NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not citable as precedent. It is a public record. 

## United States Court of Appeals for the Federal Circuit

05-3187 LAUREEN TAYLOR Petitioner,

v. DEPARTMENT OF VETERANS AFFAIRS, Respondent.

_________________________ DECIDED: March 17, 2006

_________________________ Before MICHEL, Chief Judge , MAYER, and LOURIE, Circuit Judges

. MICHEL, Chief Judge

. Laureen Taylor, a Licensed Practical Nurse (“LPN”), appeals a decision of the United States Merit Systems Protection Board (“Board”) upholding a decision of the Department of Veterans Affairs removing her from service as a p sychiatric nurse at a Veterans Administration Medi cal Center (“VAMC”) hospital be cause of patient abuse. She was found to have abused a paranoid schizophr enic patient by cutting his hair and attempting to shave his beard while restra ining the patient, a fter the patient had repeatedly objected and resisted. Here, Ms. Taylor is not appealing the finding of patient abuse. Rather, she only appeals the penalty of removal as unreasonable.Upon removal from the VAMC, Ms. Taylor appealed to the Board. In its initial decision, the Board mitigated her penalty to a fifteen-day suspension, stating that the agency failed to properly weigh the relevant factors as to penalt y

. Taylor v. Dep’t of Veterans Affairs , No. AT-0752-04-0254-I-1 (M. S.P.B. Aug. 11, 2004) (“ Taylor I ”). The agency then petitioned for review of the initial decis ion. The petition was granted. In its final decis ion, the Board overturned the initial decision and sustained the removal penalty of the agency , reasoning that t he agency had properly weighed the relevant factors. Taylor v. Dep’t Veterans Affairs , 98 M.S.P.R. 337 (2005) (“ Taylor II ”). B e caus e we agree with the final dec isio n of the Board that the agency properly weighed the relevant factors and that the penalty was not unreasonable, we affirm

. I. Laureen Taylor worked as a psychiatric nurs e at the VAMC in B iloxi, Mississippi. She had worked for the Veterans Administr a tion for seventeen y ears and had no pr ior record of discipline. On the evening of S eptember 23, 2003, Ms. Ta ylor was making her rounds dis pensing medication to patients. Ms. Trentcosta, a nursing assist ant who had been with the VAMC f o r approximately one and a half months, was making her rounds offering haircuts and shaves to patients who requested them. 1 At some point while Ms. Taylor and Ms. Trentcosta were making thei r respective rounds, Ms. Taylor told the patient in question, Mr. S, 2 that he needed a haircut and that she was going to cut his

1 A barber shop was located on the premises of the medical center. Patients were able to obtain haircuts and s haves from the barber shop for a fee. It is undisputed that the psychiatric patient in question, Mr. S, cou l d afford a haircut and shave from the barber shop, such that lack of financia l means was not the reason he had not obtained a haircut and sh ave from the barber shop.

2 To protect the confidentiality of t he patient, his name is being abbreviated.

05-3187 2hair, according to her testimony before the VAMC in vestigativ e panel. 3 Ms. Taylor testified before the agency invest igative pane l that he responded that he did not want a haircut. 4 Ms. Taylor admitted to the agenc y panel that she nonet heless proceeded to cut his hair. 5 Upon completion of the haircut, Ms. Taylor began to shave Mr. S’ beard. At this point, he verbally object ed and physica lly resisted by “rolling off,” according t o Ms. Taylor’s agency panel testimony. 6 Ms. Trentcosta then held the wheel of his wheelchair to prevent him from l eav ing, as Ms. Taylor testified. Ms. Taylor related to the agenc y panel that she then said to Ms. Trentcosta, “Lisa, don’t hurt yourself because y ou know you are pregnant. . . . [G]o get B r uce [Kinnemore ].” Ms. Trentcosta did so. When Ms. Trentcosta returned with Mr. Kinnemore, another nursing assistant, Mr. S again stated that he did not want his bear d shaved, as Ms. Taylor testified before the agency panel. At that point, Mr. Kinnemore and Ms. Tr entc o sta “[held] his hand and his wheel t o keep [him] from leaving out,” according to Ms. Taylor’s testimony to the

3 There is s o me disput e as to whether it was Ms. Trentcosta’s idea or Ms. Taylor’s idea to cut Mr. S’ hair. Regardle ss, Ms. Taylor admitted to the agency panel that she was the one who actually cut hi s hair and attempted to shave his beard.

4 The number of times that Mr. S said that he did not want a haircut is disputed. Ms. Taylor asserts that Mr. S sa id that he did not want a haircut only once, immediately prior to her giving him a haircut. Yet Mr. S stated that he said that he did not want a haircut twice prior to Ms. Ta ylor’s beginning the haircut and that he “struggled.” Nonetheless, Ms. Ta ylor does admit that, after she told him that she wa s going to cut his hair and prio r to her beginning the hair c ut, Mr. S did state that he did not want a haircut.

5 Ms. Taylor testified that, during t he haircut, Mr. S did not again protest. Mr. S testifi ed that he did furt her protest duri ng the haircut.

6 “Rolling off” appears to mean “roll his [w heel] c hair to move out – to leave.”

05-3187 3agency panel. Immediately ther eafte r, Mr. S again physically resisted. 7 In th e words of Ms. Taylor, “that’s when he really started to fussing and cuss ing. ” Accor d ing to Mr. Kinnemore’s testimony to the investigative panel, at this poi nt Mr. Kinnemor e “put [his] hands on [Mr. S’] wrists” and “held [Mr. S’] w r is ts.” Then Mr. S “started kicking and then started saying no, no, no, and then we stopped,” accord ing to Mr. Kinnemore’s testimony before the agency panel. Ms. Taylor then ceased attempting to shave Mr. S’ beard. On September 25, two days la ter, Mr. S complained about this incident to his social worker, Alma Jimerson. Ms. Jimerson then made a fo rmal Report of Complaint. An internal investigation by the Administ rative Board of Investigation ensued, led by Darlene Bellais, RN, the Compliance Officer and Chairperson of the Board of Investigation. Before the in vestigative panel, Ms. Taylor was asked, “Laureen, if you could do anything differently, what would it have been that night?” She responded that she “didn’t think nothing of it” and that she “cared enough to help him on numerous occasions t o help him clean up.” 8 When asked whether she would like to make a final statement, she replied that she was “sadly hurting that [s he] w a s accused of patient abuse” and that she “tried to do the best [she] can to help a person, a patient . . . .”

7 Mr. S testified before the agency panel that he did not want to physically resist too much or too strenuously bec ause of Ms. Trentcost a’s presence and her pregnant state. Ms. Trentcosta was eight mont hs pregnant at the time of the incident

. Mr. S stated that “she’ s pregnant and I didn’t w ant to wrestle too much with the woman.”

8 Ms. Taylor testified before the ag ency panel that on a prior occas i on, she had “cut [Mr. S’] hair” and “clean[ed] him up” prior to one of his doctor’s appointments. That testi m ony notwithstandin g , another nurse, K a ren Gillette, Associate Nurse Executive for Extended Care, testified that it was “common knowledge” that Mr. S did not like to have his hair cut.

05-3187 4The panel then propos ed removal as the app ropriate penalty, based upon a table of penalty range from reprimand to removal. In a report entitled “ Douglas Factors,” the Deciding Official, Julie Catellier, LPN, Director of the C enter, assessed the Douglas factors to determine whether the proposed penalty of removal would be reasonable. Two factors in particular had em erged as the most significant to the panel and in the Douglas F a ctors report: the nature and seriousness of the offense and the restraint of Mr. S even after his repeated objection. Based upon this weighing of the Doug la s factors, she found the penalty of removal appropriate. The agency thus removed Ms. Taylor from her position by a separate dec ision letter, al so signed b y Ms. Catellier.
II. This Court must affirm a Board decision unless it is arbitrary, capricious , an abuse of discretion, or otherwise not in accordance with law; obtained without procedures required by law; or unsupported by substantia l ev idence. 5 U.S.C. § 7703(c). In determining the appropriatenes s of a penalty , an agency must weigh the factors outl i ned in Douglas v. Veterans Admin. , 5 M.S.P.R. 280 (1981) . When, as here, the Board sustains the agency ’ s charge, the agency ’ s decision may only be r e viewed t o determine whether the agency proper ly weighed the relevant Douglas factors and whether the penalty was reasonable ba sed on its weighing of factors. Cantu v. Dep’t of the Treasury , 88 M.S.P.R. 253 (2001)

. The first Douglas factor is the “nature and se rious ness of the offense.” 5 M.S.P.R. at 305. In her Douglas Factors report, Ms. Catellie r stated that the “alleged offense is very serious. Ms. Taylor’s assa ultive behavior toward the patient[ ] created an atmosphere the patient perceived as host ile. Ms. Taylor’s inappropriat e behavior

05-3187 5caused undue stress to a patient who reli ed on h e r for compassion and professional service.” The record does not s upport a finding that Ms. Catellier erred in determining that this offense was “very serious.” Indeed, the restraint of Mr. S, especially after he had repeatedly objected and resisted, strongly supports a findi ng that the offense wa s “very serious.” Thus, the nature and seriousness of the offense weighs in favor of a strong penalty. Another Douglas factor of particular relev a nce is the “consistency of the penalt y with any applicable agency table of penalties.” 5 M.S.P.R. at 305. For a first offense of patient abuse, the table of penalties provides for a penalty ranging from reprimand to removal. Moreover, Memorandum No. 00-55- 00, titled “Protection of Pat i ents from Abuse,” emphasizes that “ [t]he Department of Veter a ns Affairs has no t o lerance f o r mistreatment or ab use of p a tients b y its emplo y ees ” (emphasis in original). 9 Indeed, this Memorandum informs employees that “[i]f patient abuse is proven, appropriate disciplinary acti on will be taken, including po s s ible dismissal from employment.” 10 Ms. Taylor dispu t es the statement by Ms. Catellier in Ms. Catellier’s assessment of the Douglas f a ctors that Ms. Taylor “fails t o acknowledge any wrongdoing.” Ms. Taylor argues that consideration of this alleg e d ly erroneo us fact in the weighing of the Douglas factors unfairly skewed the Douglas analysis. Yet whether or not Ms. Taylor ’s s t atements to the pane l showed s u ch a failure, the other factors alone, in particular the seriousness of the offense, supported removal as an appropriate

9 The Definitions section of this Memorandum states: “Patient abuse includes mental, physical, sexual, and ver bal abuse, such as the followin g : (a) any action or behavior that conflicts with patient ’s right s, identified in VA regulations 38 CF R § 17.34a; . . . (c) willful violations of a patient’s privacy; . . . (e) willful physica l injury.”

10 Ms. Taylor admitted that she is aware of this Memorandum.

05-3187 6penalty, es pecially giv en the zero tolerance policy for patient abuse and the notice to employees of the definition of patient abuse and the possible penalty of removal. Thus, the penalty of removal of Ms. Taylor for patient abuse was consistent with the possible range of penalties for the offense, given the facts of this case.
III. Because we agree with final decis ion of the Board that the Douglas factors were properly weighed, in particu lar the nature and seriousness of the offense of patient abuse, we affirm

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