so that all of the cumbersome rules and regulations for

bringing on board new federal employees could be waived to fill the vacancies. We will be discussing

more about the budget and resources provided to the V.A. in the next panel.

Congress also provided the secretary of the V.A. with nearly unprecedented ability to terminate senior

executives who fail to care for our veterans. No other Cabinet official has this powerful tool to ensure

performance and results from his department's top officials.

I continue to be disappointed that Secretary McDonald has not used this authority to its fullest extent.

As I have said, it is past time for accountability, and leadership at the V.A.

6




I want to thank our witnesses today on the first panel. Dr. Mitchell, She's a former employee of the V.A.

Medical Center and a whistleblower. She'll have very interesting comments to make. Mr. Charles

"Chuck" Byers' a Vietnam veteran himself and an advocate for all veterans here in Phoenix. His ability to

receive care through the Choice Program is a success.

And finally, Ms. Nicole Morris who is still not here and I'm sure everyone in this room agrees we own asolemn debt to those in uniform who fought on our behalf in faraway places.

I just want to make a brief comment on the makeup of our second panel which will consist of V.A.

witnesses as there has been a last minute change.

Last Friday, my staff was informed that the V.A. determined that a senior manager at the Phoenix V.A.

who was originally due to testify today, retaliated against a V.A. whistleblower. In light of this recent

information, he will not be testifying this morning while we determine what has occurred with this case.

I, needless to say, all of us take issue with whistleblower retaliation at the V.A. very, very seriously and

we've been discussing the matter with Secretary McDonald and especially in light of concerns aboutsystemic problems in this regard that the Office of Special Counsel raised directly with the President a

few months ago.

After today's hearing, Senator Flake and I are sending a letter to Secretary McDonald to find out exactly

what occurred in this retaliation case we were just made aware of and how it was handled.

With that in mind, we have a number of issues that more broadly impact Arizona veterans to cover and

many of those veterans are here today to tell us about their experiences. So today, we'll be focusing on

the Choice Card's implementation and continuing problems with excessive wait times that our veterans

are undergoing.

"For the 9 million American veterans who enrolled in the V.A. today, and for the families who lost loved

ones awaiting care that never came and still grieving their losses, it's time we live up to the V.A.'s

mission today to care for him who shall have borne the battle and for his widow and his orphan.

I thank you -- I thank you again, Senator Sullivan, for being here and I'm very pleased to note we did not

have this hearing in Alaska. Thank you.

SULLIVAN: Thank you, Senator McCain. As I mentioned, it's truly an honor to be on the panel with both

Senator McCain and Senator Flake who in my discussions with him over the course of the last year, I

know is fully committed to taking care of our veterans and, again, the two senators from Arizona played

such a leadership role in addressing the issues that it's an honor to be here with both of them.

So, Senator Flake, your opening statement.

FLAKE: Thank you, Senator Sullivan. Thank you for chairing this hearing and thank you for coming all the

way and bringing Alaska winter weather anyway with you.

7




But I just want to say that from the beginning when the problems were long before that, Senator

McCain has been advocating for veterans and throughout this issue and Phoenix, V.A. was the epicenter

of this -- this latest problem that we had.

And Senator McCain from the beginning was pushing hard to make sure that veterans receive Choice

and that there's accountability. And so this hearing, this field hearing, is part of that. Glad to have hadthe Choice Act pass.

But as Senator McCain said, and Senator Sullivan said, there are issues with its implementation. We

want to make sure that that goes forward also in light of the October V.A. inspector general report

noting problems still. In the urology department, in particular, at the Phoenix V.A., talking about

substandard care there and delays that may have contributed to the deaths of veterans.

We remained concerned and want to make sure that those issues are fixed. It's beyond unacceptable if

we're still having those kinds of issues. Obviously, I want to make sure that, as I mentioned, the Choice

Act continues to be implemented and that those problems that we had early on are dealt with.

So, thank you Senators Sullivan for coming here and thank you Senator McCain for pushing this issue all

the time and I can tell you, being in the Senate, Senator McCain, is always pushing veterans issues and

making sure that the veterans here and across the country get the care that they deserve. So, thanks for

being here.

SULLIVAN: Thank you.

And now we'll begin with our first panel. I would ask the witnesses to please try to keep the -- their

opening statements to five minutes. Our goal is to have each panel for about an hour.

And so, Mr. Byers, the floor is yours, sir.

BYERS: Thank you Senator Sullivan, Senator McCain, and Senator Flake.

Thank you for inviting me today to speak about the V.A...

SULLIVAN: Is your mike on?

BYERS: Is that better?

SULLIVAN: Much better.

BYERS: Sorry.

Yes. Thank you for inviting me today to speak about the V.A. Choice Card Management Accountability

and the Phoenix V.A. Medical center. And what we say, keeping the promise to Arizona veterans.

In August of 2013, I moved to Arizona from New Jersey. I was enrolled in the Philadelphia V.A.

Healthcare System. I knew I had to transfer my eligibility to the Phoenix V.A. Hospital Care System. And

8




in September of that year, I applied to the Southeast Clinic in Mesa and was told that it would be at least

a year and a half before I could get a primary care doctor.

I was even told it might be sooner if I go down to Tucson V.A. I could not wait because I was receiving

medication from my V.A. in Philadelphia. But if the Dr's don't see you, they will not renew your

prescriptions. I went downtown to the Phoenix V.A. Hospital which is about 50 miles away from myhome and was told the same thing.

Then I spoke to an advocate and was able to get an appointment in about nine months. They told me

the reason for such a long wait time was due to a decrease in staffing and staff leaving for better paying

opportunities outside the V.A. System.

I was not satisfied and called the Office of Inspector General's office in Washington and filed a

complaint. In about two weeks, I received a call from the VISN that oversees the Phoenix V.A. System

and was given appointment for a Primary Physician at the Mesa Southeast Clinic. I know how to

advocate but there are a lot of veterans out here that do not. And some of them would just give up.

Now, I am officially enrolled in the Phoenix V.A. Healthcare system and I'm out there -- seeing my

primary care physician and receiving my medication. Before I left Philadelphia V.A., I was being seen for

a urological condition and should have a followup.

I requested an appointment for urology to my primary physician. I waited over a year for my request for

urology appointment and was contacted by TriWest to see an outside urologist.

I received excellent care with multiple visits from the outside group. At this time, the Phoenix V.A.

offered very little urological services and there were a lot of veterans that were referred out to this

group for their care. And after a followup visit, I was told that the urology practice has dropped their

contract with TriWest because of delayed payments for services provided. I understand that that issue

has been resolved.

The Phoenix V.A. Hospital now has taken back my urology appointments now and also in the future. I

feel the Phoenix V.A. Health Care System is improving and correcting some of the previous short falls.

But I am concerned that the level of care for veterans like myself will continue and not repeat some of

the problems that we've had in the past.

There are a lot of dedicated employees at the Phoenix V.A. System and they're starting to see more and

more veterans working in the Healthcare System. I think it's important to continue the Veterans' Choice

Card.

However, I feel that there's still barriers that prevent the veterans from using it. The language states, 40

miles rule to the closest V.A. facility that has a primary care physician.

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There are multiple COBOCS here in Arizona within those 40 miles. However, they cannot provide all the

services that are needed for the veterans and still have to travel great distances for care to the local V.A.

hospitals. Sometimes, this can be over 200 miles here in Arizona.

I understand no system is perfect and a lot of these programs are new but I think it's important that we

veterans keep the Choice Card for an added insurance policy for our earned and deserving health carefrom our government.

And Vietnam veterans, we say, never will one generation leave behind another generation. Thank you.

SULLIVAN: Thank you, Mr. Byers.

Dr. Mitchell?

MITCHELL: I'm deeply grateful for the opportunity to testify today. I'm a former V.A. nurse and current

V.A. physician with over 16 years experience working within the Phoenix V.A. A little over one year ago, I

transferred to the -- from the Phoenix V.A. to the V.A. network office in Gilbert, Arizona. However, I've

maintained my Phoenix V.A. contacts.

In April 2014, following in the steps of Dr. Sam Foote, I became a public whistleblower to report

dangerous E.R. nursing triage, E.R. staffing shortages, whistleblower retaliation and facility scheduling

violations, among other issues.

In my opinion, not much has changed with these issues since that time except that the scheduling rules

are now being followed and there are certainly more staff in the E.R.

Throughout the last 20 months, Phoenix V.A. employees have privately contacted me to describe

instances of poor patient care, delays in care, violations of policy, and retaliation for reporting problems.

I was also made aware of significant problems for patients scheduling appointments through the Choice

Program.

Although I continue to advocate for improvements within the Phoenix V.A. E.R., in my current position,

I've been told that I'm not allowed to address issues that are still there.

The continued presence of dangerous triage conditions in the Phoenix V.A. E.R. as well problems in the

mental health clinical triage, was substantiated in a V.A. Office of Medical Inspector report or OMI

report that was released internally to the National V.A. in March of this year and publicly released in

September by the Office of Special Counsel.

This office V.A. report called the Phoenix V.A. nursing triage, quote, "A significant risk to public health

and safety," end quote. Although there were serious flaws in the OMI investigation, it's still found many

problems including grossly inadequate nursing triage, nurses who failed to perform EKGs when ordered

and failed to act upon orders for serious patient complaints such as chest pain. The triage in the walk-in

mental health clinic was substandard and nursing triage protocols were called inadequate.

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After this OMI report's internal release to the V.A. in March, the Phoenix V.A. E.R. nurses were trained in

a triage tool called Emergency Severity Index or ESI. Unfortunately, while ESI is a valuable adjunct to

triage care, ESI training does not teach triage symptom recognition nor imply a mastery of triage skill. In

fact, the ESI fits on the small slip of paper and consists of only six questions.

Watching the news, in my opinion, the Phoenix V.A. has misled the public into believing that ESI trainingresolve the safety deficits in triage. Problems, however, still reported to me by Phoenix V.A. E.R. staff.

Despite my formal recommendations, there has been no in-depth standardized nursing triage training

that would give the nurses the broad knowledge base needed to effectively evaluate patient symptoms.

There are still no minimum qualifications to be a triage nurse. Nurses who jeopardize patients' safety by

not following patient care orders are still working in the ED or E.R. I've been told that there have been

additional episodes of unstable patients escaping from the Phoenix V.A. E.R. since February 2015. Ill

patients still wait too long, greater than six hours, to be seen. And the E.R. continues to be flooded.

And e-mail series of last week stated that all rooms were full and there were 30 people waiting in the

waiting room. This e-mail series also reported other conditions that were described in the e- mail as

quote, "A recipe for disaster," end quote.

I've also remained extremely concerned about delays for consult care and appointments. I've

encountered recent cases in the spring and summer where the failure to receive a timely V.A.

appointment or consult may have contributed to a veterans's death or at, a minimum, taken away

quality of life before the veteran died. I'm prepared to discuss some of these incidents today with the

committee if it so chooses.

Since the V.A. scandal erupted, there has been no significant change in the dysfunctional institutional

culture there. Several of the offending senior administrators have voluntarily left the Phoenix V.A.without ever facing any consequences for their retaliatory behavior. Other unscrupulous Phoenix V.A.

administrators and supervisors remain in positions of power.

In fact, one administrator remains in a key leadership position, although he's caused problems in several

areas. According to a 2014 V.A. Office of Accountability and Review investigation, the same

administrator retaliated against a whistleblower.

Because you're Committee monitors the entire V.A., I want to make you aware that the issues of which I

speak are not only at Phoenix but potentially across the nation. The National V.A. has never established

standardized nurse triage training nor developed standardized nursing triage protocols even though

such training and protocols are readily available in the private sector at low cost or free.

Whistleblower retaliation is rampant throughout the V.A. Retaliation against physician whistleblowers

has driven physicians out of the Phoenix V.A., specifically, and elsewhere and is discouraging others

from applying.

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Because of time limits for this opening statement, I cannot go into detail regarding multiple other issues

including the dangerous design of the new E.R. that is obsolete even before it is built, gross difficulties

with telephone access within the Phoenix V.A., lack of digital faxes needed to avoid delays and record

receiving and the inappropriate switching of console-type without the ordering provider's approval.

I must say that I am grateful to the many dedicated Phoenix V.A. stuff both in and outside the PhoenixE.R. who have brought forward the issues of which I've spoken today. the Phoenix V.A. has the potential

to be a stellar V.A. facility because of the staff but desperately needs your help to achieve this goal.

Thank you.

SULLIVAN: Thank you, Dr. Mitchell.

And I think we're -- I believe we're still waiting on Ms. Morris. And if she arrives, you can please let her

know she can join the witness panel. We will submit her written testimony which I have read, for the

record for this hearing. And now, what we'd like to do is begin with some questioning of the witnesses

and have a discussion of these issues and out of my respect for my colleagues from Arizona, I will defer

my questions until after they begin.

So, we will begin with Chairman John McCain.

MCCAIN: Thank you, Dr. Mitchell and if you pull that a little bit closer so that we can hear you a little

better.

Dr. Mitchell, you have watched the evolution of events and legislation and the Choice Card and all of

that since the beginning of the terrible scandal that began here at the Phoenix V.A. as we all know. What

would you say has been the degree of progress or lack of progress since that happened?

MITCHELL: The V.A. has made progress. It was so far down in the hole as far as being behind in its abilityto care for patients that any improvements is -- are greatly welcomed. However, there are still too many

patients waiting to be seen.

It's very difficult to get appointments to the Choice program so patients are no longer delayed waiting

on E.R. or Phoenix V.A. waitlist but they're delayed waiting on a Choice waitlist either through a lack or

problems or difficulty reaching them

There certainly has been more staffing across the board, physicians and other ancillary service

personnel, and so that's an improvement. However, there's still incredible difficulty getting things

scheduled in the V.A., consults that are needed are delayed because they're -- they do not have

adequate providers.

MCCAIN: I don't often talk about my own involvement but I negotiated with Senator Sanders for the V.A.

reform legislation that was passed overwhelmingly by both Houses of Congress. And I wanted the

Choice Card for everybody no matter what.

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And in the negotiations, we -- I had to agree to the 40-mile or time waiting list. Would you believe that

we should go back at the issue where the choice card and make it available for every veteran no matter

where they're geographically located where or any wait time?

MITCHELL: I think that the Choice Card is a great idea especially for the specialist for which the Phoenix

V.A. and other V.A.s are short staffed and for which there are considerable delays in care.

The V.A. interest structure is incredibly good. Although I'm talking about the cracks in the V.A. care, the

actual V.A. nationwide has millions of high quality episodes of patient care every single year. The

veterans that are able to get in to the system, in general, are very happy with the care and they get

better care than they would in the community.

I do think that the Choice Program needs to be restructured because veterans are still waiting and

whatever structure changes can be made to decrease the wait is important. The other thing is you need

to look at the reimbursement for choice providers. Part of the problem is not the fact that the Choice

can't make appointments, it's the Choice can't make appointments because they don't have providers

signing up.

The Choice reimbursement is much lower than the payments for non- V.A. care under other programs

and lower than Medicare. That should not be the case.

MCCAIN: Mr. Byers, do you have view on the Choice Card?

BYERS: Yes, I absolutely concur that we keep the Choice Card. And again, remove some of those barriers

that veterans are having difficulty in some of the language. The language is -- is still not very clear to a

lot of the veterans that we see.

When it works, it works well. And I can say that because I've used the Choice Card with TriWest and theywere able to get me a provider that provided the services for me. But I still feel that we should have the

Choice Card. It's an excellent -- an insurance policy for us veterans. And I think it's important that we

keep it.

MCCAIN: Well, I thank you both for being here. And, Dr. Mitchell, we will continue to rely on you. I

guess, just one final question, Dr. Mitchell, and maybe this isn't a fair question but I feel compelled to

ask it. Would you go to the Phoenix V.A. emergency room for care?

MITCHELL: Absolutely not. And there's a reason for that. There are physicians in that E.R. that are the

best in the State of Arizona. There are nurses that fill that E.R. that are the most professional I've

worked with. The problem is you have to get past nursing triage and you have to get past the flood of

patients.

Right now, the Phoenix V.A. Healthcare System doesn't have a good way of dealing with urgent care

patients. Patients that are not -- don't need emergency care but certainly have issues that can't wait till

the next business day or the third business day or whenever the clinics can schedule them.

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As a result, you have a whole pool of people bearing down on this very small emergency room and you

have to -- it dilutes the people that are really sick to the people -- getting care to them as opposed to

getting care to the people that can wait. There is no standardized triage training and without that, it is

the luck of the draw if you have a triage nurse that knows what they're doing.

And frankly, in my particular case, the nurses who retaliated against me by impeding my care for illpatients, most of them still work in the E.R. and I don't trust their professionalism not to impede my

care.

MCCAIN: Thank you.

Mr. Chairman, I think I'd like to just add a comment for the record. We're deeply concerned. We

wouldn't be having these hearings, we wouldn't be passing legislation to try to fix it and on Veterans

Day, I went down to -- after the parade, I went down to Phoenix V.A. and people who are in the hospital

there are well treated.

We do have many dedicated people who are working there. There has been some improvement buthaving said that, I think we should give credit to a lot of the outstanding men and women who are

serving there. But I think fundamental changes still have to be made in order to allow these dedicated

men and women who are working at the V.A. to exercise their full capabilities.

And right now, I don't think that that is exactly the case and if there's one issue I would like for us to

continue and you and I and Senator Flake have had numerous conversations with Chairman Isakson, is

to make the Choice Card completely available.

I thank the witnesses.

SULLIVAN: Thank you, Senator McCain.

Senator Flake?

FLAKE: Thank you.

Mr. Byers, just to get an idea how things have improved or haven't improved, if you were to arrive

today, just like you did a few years ago from New Jersey, not knowing what you know now about how to

navigate through the system, how long do you think your wait time would be for the same issues and

needs that you had? What would be the change today from what it was before?

BYERS: Well, I could answer that because I have a lot of veterans that come to me for eligibility and they

need to get in to the V.A. Healthcare System. They go through eligibility and at least within 30 days,

they're assigned a primary care doctor. That's what the appointment says and that's where they go.

FLAKE: And that would have taken how long when you got here?

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BYERS: Why, after I got here? It took me almost -- well, I got here in August and I saw a doctor in

November. But I was told that it would be over almost a year before I could even see a primary care

doctor.

FLAKE: OK.

BYERS: But the veterans today, at least in my CBOC or here in the Gilbert CBOC, the eligibility works very

well and if you're in the system, they can get you a primary care doctor within 30 days.

Now, the problem is you have a primary care doctor. But if you need any kind of specialty or anything

else that you have to have, that's where the bog down is.

FLAKE: All right.

BYERS: I have some people that have to wait six months for appointment.

FLAKE: All right. Thank you. I should have mentioned in my opening statement like Senator McCain, I

appreciate what the City of Gilbert does, the programs that they have and the efforts that they make to

make sure that veterans here are treated well and received the care that they can.

Now, Dr. Mitchell, you mentioned that the culture has not changed at the V.A. What will it take to have

a change in culture? Is that a long -- decades long process? How could we expedite that and make sure

that it changes faster?

MITCHELL: In my opinion, central office has the ability to stop whistleblower retaliation today. They just

haven't sent out the memo that specifically states the penalty for whistleblower retaliation. For

example, there is a significant amount of retaliation against physicians.

There are sham professional standards boards, basically peer reviews where they say the physician is

incompetent when they're not. These boards are held without notifying the physician of the

accusations, without giving them access to the patient records, without having an impartial board given.

Then these impartial board makes a finding, says the physicians is incompetent and either fires them or

fires them and reports them to their professional standards boards. There are very clear policies about

how professional standards boards are supposed to be done.

In the community, they're only done when there are serious concerns that a physician is incompetent. I

know of seven physicians in the V.A. system either current or former, that are -- have either undergone

these sham peer reviews or are currently undergoing them. They have not followed the rules in any

particular case.

All central office has to do all -- one that the undersecretary has to do is sent out a memo and says that

at this point, all professional standards board reviews are to be on hold until you get the memo that's

coming in 10 days and in that memo, we're going to specify that the rules need to be followed and

whatever finding your boards have, they have to be verified by an independent third party.

15




I think that's important because there are physicians that don't practice quality of care that need to be --

that needs to be covered. But right now, it's a tool for retaliation. It's not considered a prohibitive

personnel practice so the Office of Special Counsel won't get involved.

While because, because Phoenix administrators and because administrators elsewhere have retaliated

against physicians, this is becoming well known in the community and physicians aren't applying for the jobs we desperately need for them.

Central office needs to come through, needs to state it stops -- it stops today and then have teeth to it

so every chief of staff, every service chief that is involved in the sham peer review is held accountable

immediately instead of just letting the physician fight on their own which can take years and be

financially and professionally devastating to the physician.

FLAKE: Thank you, Senator Sullivan.

SULLIVAN: Thank you, Senator Flake.

Mr. Byers, I want to follow up on a couple of questions. Can you explain a little bit about your -- the kind

of hand off when you went from New Jersey to Arizona. I'm sure that's, obviously, common for a lot of

veterans to be moving. How did that work?

BYERS: From New Jersey, you mean?

SULLIVAN: Leaving New Jersey? No, I didn't say that. But although I know this is a beautiful state so a lot

of people are -- a lot of veterans are coming here, just like my great State of Alaska. But how does that

work in terms of the handoff? In terms of the ability to actually just track veterans from one V.A. center

to another and are there -- are there lessons that you learn that we could focus on that can help

improve that handoff?

BYERS: Well, I think it would -- it would -- should be seamless, OK? You're in a V.A...

SULLIVAN: Was yours seamless?

BYERS: No. It wasn't -- it was seamless for me to contact and work with the Philadelphia V.A. while I was

here because I used My HealtheVet and My HealtheVet is a tool that we veterans can contact our

primary care physicians. We can instant message them and be able to talk.

But when they don't see you or when they can't, they cannot prescribe medications. So, the medication

was the main issue for me for that. So, that's why it was important for me to get a primary care

physician.

I had the eligibility. I'm priority one. I shouldn't have any problems whatsoever going into the V.A.

Healthcare System. But the wait time, because they did not have a primary care doctor, that's -- that

was the problem. That was not seamless at all.

16




And then when you get in to the V.A. system, they don't seem to be talking to one another. And I

understand that we have this great computer system, this CAPRI system that everybody should be able

to look at the medical records and see.

It took quite a while for that to get transferred here to the Phoenix system. I'm sure that that process,

hopefully, has been improved. But the V.A. should be portable. It should be portable if I have to gosomewhere. I mean, the V.A. Healthcare System, I should be able to use it anywhere.

SULLIVAN: Let me -- another element about your testimony focuses on the delays and, obviously, that's

something that the Choice Act was focused on addressing these large, lengthy delays. But your written

testimony, you noted, you waited over a year for your urology appointment. And did it actually take a

year or did something intervene in the...

BYERS: I requested a urological appointment because I had to follow up. This is what the Phoenix V.A.

said when I came to Phoenix, please follow up. So, when I -- I went to my primary care doctor as we

talked and I said I would like to have a referral for urology.

I don't know at that time if urology was taking referrals. My understanding is that urology department at

the Phoenix V.A. was -- they were very, very thin. I understand there's probably one urologist at that

time and he was retired and he wasn't taking any new patients.

So, I stayed in the process until finally I complained and how I had to complain? I had to change my

primary care doctor. I changed my primary care doctor, I got a new doctor, and probably in all that time

with,with all what was happening here with the Phoenix V.A., that's when it went out the referral and I

got my TriWest appointment.

SULLIVAN: So, initially, you -- they told you one year, you complain and it took how long to get that

appointment?

BYERS: Well, it took me over a year to get my urological appointment.

SULLIVAN: I hope the panelists in our next panel are listening to all these incidences because I think that

a lot of the explanation has to come from the officials whether at TriWest or in the V.A., on why a year

and a half after the Choice Act, we still have veterans who are waiting a year, a year, for an

appointment. It's unbelievable.

BYERS: Senator Sullivan, this was before the Choice Act.

SULLIVAN: Let me talk to Dr. Mitchell. I want to follow up on Senator Flake's comments about changingthe culture. In, you know, Senator McCain mentioned and I think we all agreed that the V.A. has many,

many great employees who are very dedicated at the hospitals, throughout the country. But your

testimony -- your written testimony actually ends by saying you don't think the culture has moved in

terms of addressing it almost at all.

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And, you know, if you had a magic wand to address not only just the facilities that you're familiar with

here in Arizona but the V.A. more broadly, what would you -- how would you focus on starting to

address the culture that you are still saying has not really moved a bit in terms of being able to address

some of the huge systemic problems we have in the V.A.?

MITCHELL: I would make sure that everyone sees the consequences for whistleblower retaliation.Frankly, any leader that's been confirmed to have done whistleblower retaliation through an OSC

investigation or an Office of Accountability investigation needs to be removed.

Right now, Senior Executive Service are held to a different standard of behavior than the rest of the

front-line employees and the front-line employees are grossly aware of that. Things that senior

administrators do and get away with, are things that front-line employees would be fired for

immediately on the spot. That needs to change.

It's not that there is a lack of people that are -- you're right, that are really good and dedicated to the

V.A., it's a probably that they are a few in positions of leadership that are making decisions for the entire

V.A. I am appalled at the lack of accountability for leadership.

And frankly, I'm really disappointed in Central Office that they haven't come down and truly held Senior

Executive Service. They should be held to a higher standard of behavior than the rest of us.

And until the -- until the leadership changes, I would also like to state although I -- Senior Executive

Service, I've certainly known several that were less than stellar, there is one, Lisa Freeman out of Palo

Alto, who rotated to the VISN office where I work and she embody some of the best characteristics of a

Senior Executive Service I've ever met.

And the central V.A. office needs to take recognition of leaders like her and have them train the newest

leaders coming up.

SULLIVAN: Let me ask you these two follow-up questions that relate to culture. You mentioned it,

Senator McCain mentioned that the Choice Act does provide the secretary of the V.A. with significant

authority to remove officials who have underperformed or performed in a way that should require their

termination.

Do you think that the V.A. is actually doing that or utilizing that authority and is that a way in which to

help change the culture which is to hold more officials accountable?

MITCHELL: I don't think the V.A. is investigating the issues of retaliation seriously enough. In my

particular instance, there was an office of accountability report in -- or review investigation. I was

interviewed last. The team refused to interview any of my physician witnesses which could describe

clearly multiple episodes of retaliation.

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The administrator who was involved was found guilty of retaliation in one instance when actually he was

guilty of retaliation in multiple instances that not only showed lack of leadership skills, but showed a lack

of basic medical ethics.

Someone who refuses to investigate when six physicians tell them nurses are impeding care for ill

veterans in the E.R. does not need to be in the leadership position and he lacks basic medical ethics.

SULLIVAN: What about the issue of funding? Since the implementation, since the passage of the Choice

Act, the V.A. has actually received an additional $15 billion to implement this new law on top of

significant increases in the V.A.'s budget over the last several years. Do you believe that it's a lack of

funding for the V.A. or is it another issue?

Some say it's a lack of funding, other have actually said that that might even be the problem in terms of,

I think, the budget has been dramatically increased. What do you -- how do you believe that the funding

issue either too little or too much relates to changing the culture?

MITCHELL: I think that the funding issue is part of the problem with the V.A., but certainly not the entireproblem.

SULLIVAN: Meaning they're underfunded?

MITCHELL: That they're underfunded. The V.A. provides tremendous high quality care and every time

we provide high quality care to a veteran, it attracts another veteran. And frankly, even in the E.R., when

they were able to get additional staffing to be able to care for more veterans, once they had more

staffing, more veterans came.

It's the same across the nation. There's been a 10 percent increase in appointments. I don't think the

public realizes how big the medical needs are for the veteran population.

What I do think that needs to be done also is that some of the funding needs to be better managed. Like

other people, I've listened to the media reports where I find that funding is being spent on public

relations that shouldn't be or other issues.

To give any more detailed answer, I'm not qualified because the issue is too complex. I do think there

needs to be an expert panel looking at it and a panel not of V.A. employees but of outside people such

as Secretary McDonald, he gathered a panel to look at issues and I think those would be invaluable to

seeing where the improvements need to be made.

SULLIVAN: Great. Thank you.

And, Ms. Morris, welcome. We're glad you're here and we'd welcome the opportunity to hear your

testimony. Please keep it to five minutes and then we'll also have a few questions for you. So, welcome.

MORRIS: Thank you.

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My name is Nicole Morris. I served overseas in Kuwait in 2004...

SULLIVAN: And please try to speak closely to the mike there. It's sometimes hard to hear.

MORRIS: I'm a Navy veteran. I served in Kuwait in 2004 and when I came home, I was told I was eligible

for V.A. benefits.

My first experience was a positive experience. There was a procedure that I needed done and they did

not do it at the V.A. and they're able to get me to a civilian doctor and have the surgery paid for. That

was a very positive experience.

However, a few years later, I was experiencing excruciating stomach pains and I did not have any other

medical coverage. I went to the E.R. at the facility downtown at the V.A. and I waited for two days in the

E.R. to be seen.

The first day, I waited until about one in the morning. I was told I wasn't going to be seen anytime soon.

And then I went home, came back. It was probably around 11 o'clock at night. I was finally seen.

When I was seen, it was very brief. They saw me in the back room for about five minutes, gave me some

pain medicines and told me to go on my way. There was not really an exam of what was going on with

me physically. There was no followup. I was just given pain medicine and told to go home.

There were other veterans in the E.R. at that time waiting that had more serious problems. I talked to

some of the veterans that had strokes, seizures, that were waiting in the E.R. for a very long time.

I was told there was priority list of -- it's not first-come, first-served, but it was a priority list and I was

down at the bottom of that priority list.

After that experience, I did not want to go back to the V.A. I'm a single mom. I'm a student. I don't have

any other health coverage and it was very disheartening for me.

I often have to pay out of pocket if I want to go to the doctors. I have to, you know, pay hundreds of

dollars out of pocket to go somewhere to the urgent care if I'm sick. I have tried scheduling

appointments. I no longer have a primary care physician. I never saw my primary care physician. It takes

month, two months, to get in if I want to.

It's just very disheartening. It's very stressful to try to get an appointment. I'm on the phone a long time

to wait to get an appointment. And, you know, I've been talking to fellow veterans and they share the

same stories.

I appreciate having the V.A. coverage, I really do. I'm thankful for it, but I think that there are big

improvements that can be done so I can be seen. I don't have to pay out of pocket. And so my fellow

veterans can be seen as well.

20




SULLIVAN: Thank you very much for that testimony and thank you for your service. I will ask Senator

McCain or Senator Flake if they have any questions for Ms. Morris.

FLAKE: Just during that emergency room visit, I can't imagine being there two days with just an

intervening short time at home. What was said during that time? Did they come out and check on you

or...

MORRIS: Not at all. No. I often checked in with them.

FLAKE: And there were others in the same condition or similar condition or...

MORRIS: Worse. There was a gentleman who had a stroke, a mild stroke, that I was sitting next to and

he was there with his wife.

FLAKE: Did it seem to be just too few personnel there? What seemed to be the issue that you could --

that you could tell?

MORRIS: I don't know. I don't know.

FLAKE: Dr. Mitchell, is that typical of some of what you've talked about there?

MITCHELL: Yes. What happens is you have to have -- there is a priority list. So the sickest patients are

supposed to be seen first. However, that depends on if the triage nurse is skilled enough to actually elicit

the appropriate symptoms. If not, then you're not put on the correct order and priority and you wait

longer than you should.

Stroke, there have been instances of which I've reported through the VISN office, the network office,

even this year where strokes were delayed in being evaluated, which there's a specific stroke protocol

and that should never happen.

There were strokes that the nurse didn't recognize as a stroke. There were strokes where a physician

didn't recognize it as a stroke and the veteran was sent home, only to return three days later with an

inability to walk, loss of vision, and having to be sent out to another E.R. or another facility that handles

strokes.

The other problem is that the E.R. is physically very small. Originally, it was eight beds and are -- I'm

sorry, 11 beds, eight rooms. Now, they've expanded so there are 22 rooms but they're still only

approximately eight beds that have cardiac monitoring abilities.

And so, if the facility is backed up as far as admissions, then those patients have to be held in the E.R.

and then everything else gets backed up. There -- the facility does not allow us to close the E.R. or at

least they didn't at the time that I was there for 10 years.

That means that although you can go on diversion and no ambulances show up, it doesn't stop very ill

patients from coming to the E.R. If they come to your E.R. and you do not have the capacity to care for

21




that ill patient, our facility does not or at least at the time I was there, did not allow you to send them to

another E.R. where they could get care quicker.

And that is an issue that needs to be addressed because there are ill patients. What -- when you hear

from panel two, you're going to hear a lot of really good statistics and the statistics are good in some

areas. But there are certain things that they are not going to want to mention.

One of them is the greater than six-hour waits in the E.R., those are calculated on a daily basis. Another

thing they're not going to want to mention is the extreme delays for non-V.A. care consults which are

outside the V.A. that are greater than 90 days. And also the consult delays that are inside the V.A. that

are greater than 90 days. Those numbers are huge. They're huge across the nation.

The V.A. is trying to figure out how to close them all and get people the appropriate care. You're also not

going to hear about statistics like the all-employee survey where the Phoenix V.A. was in the dumps as

far as confidence in leadership and psychological safety which all play in to fear of retaliation.

There are some serious problems in the E.R. that need to be addressed. There needs to be a way ofmanaging this urgent care patients so that they get seen as well as the sickest patients. Right now, you

are ethically obligated to see the most sickest patients.

You rely on your triage nurse to be able to identify the sickest patients and if they make a mistake, then

the sick patients wait too long while their conditions deteriorate and that's been ongoing problem since

I was there in 2003. It just got worse when our numbers increased.

FLAKE: Thank you.

Ms. Morris, I had a question relating to your testimony where you talked about the limited hours

available to receive gender-specific health care as a huge inconvenience for veterans. Can you talk alittle bit more about that and the experience and what you would recommend to try and fix that?

MORRIS: Sure. For years, the, Well Women's Clinic has only been on a Wednesday. And once again, it

was very hard to get in to that if I needed something right away, I had to wait a month, two months. Just

recently, they actually changed it so the primary care physician can do the Well Women checkups if they

are designated to.

However, they have to be accepting new patients in their networks, they have to be your primary care

physician, so there are still, you know, not every -- not every woman probably has a primary care

physician that can provide that service and you'd have to wait on a Wednesday to receive that service

and the waiting list is long.

I think, you know, with the recent changes to step in the right direction to enable the primary care

physician to give those services. So, maybe if we could open it up so it's not just on Wednesdays at the

V.A. downtown. That would be a good suggestion -- suggestion as well if I can't get into my primary care

physician because right now they're only on Wednesdays.

22




SULLIVAN: Great. Well, listen, well, I want to thank the panelist very much and I want to thank you all for

your service to our country and Dr. Mitchell to the V.A. and we will take a brief recess to move from the

panel number one and I want to invite the witnesses for the second panel to please come to the witness

table. Thank you again.

(RECESS)

SULLIVAN: I want to welcome the second panel. And the second panel will consist of Dr. David Shulkin

who is the undersecretary for health at the Department of Veterans Affairs. He's accompanied by Dr.

Thomas Lynch, the assistant deputy undersecretary for clinical health and Dr. Darren Deering and Dr.

Kathleen Fogarty -- I'm sorry, not Dr. Darren, that's the mistake I made there.

Dr. Kathleen Fogarty and also Dr. David Lynch who is the CEO of TriWest health care.

Dr. Shulkin?

SHULKIN: Good morning, Senator Sullivan, Senator McCain, Senator Flake. Thank you for the

opportunity to discuss the improvement of access to and timeliness of veteran's health care in the

Phoenix V.A. Healthcare System.

As you mentioned, Senator Sullivan, I'm accompanied by Dr. Thomas Lynch to my left who's the

assistant deputy undersecretary for clinical operations at V.A. and Ms. Kathleen Fogarty who's Acting

Director of the VISN here in the Phoenix region.

I'd like to thank Mr. Byers, Ms. Morris, for their service to the country and for their testimony today. I'd

also like to thank Dr. Mitchell for her testimony. We must depend on our employees to be vigilant about

potential sources of harm to our patients and to voice their concerns if a patient's safety is at risk and

they need to feel safe in doing so.

In September of 2014, the GAO issued its report on Management and Oversight of the Consult Process.

V.A. concurred with all six recommendations and is taking actions to address the concerns raised by the

GAO.

During this past year, VHA completed a national assessment of progress note completion and created

the technical capability to assess in complete consults. Solutions were implemented by extensive

national consult training within all the VISN's weekly national consult, calls, and a creation of a consult

training module.

In October of this year, V.A.'s OIG's Office of Healthcare Inspections delivered its evaluation of access tocare concerns in the urology service here in Phoenix. It was determined that Phoenix suffered a

significant urology staffing shortage and it's leaders did not have a plan to provide urologic services

during that shortage of providers.

To fill this need, VHA has hired six new urology employees since January of 2013. As of December 7th of

this year, the urology service had no patients waiting on it electronic waitlist. It had three consults

23




waiting greater than 90 days, all three of those now have scheduled appointments and 99 percent of

new patients are seen within 30 days.

Appointment volume doubled from their previous year while the average wait time from the preferred

date was at three days, eight days lower than it was one year ago. Urgent care appointments in urology

are available the same day.

VHA's efforts to issue disciplinary actions in Phoenix and to resolve the administrative leave status of

two employees have been delayed by inability to interview witnesses who have not been cleared by the

U.S. Attorney's Office and only recently where we give additional evidence by the V.A. OIG that we had

been requesting for the last several months.

Until we've reviewed all of that relevant new evidence that we have received, we have been unable to

make a determination what disciplinary action may be warranted related to the patients' scheduling

wait list issues. These employees are going to remain on administrative leave.

V.A. has reached expedited settlements with the Office of Special Council on the whistleblowerretaliation allegations made by three employees at the facility. Since some of the subject officials in this

retaliation cases are the same as those in the patient scheduling wait time case, we have not issued

disciplinary actions related to these retaliation allegations.

VHA has taken a number of actions in response to the events in Phoenix such as building partnerships,

with care in the community providers, reducing wait times, holding a national stand down for access this

past November and adding over 630 full-time equivalent employees to the medical center.

In November of 2014, the former medical center director was terminated and on October 20 of 2015,

Ms. Deborah Amdur was appointed as the permanent director. Today is actually her first day. VHA is

continually monitoring wait times and making adjustments as needed to ensure that veterans have

access to the best care they rightfully deserve.

During fiscal year 2015, Phoenix V.A. increased completed primary care appointments by 7.72 percent,

mental health appointments by 18.38 percent, and specialty care by 15.25 percent. During this period,

Phoenix completed over 680,000 outpatient appointments.

Overall, the Phoenix V.A. has completed 95 percent of all patient care appointments in fiscal year 2015

within 30 days of the date the veteran preferred and the average wait time for all patients and primary

care has decreased to six days as of December 7th of this year.

Average wait time for all patients and specialty care is 9.1 days, mental health, 4.8 days, and urology

three days. On November 14, 2015, V.A. medical centers across the country including Phoenix,

participated in the first national access stand down. Prior to the stand down, there were 1,650 open

priority one level consults at Phoenix open greater than 90 days.

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After the stand down, there were just 91 priority consults that still needed to be addressed and were

authorized for care in the community. And I should say most of those, we've been unable to contact,

that's why there are now nine new ones still left open.

Although the intent of this effort was to reach those veterans with the most urgent care needs, we will

not rest until we fix our system in order to better serve the health needs of all veterans.

VHA is also improving access through extended hours into the evenings and weekends to leverage

limited space and enhance convenience for veterans. Designated patient care teams perform extended

hours on the rotational basis.

In October 2015, VHA delivered the new veterans Choice program to Congress, proposing improvements

for the health care delivery to veterans. The plan addresses enhanced partnerships between V.A. and

community providers to deliver care in the community more seamlessly.

With the new veterans Choice plan, enrolled veterans will have greater choice and ease in use of access

to health care services at V.A. facilities in the community. Through September 2015, contractors haveadded over 9,100 Choice authorizations for approximately 7,200 veterans in Phoenix.

Additionally, the Phoenix V.A. created nearly 43,000 authorizations to veterans to receive care in the

private sector between October 1st 2014, September 30th 2015, a 45 percent increase in authorizations

when compared to previous year.

V.A. is committed to providing the highest quality care for our veterans who have earned and deserved

this care. Our work to effectively and timely treated veterans continues to be a top priority at the

Phoenix V.A. Health System and throughout VHA. We really appreciate Congress' support and look

forward to answering any questions you may have.

SULLIVAN: Dr. McIntyre?

MCINTYRE: Good morning, Senator -- good morning Senator Sullivan, McCain, and Flake. I appear before

you today on behalf of TriWest Healthcare Alliances nonprofit owners led by Blue Cross Blue Shield of

Arizona and are nearly now 2,500 employees, most of whom are veterans or family members of

veterans, to discuss the support that we are privileged to provide V.A. in 28 states in the Pacific,

including the great states of Arizona and Alaska as they execute their noble mission of caring for our

nation's warriors.

Our core job is to establish and provide our network and make sure that care is placed with it when it's

unable to be provided by V.A. because wait time or the care exceeds 40 miles from their home. I'm

pleased to appear alongside the team from V.A. led by new undersecretary for health, David Shulkin,

with whom I've been very impressed in the short time I've had the privilege of working in support of his

leadership. I would like to thank him for coming to the furnace and stepping in to lead the way.

25




Most importantly, I'd like to say thanks to Chuck Byers and Nicole Morris and all the veterans in

attendance today for their service. We're inspired and humbled by your presence. Know that we will not

rest until the final refinements of choice were in place and the program has achieved its potential.

Mr. Chairman, I asked that my written testimony be accepted into the record.

SULLIVAN: Without objection.

MCINTYRE: General George Patton once said, "A good plan violently executed now is better than a

perfect plan executed next week." I can't speak to pre-April 2014, but all of us associated with the effort

since to ensure that access exists for veterans when and where it is needed here in Arizona and

elsewhere know firsthand the definition of a good plan violently executed.

In fact, it was a result of the collaboration that we were able to collectively, in Phoenix, work off the

waitlist of nearly 15,000 veterans as the country was learning about Phoenix and the fact that it was not

the only place where supply did not match demand.

Though the Department of Defense took nearly three years for the design and implementation of

TRICARE, the situation post April 2014 in V.A. called for a schedule far more aggressive. Two months for

design and one month for execution.

But I would say that our fellow citizens who bore on the cost of battle deserves such intensity. Senators'

initial success was achieved with the design, production and mailing of the choice cards to veterans with

more than nine million delivered.

The phone systems were fully operational on day one and care began to be placed in the community.

Most in industry said it would take 12 to 15 months just to do that but we all got it done in 30 days, a

good plan violently executed.

But that was a year ago. Since then, as you know, you and your colleagues in Congress have broaden the

definition of an authorization so that cancer patients, pregnant moms and post surgical cases will no

longer face a 60-day care authorization limit. You broadened the definitely of 40 miles and you've

removed the pre-August 2012 enrollment limit.

For our part, we in V.A. have been collaborating fully, implementing a program to support the Phoenix

V.A. medical center in its emergency room to ensure that when patients show up with mental health

emergencies and cannot be handled directly by V.A., that we are able to place them downtown. And we

placed 166 veterans in the last couple of months, providing them with needed protection.

We've identified and are working to close gaps in operation. We've developed and refined tools to

better support the needs of veterans providers in our staffs.

We've identified unmet demand and further expanded the provider network to bring care even closer to

home and we're identifying resolutions to claims challenge as they're needed just like we did in the early

days of TRICARE on our road to becoming the fastest and most accurate payer in the marketplace.

26




While we're not done and we're not where we want to be, I think we're making progress. Today, there's

more than 11,600 providers in the network in Arizona, more than 156,000 across the 28 states that

we're privileged to serve; 300 to 500 are being added still daily. Secondly, the number of appointments

sought has grown from 2,000 in November 2014 to an expected 110,000 this month.

For those of you that did your math quickly, that's an increase of 4,900 percent in that period. InArizona, we'll be delivering on more than 4,000 appointments this month. Our staff has had to grow

from March in 400 to now almost 3,000 individuals.

Third, we've handled 3.8 million veteran calls in that period. Volume that's grown at 20 percent a month

with more than 690,000 in November alone. And our abandonment rate is a mere 3 percent. We're not

where we want to be at. We don't like it at 3 percent. We'd like it lower.

We want to be at the same industry leading performance that we were in TRICARE as validated by five

successive J.D. Power awards. Full success, not yet. However, we believe that together, we can get there

faster than we did in TRICARE and our nation's veterans deserve no less. So what's the work that

remains from our perspective?

First, we're implementing major improvements in provider experience that was developed in

collaboration with the providers from our network and our long-time partners at the ASU customer

service institute. Second, we're approaching the second round of demand forecasting with V.A. to

determine where network is optimally placed.

Third, we're soon going to train the behavioral health providers in our network on veterans experiencing

combat just like we did in the early days of the war under TRICARE. Fourth, we'll soon be implementing

the expansion and care authorizations for cancer, pregnancy, and post surgical patients.

Fifth, we're going to be embedding staff at the V.A. facility here in Phoenix and in Alaska to create -- to

recreate the successful service center concept that we developed in TRICARE. And sixth, we will be

relentlessly focused at the start of next year on gaining feedback from veterans and partnering with ASU

to improve veteran experience.

Senators Sullivan, McCain, and Flake, I believe the overall experience is getting better but we have a lot

of work to do before we achieve the vision that you and your colleagues had in the unprecedented

action to both authorize and fund the Choice Act in one bill. It is with deep humility and profound

respect for our fellow citizens who put it all on the line for our freedom that we continue to lean

forward.

The same is true for our runners who, by the end of March 2016 will have invested nearly $60 million of

their own money in an effort to scale, stabilize, and ultimately refine our operation so that we achieve

our potential and honor the commitments we made when we step forward to be the high performing

the V.A., partner to V.A. that we were to DOD and TRICARE.

27




We take our responsibility very seriously for V.A., for veterans and this committee can rest assure that

our entire focus is on ensuring that our work in support of V.A. and the veterans who rely on them for

care is fitting of the sacrifices of our heroes and is worthy of their trust.

It is for this reason that we will remain impatiently focused on the path of violently executing the plan

until we achieve the success that we know is possible.

Mr. Chairman, this concludes my testimony.

SULLIVAN: Thank you, Dr. McIntyre. I know we have a number of questions.

I'll begin with Senator McCain.

MCCAIN: I thank you for your testimony. Dr. Shulkin, you've made a very favorable impression on those

of us who have had dealings with you. I believe that you are working very hard and I also appreciate

your efforts to improve our communication in relations with members of Congress including the

Veterans Affairs Committee. So, I thank you for -- and Dr. Lynch for coming out here to be at this hearing

today.

And Mr. McIntyre gives a rather optimistic view. In front of you is a chart that shows that, obviously,

veterans waiting over 30 days for appointments that kind of contradicts what Mr. McIntyre said.

Because if TRICARE was doing a great job that he claims, I would think that veterans waiting over 30

days for medical appointments would show a decline. Maybe you can respond to that? Would you

disagree with that chart or whether -- what your comments about that are?

SHULKIN: Yes. Thank you, Senator.

First of all, I do want to thank you as well. I think that all three of you, your willingness to speak out on

behalf of veterans and to work with us to improve the system is very much appreciated. And as you

know, Senator, I believe unless we do this together, we're not going to achieve the best results so I

thank you again.

The wait times that currently exist are not acceptable to V.A. and that's why we're working so hard to

make this better. The way that we are working is really a dual approach.

We are hiring additional staff in the Phoenix V.A. We've hired over 600 new employees. We are adding

space and we've recently added some space and have additional plans to add significantly more space.

We're improving our efficiencies. So, we're working internally. But most important, and again, thanks to

Congress because of your leadership with the Choice plan, we have really utilized care in the

community. We are up about 80 percent in terms of care in the community from where we were. Now

we have more to go and a lot more to go but I want to make one additional point.

28




As we've been saying recently, V.A. and, really, I think Dr. Mitchell made this point, as V.A. gets better

and veterans regain their trust in the V.A., we're going to see more veterans coming back to get care in

the V.A. system.

So, our overall wait times are probably not going to go down. What we are really focused on now is

making sure that nobody who is waiting is being harmed. And so, we're focusing on those veterans whoneed care with the highest priority, the most urgent care. And we can really tell you that that's what our

stand down was about, making sure people who need care are getting in to see V.A. or getting into care

in the community.

And so, we're not satisfied with that, Senator, but we are making sure that people aren't waiting and

being harmed.

MCCAIN: It seems to me then, from what you're saying, that wait times won't go down anytime soon.

That's urgent call to make the choice card universal.

SHULKIN: Senator, that -- I think that is accurate. We are not saying that wait times overall are going togo down significantly at all. In fact, as we've improved the system, they may actually go up and that does

mean that we need to make sure that we are working better with providers in the community using the

choice program.

We are focused on improving the choice program, that's why we submitted a new plan to Congress that

asks for your help in making sure that we can make the system work better for veterans.

We need legislation for new provider agreements, we need the flexibility to have funding for care in the

community being to a single pot rather than separate programs and we want to make this program that

you gave us work even better than it's working now.

MCCAIN: Well, I don't want to belabor the point but I think that the prospect of veterans waiting over 30

days, no matter their medical need, is not acceptable. And if they had a Choice card, they wouldn't have

to wait 30 days, they could go out the next day and get an appointment with a physician of their choice.

Mister -- Ms. Fogarty, do you have full confidence in your emergency room today?

FOGARTY: Senator, thank you.

The emergency room has really experienced quite a lot of change over the past year and made several

improvements. I'd like to give you a sense of what those are.

We've had increased the E.R. in mental health staffing. We've increased the spaces Dr. Mitchell

identified and we have currently a construction project underway. We've added 24/7 social work

coverage that was not there before.

We've approved and recruited additional psychiatry to also have 24/7 coverage. We've added five

mental health R.N.s to the E.R. We've established a standard medical clearance protocol for patients

29




that need to be admitted to our mental health. We really think our partners with TRICARE and TriWest

because they do allow us when we are full to have that community to be allowed to take our patients

that we couldn't have.

We've had standardized training and documentation for patient safety observers called sitters that are

sitting and watching any suicide ideation patients that come in. We redesigned four of those examrooms and a rest room to make them safer for suicide ideation patients to help prevent a serious

elopement.

MCCAIN: You are aware of the Clay Hunt Suicide Prevention Act?

FOGARTY: Yes, Senator, very much.

MCCAIN: Is that helpful?

FOGARTY: It is. And we thank you for that. And it is one of those that we worry the most about is those

coming and we really have to be the most diligent on those that come...

MCCAIN: Do you have some examples of intervention that have saved some lives? I don't ask for them

but you do?

FOGARTY: Absolutely. And I...

MCCAIN: Are physicians leaving the Phoenix V.A.?

FOGARTY: Are physicians leaving?

MCCAIN: Are physicians leaving the Phoenix V.A.?

FOGARTY: No, sir.

MCCAIN: They're not.

FOGARTY: We, as you saw here, of what we've netted of 600 FTE, we have hired over 160 on the VOCA

funding for us. I can give you some specifics on the physicians that we gave...

MCCAIN: That's all right. I just...

(CROSSTALK)

FOGARTY: We do have, by attrition, as you know, physicians do retire or do seek with family moves. Wehave had...

MCCAIN: But you don't have...

FOGARTY: But we don't have...

30




MCCAIN: You don't have physicians leaving the V.A. Thank you.

Mr. McIntyre, what has been your experience with the Choice Card and does it need to be made

universal?

MCINTYRE: I think that it's starting to take hold in terms of its use. The fact that there's a 110

appointments that are going to come our direction this month from 2,000 at the start of this indicates

that we're on the right...

MCCAIN: Mr. McIntyre, the fact there was only 2,000 at the start is because they didn't know about it.

MCINTYRE: Yes, sir.

MCCAIN: So, please, don't keep throwing that one up at me. I want to know whether you think the

Choice Card is -- should be made universal or not.

MCINTYRE: I think that people's ability to access care downtown when it's not available in the V.A. and

when it's not close to their home is exactly the right thing to be doing.

MCCAIN: And what impediments do you see to better usage?

MCINTYRE: I think that people understanding the program, first of all from an education perspective

which we all can share in is valuable.

Secondly, I think changing the kinds of policies that have been changed will help smooth this out. And

third, I think our operations needs to continue get stronger and more integrated in order to make this

process work more effectively.

MCCAIN: Thank you.

Dr. Shulkin, one of the sources of great frustration to many of us is especially you're in Phoenix is the

fact that it's undeniable that there was -- there was really people who did not do their job. Otherwise,

we would never have had 50 veterans who were on a non- existent waiting list.

And yet, to our knowledge, maybe you can help us out, there's only one person, one person that has

been removed from office. People don't understand that. When 50 people die on a non-existent waiting

list and there's only one person that is held responsible and many others are on, quote, "administrative

leave" with full pay paid for the taxpayers.

Please help us out on that one.

SHULKIN: Senator, we hear that frustration loud and clear. There's no question about that. We did

remove the director as you said. We've placed two other officials on administrative leave.

The V.A. would like...

31




MCCAIN: So, that means paid. That means they're being paid?

SHULKIN: Paid administrative leave. We would very, very much like to conclude our administrative and

disciplinary actions against those two officials. The U.S. attorney as, I've said in my statement has

prohibited us from interviewing those individuals and the OIG just 30 days ago gave us 10,000 additional

pages of evidence on this individuals and last week and additional thousand pages.

As soon as we can go through that evidence, we are committed to making an action December 9th,

Deputy Secretary Gibson testified before the House Committee and said we are no longer going to wait

for OIG to act. V.A. will act independently as soon as we can and we're committed not to putting

additional people on administrative leave but we will detail them to work.

If the taxpayers are paying these individuals, they need to be working and those are changes in the way

that we're going to be dealing with this in the future.

MCCAIN: Why, thank you, but I would remind you what you know and that is the Senior Executive

Service is a unique situation as opposed to your average civil servant. And the senior in SES people areeligible for many benefits and rewards for excellent performance.

But they're also liable or can be fired and removed from office with much less reason than if they were

an ordinary member of the civil service.And many of these individuals who were in charged are

members of SES and yet that option has not been exercised. Maybe you can respond to that?

SHULKIN: Yes. Since Secretary McDonald was sworn in July of 2014, there have been eight SESes

removed by the secretary and that option is available to him. I think that we are all firm believers, the

secretary, the deputy secretary, myself, in accountability. We have articulated that we believe that we

must do this principally based. There has to be evidence to match the actions or the punishment or the

reward.

And so, we're making sure that the evidence does match this. We hear you loud and clear and V.A. is

committed to moving quicker. We will not wait for OIG actions in the future because it's very important

that people understand that if people aren't following our values, that they don't belong in the V.A.

MCCAIN: Thank you and I thank you, Senator Sullivan.

I just want to repeat again, Dr. Shulkin, you have been, I believe, admirably involved with members of

Congress and communicating with us and being frank in your assessments and that is appreciated by

members of this committee. I thank you.

Thank you, Mr. Chairman.

SULLIVAN: Thank you, Senator McCain.

I want to make a quick comment just on what he mentioned. Mrs. Fogarty, the Clay Hunt Suicide

Prevention Act which was the first bill that I cosponsored in the U.S. Senate named after a young marine

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sniper who suffered through despair and did not get the service that he needed from the V.A. and

ended up taking his own life.

And the number one cosponsor of that bill in the Congress which passed unanimously was Senator

McCain and that's what he was referring to. So, talk about an issue that really matters. That suicide and

the one member of the U.S. Senate who's led on that more than anyone is Senator McCain.

And I'm glad to see that that is having an impact because there's nothing worse, nothing worse than

having, whether it's a Vietnam vet or a vet from Iraq or Afghanistan coming back, experiencing

depression and despair and having nowhere to go. And that is probably our highest responsibility to take

care of those veterans.

Senator Flake?

FLAKE: Thank you.

Ms. Fogarty, if Ms. Morris were to go to the V.A. today, the emergency room, like she did before and

present the same symptoms, what would be her experience?

FOGARTY: Well, first, I would like to acknowledge how disappointing to hear those statements of a

veteran coming to our emergency room and having that wait. It is -- it just is not what our standard of

care should ever be.

And today, I believe that she would have a very different experience of what we have improved and

have made I would also believe that there is that opportunity with the Choice Card that she could seek

care in a private facility and have that reimbursed as well.

FLAKE: But if she were to go down to the E.R., her wait time in the E.R. itself would be considerably

shorter and she would have a different experience since she had before?

FOGARTY: I would -- I would truly hope that is the experience because that's what we are working

always to have exceptional experience and have done great things in our emergency department to

make that experience be.

FLAKE: The issue -- the issue...

SHULKIN: Senator Flake, let me just add. The average wait time in our Phoenix ED from the time that you

register to when you see physician or provider, the average is 35 minutes.

But that's an average and you will still find times in the emergency department where there critically old

patients and patients like Ms. Morris that have a critical illness, we'll wait a lot longer than the patient

wants to.

This is a national issue with emergency department overcrowding. And so, we wouldn't want to say that

this will be our experience but there would be times where patients will wait.

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FLAKE: All right. Thank you.

Dr. Shulkin, I, like Senator McCain, believe we need to get to a point where the Choice card is used

universally and not with restrictions on mileage or whether there's a clinic or whatever else but that gets

to kind of -- the not -- the whole issue here at how much choice can the V.A. withstand.

If a significant number of veterans choose that opt-in, at what point does it impact the ability of the V.A.

to have the funds and resources to operate its facilities and then to have the level of care that veterans

should expect? Are we close to that tipping point and does that is that why we have the restrictions that

we do? Can you kind of explain that conundrum that we're in?

SHULKIN: Sure. Senator, very complex issue as you said. But, first of all, as I previously said to Senator

McCain, we are very grateful for Congress' leadership in providing us the Choice Program. We think it

was the right thing to do and we want to make this program work better for veterans.

We know too many veterans have experienced the complexity of it, the confusion, the lack of

knowledge about it as have been mentioned. And we are committed, as Mr. McIntyre said, to makingthis program work.

We have submitted what we think is a very thoughtful plan to Congress that we delivered approximately

a month and a half ago that lays out how we want to take the original choice legislation and make it

work better and we need your help, we need provider agreements as soon as possible.

We need the flexibility to make these spending easier for us to serve veterans and care in the

community. We are very much in support. V.A. has been providing care in the community for years, over

$10 billion of our care was spent -- of our dollars was spent for care in the community.

So, our plan, we think is a very thoughtful balance of keeping the V.A. strong because America needs astrong V.A. and serving veterans by allowing them the ability to seek care in the community with the

highest quality providers.

FLAKE: Mr. McIntyre, has the V.A. done enough to advertise the Choice plan among veterans and to

ensure that they understand their rights and ability to access private care?

MCINTYRE: I think the V.A.'s done a remarkable job over the last couple of months of really stepping up

the focus in that space. Part of the thing we're all hampered by...

FLAKE: That implies that it's only recent phenomenon?

MCINTYRE: No, I -- at the very front end, you know, we had 30 days to stand this up. it's hard to educate

people internally and externally in an effective manner. And there's been a real effort within the V.A. to

figure out what populations need to be reached and how do we do that collectively more effectively.

What I'll tell you, though, is part of the challenge we all face is that the policies haven't yet stabilized for

how this all works and what you access and what are the limitations are.

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And I would encourage that once that's done by essentially what's going to be the end of January is that

there's a dramatic new push by everybody, including the media and members of Congress, ourselves in

the V.A., to make sure that people really understand what it is that they have.

It's rather remarkable. We have providers all over the state so that if you live in a rural area, the number

of primary care providers that are accessible to you is rather dramatic.

And you have new rights under the Choice Program to actually go and seek care in the zip code in which

you reside, not to have to drive a long distance in order to get that care.

FLAKE: Thank you, Mr. Chairman.

SULLIVAN: Thank you, Senator Flake.

I want to echo Senator McCain's comments about Dr. Shulkin. For the audience's knowledge, he came

on board as the undersecretary, the number three official at the V.A. just in August. So, as I've said,

certainly didn't cause these problems.

He's someone from the private sector, accomplished doctors around hospitals. He wants to do what's

right to fix the problems and he is aware that the Committee, though, will not be standing by if we don't

see that the problems are being fixed.

So, Dr. Shulkin, I did want to follow up on what Senator McCain talked about on accountability. And I

think it's really important for members of Congress, but more importantly, members of our veteran

community across the country, to see that something is being done.

You mentioned about, you know, we hear you loud and clear is what you said to Senator McCain. I was

disturbed by reading a recent article in the "Washington Post" on a House Veterans Affairs Committee

hearing just last week with Deputy Secretary Gibson not sounding like he is hearing us loud and clear at

all.

He said, quote, when asked about who -- when asked about accountability of members of the V.A., he

was pushing back saying. "You can't fire your way to excellence and my many years in the private sector,

I've never encountered an organization where leadership was measured by how many people you fire."

Quote, "We won't administer punishment based on OIG opinions, referrals to the Department of Justice

recycled and embellished media accounts or external pressure. It's simply not right." He called some of

these cases, quote, "Failures of judgment but not ethical breaches."

So, last week, the number two guy in the V.A. sounded like he was pushing back against Congress' very

legitimate questions about who is being held accountable in the V.A.

So, I think one of the things that we would want you to do is take back to the deputy secretary and the

secretary of the V.A. saying I certainly don't think that that kind of -- those kind of statements are

appropriate. It doesn't sound like he's getting the message at all loud and clear.

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So, how many -- to go back to go back to Senator McCain's question -- how many V.A. officials in the last

two years over all these scandals in wait times and our veterans not being treated the way they should

be, how many V.A. officials have been terminated from their job?

You've come from the private sector. You have a very, very stellar record in the private sector. I know

that the hospitals you've worked at would be firing a lot of people had things like this happen likehappened in Phoenix. What is the number?

SHULKIN: Senator, as you said, I've been in the system relatively new, you know, only a few months. I

will tell you, I spend a fair amount of my time with Deputy Secretary Gibson and Secretary McDonald

talking about these issues.

I will tell you, these are two of the finest leaders I've ever worked with in my career. They take this very

seriously and I don't think -- I don't think that's an accurate representation of the Deputy.

SULLIVAN: I was simply quoting him.

SHULKIN: Yes. Absolutely. What -- where the deputy stands on this, I know the secretary as well is that

we are committed as leaders and I stand right with them that we are going to take a look at the

evidence and we're going to make decisions about who deviates from values and policies and we are

going to hold our employees accountable.

What we're not going to do, we're not going to have people tried in the press and tried through

allegation. We're going to treat people fairly because that's the way you run great organizations.

The day that you asked for, eight SESes have been removed since the secretary was confirmed in July of

2014 and 2,100 employees have been terminated. And we will continue to hold people up to these

accountability standards.

But we're going to use the evidence and what the deputy said in that hearing was that he welcomes

anybody else, a member of Congress to come and look at that evidence and show him if we're not

making good decisions. But he's going -- he's going to uphold his leadership responsibility and I stand

with him on that.

SULLIVAN: 2,100 V.A. employees have been terminated for wrongdoing since these scandals?

SHULKIN: Since July of 2014 when the secretary was confirmed.

SULLIVAN: Perhaps, for the record, you can provide us the details...

SHULKIN: Yes, sir.

SULLIVAN: ... on those and the eight that you mentioned and those have been fully terminated or as

Senator McCain mentioned, on leave?

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SHULKIN: No, those -- those SESes have left service. They have either been terminated, have resigned, or

chosen to retire.

SULLIVAN: So, I'd like -- for the record, the details on all of those for the Committee's...

SHULKIN: Yes, sir. Be glad to do that.

SULLIVAN: ...review. Thank you.

Another quick question is something that you and I saw in Alaska that I continue to see. Then I think it's

something we need to work on, where I still see veterans who have come up to me talking about

appointments they've had, and you and I saw this when we were up there, that have been approved by

the V.A. and somehow the reimbursement is not happening in such a way where these veterans are

now being sent to collection agencies.

I'm still seeing that. I'd like to get your commitment to work with the committee to put a halt to this.

The idea that a veteran gets approved by the V.A. for an appointment, goes to it. The provider, either

through Triwest or the V.A. doesn't reimburse what's happened with regard to who's providing the

service.

And then that agency is collecting upon the veteran is outrageous. And you saw it when we were up in

Alaska. I'm still seeing it. I'd like to get your commitment to work -- both of you, Dr. McIntyre, on this

issue which just obviously as enormous stress for our veterans when a collection agency's calling them

and saying they owe a $50,000 bill.

SHULKIN: Yes. first of all, I heard this with you. Absolutely. It's outrageous. We do not want that to be

happening where if the V.A. authorizes care, the veterans should not be held accountable for that. You

have my commitment. That shouldn't be happening.

I would like to get the names and the specifics of anybody that you're hearing from any of your offices

and we will intervene to make sure that that does not happen.

SULLIVAN: Thank you.

Dr. McIntyre, you mentioned in your testimony that the relationship between the V.A. and TriWest has

matured substantially. What more needs to be done to develop that relationship in a way that

ultimately does what you're supposed to be doing which is benefiting our veterans?

MCINTYRE: Senator, I'd like to thank you for that question. I'd also like to state that I too am committed

to making sure that if you have cases where veterans are getting build inappropriately by providers that

we'd like to understand what they are so that we can work those issues out and we will do that in

support of Dr. Shulkin.

With regard to the maturation of this program, we believe that the inner threading relationship that's

starting to develop at the ground level is really important. And one of the things that we're going to be

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launching in Alaska, as you know, effective January 11th, is the opportunity to have a joint service center

at the ground level.

I won't tell you that it's one thing for us to have policy-based discussions and operational gap discussions

up at the top. But it's quite another thing when you get down do the deck plate where veterans are

being served on a day-to-day basis.

And your concept, which were also going to be rolling out, Senators McCain and Flake here in Phoenix,

of having an integrated service center that's located close in proximity to the veteran couldn't be more

right on the money.

From the standpoint that you could walk a veteran down the hall after an appointment in the V.A.,

educate them about choice so that there is no lack of understanding, give them some materials and find

out what their preferences are in terms of appointments, how they'd like to be contacted and like as

exactly what we ought to be doing.

And, Dr. Shulkin, our organization and our entire teams are working to make sure that that's going to getprototyped in both Alaska and Phoenix.

So, are you -- are you looking at, though, in terms of your call centers which I know have been a big

enormous issue with regard to frustration for veterans across the country because there's not a

localized component.

So a veteran from Arizona calls and I don't know where your call centers are located but Arizona or

Alaska and they're having issues. Are you looking to start localizing and integrating those call centers

throughout the country?

SHULKIN: Great question. Thank you for the question, by the way. When we started Choice, we had 30days to go from a blank sheet of paper to full on operations on November 5th. We had to hire 850

people but we didn't know the number until we were 10 days out.

So we turned to a third party vendor that supports other organizations in managing backup in their

contact center operations. That was separate from how we were running our operation in PC3. We took

all the calls, directed them to that organization.

We've been weaning our selves off of that. When we came to the conclusion in the summer, when we

were at 3,700 appointments a month that we were going to face a meteoric rise in demand.

We now, tomorrow, we'll announce in El Paso, the 10th operation center. Eight of them are now up andfully operational. The one that serves Arizona is right here near Gilbert. It's in Tempe and we have a

number of employees here.

The operation for Alaska is served out of Puyallup which serve very effectively Alaska in PC3. And then

what we're doing is we're inserting on a test case to start with these customer service staff at the local

level integrated with the V.A. staff, much like we did in TRICARE.

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So, if you could think about it, it's a hub and a spoke operation. So, you have a hub that sub geographic

in it's location and you have these nodes, facility by facility by facility. That's how we hit world-class

service in TRICARE.

Our intention is to roll out the same, be done with that, by the beginning of March and that's the

trajectory that we're on.

SULLIVAN: Thank you. Just so on the pilot program, we've talked about in Alaska. When is the date that

that's going to be implemented?

SHULKIN: So, there's three phases. The first phase was to take all calls and route them into Puyallup for

Alaska. That happened right after the hearing in August that we were at together.

The second phase is to place staff co-located in service center within the Anchorage V.A. and we're also

going to have other staff in Alaska on the ground in Fairbanks and probably in south east. That will go

live January 11th.

And there, as we will do in every other location we're going to roll this out, we're taking seasoned staff

that already know the market and the will go there first and then we will hire right behind that so that

we can make sure that we don't miss a beat.

The third phase, as you know for Alaska and unique to Alaska, is that the scheduling configuration will

change. And we'll have more engagement between the V.A. staff in Alaska and the veterans and the

providers in that community and we're in the process together of finishing the design of that so that

that will next be able to roll out.

SULLIVAN: May I ask a final question? Mr. Byers talks about the problem with providers being

reimbursed and how there was an issue of the lack of reimbursement and then all the veterans who hadappointments that provider doing urological services were going to be dropped.

Have you -- both of you have been focused on making sure that those kinds of things don't happen,

that's a key element of the Choice Act and if the providers have any kind of clarity, it's going to be

difficult for them to provide the services they need to our veterans.

SHULKIN: Yes. Senator, I'll be glad to start and if Mr. McIntyre wants to add to this, that's fine.

Actually, TriWest does a very good job of paying its providers. I think, if I'm not correct, you're close to a

100 percent within the 30 days. So, this is actually a problem for V.A. because TriWest pays the Choice

bills, V.A. pays the care and the community bills.

We have not been doing as good a job as we need to, in my opinion, in paying our providers. Coming

from the provider side where I spent my life when you give us service, when you see a patient, you

deserve and expect to get paid.

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We're at about 75 percent payment within 30 days. We have antiquated rules and antiquated systems.

We've asked for some help in this in simplifying the care in the community funds from Congress because

we need this to get better.

Our new plan says that we're going to take a look at V.A.'s ability to pay and make a build-buy decision.

Because quite frankly, we either need to invest and improve a lot better on our payment or we need toget out of the payment business and give it to people who know how to do this.

So, the status quo is not acceptable. Here in Phoenix, we frankly have two large of an accounts

receivable for your big systems and like Banner or Dignity and your other providers. We have our teams

on site here in Arizona working out those payments right now because it's not acceptable to me that

providers have to wait this long.

MCINTYRE: And if I might follow that -- and thank you for the kind comments -- we have our own

challenges from time to time in this space. My dad was a doc. He served as an Army doc in Vietnam. And

then went on to operate in private practice including in the great state of Alaska as an ophthalmologist.

And what I'll tell you is that it's really important, as we discovered in TRICARE, to make sure that the

payment is timely and accurate because we're asking people to stretch themselves and take this patient

population which they very much want to do, make it as little bit bureaucratic as we can and make sure

that the timing of the payment works right.

What I'll tell you is we're gaining on where we want to be but we're not there yet. And we're spending a

lot of time with providers trying to figure out where the gaps are so that we can make sure that we're

able to give feedback to the V.A. on operations changes that we want to make and that they might think

about making.

And we're collaborating very closely on that. The banner situation, we own a part of it, the V.A. owns a

part of it and we're working together very closely to try and resolve those issues and I'm confident that

we will.

Here's what I'll tell you. We are at 95 percent plus for clean claims within 30 days. That's one year in. It

took us longer to get there in TRICARE.

And what I'm going to commit to you, all of you and to the veterans that we're privileged to lean

forward for at the side of V.A. and the providers in this community and elsewhere, we will get this right.

We'll get it right together but it's really important that it's right so that people don't feel like, well, the

bills not going to get paid over here, so I'm going to send the veteran to collections in order to be able topay my bills.

The second thing is in urology, in Phoenix, Arizona, when the furnace lit off in April, we ultimately came

to find that of the 14,700 on the waitlist, 3,300 of them were urology patients. At the time, there were

72 urologists in Maricopa County.

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The V.A. had us on speed dial. We rolled up our sleeves together, we figured out how to design the

demand capacity mathematical process together which we're using to grow out network together across

the 28 states in the Pacific, and we figured out what it would take to place providers, how to do it on a

severity basis and make that happen.

And I had, while Chuck was testifying, I had the information pulled with regard to his experience.Because it was a while ago, I was having a hard time remembering it.

We received his care request from V.A. on June 10th. We had him appointed on the 17th of June. And

the practice that saw him took more than 50 percent of the 3,300 urology patients and processed them

within seven weeks. They should be sainted.

And their patients agreed to step side in their calendars and serve people like Chuck. Chuck got seen

initially on the 20th, three days after he was appointed. That's the way they should work and there's

providers in this community, in your great state and all over this country that said I don't want to replace

the V.A.

Nut I'll be there if I'm needed, just hand me a few. And like what we did in TRICARE, let me take care of

them and then make sure that I get paid properly for the work that I've done and on time.

And that's our commitment. And I know from the work that I've done with these three, that's our

collective commitment in terms of where we want to be and we want to get there as fast as we possibly

can.

SULLIVAN: Well, they should be sainted but they're not going to continue to be committed to our

veterans unless they're reimbursed. So, I think that's a key issue.

Senator McCain?

SHULKIN: And they have been and they're still in the network.

MCCAIN: I want to refer you, Dr. Shulkin, back to that chart about -- that shows the veterans waiting

over 30 days. The Phoenix V.A. line is roughly double that of the national average. That obviously, is very

disturbing to anyone who represents the State of Arizona that we should be almost double the

percentage your people who are waiting over 30 days.

We're not proud of the fact that this whole thing really was ignited by what happened at the Phoenix

V.A. I would hope that -- that extraordinary efforts would be made at least to bring that orange line

down to the blue line. It's -- that part of it is really something that's not acceptable to those of us whocare about our veterans in Arizona.

SHULKIN: Senator, not acceptable to me as well. As you know, the country is experiencing a shift from

V.A.s that were in the Rust Belt down to areas like Arizona that are very attractive for veterans who,

particularly who are retiring.

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We saw a 6 percent increase in unique veterans using the Phoenix V.A. last year. So, we're growing. We

have to plan for that and that's in part, making this more difficult. But we will not rest until we add

capacity. We have 738 positions we're recruiting for today. We're adding new space.

We just -- our new director started today. We need stable leadership in order to make this work. I have

extreme confidence in our new leader to be able to do this and I can assure you, extraordinary effortsare what we're going to do to get this fixed.


Testimony on Behalf of Lance Robinson2 (00064837x87C30)

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Transcript of Testimony on Behalf of Lance Robinson2 (00064837x87C30)