20

Thomas); AF, Tab 25, Agency Exhibit Tab 10 at ¥ 14, (Declaration of E. Walton).
Further, it is undisputed that on August 20, 2014, he informed his supervisors that
“the allegation that [Kennedy] transported the patient to a crack house is
unsubstantiated.”!? AF, Tab 6, Agency File Part 1 at 54, (Issue Brief dated Aug.
20, 2014). The appellant testified before the AIB on August 26, 2014. AF, Tab
14, Agency File Part 8 at 112, (AIB Testimony of J. Talton). During the AIB
investigation, the appellant testified that, during the August 19, 2014 briefing
with the officers, he learned additional facts that warranted a charge of patient
abuse against Mr. Kennedy. Jd. Specifically, he testified that he was informed
that the rehab patient was not only brought to the crack house, but also left at the
crack house by Mr. Kennedy and subsequently dismissed from the rehabilitation
program. /d. at 79. Thus, he testified that the “patient’s care was altered,” the
“course of treatment was altered because he didn’t bring him back,” and “having
this information [was] going to make this case ironclad.” Jd. at 78-80.

The undisputed information in the record shows that on August 20", the
appellant represented to his supervisors that the Kennedy case was
unsubstantiated, but, by his own admission, he knew on August 19" that the case
against Mr. Kennedy was “ironclad.” Therefore, the information he provided in
his Issue Brief on August 20" was clearly inaccurate in that the Kennedy case
could not be both unsubstantiated and ironclad at the same time. In light of this
evidence, I find that the agency proved that the appellant failed to provide
appropriate information to his supervisors on August 20, 2014. AF, Tab 14,
Agency File Part 8 at 111, (AIB Testimony of J. Talton). Thus, I find that the

B Additionally, there is evidence in the record that the appellant failed to provide
accurate information concerning Mr. Kennedy’s assignment following the crack house
allegation. The Issue Brief that the appellant provided to his supervisor stated that Mr.
Kennedy was immediately removed from his assignment as a Peer Support Specialist.
The record indicates, however, that Mr. Kennedy’s assignment was not changed until
July 2013, when he was reassigned to the chaplain’s service. See AF, Tab 6, Agency
File Part 1 at 8, (AIB Report).


14

necessarily depends on the circumstances of each case. Borninkhof v.
Department of Justice, 5 M.S.P.R. 77, 83-87 (1981).2 With regard to the
information provided to the appellant concerning the Kennedy investigation, for
the following reasons, I find the sworn testimony of Officer Thomas, Chief
Walton, and Ms. Winston and supporting documentation more persuasive than the
testimony of the appellant. The testimony provided by Chief Walton and Officer
Thomas before the AIB is consistent in that they provided detailed information
concerning the nature of the events surrounding the Kennedy investigation.
Additionally, the sworn declarations by Chief Walton and Officer Thomas that
were submitted as part of the agency’s closing brief reiterates their testimony
before the AIB and pinpoints what information was shared with the appellant
regarding the Kennedy and Brooks cases and when that information was shared
with the appellant. It was sufficient for a reasonable person to conclude that the
initiation of discipline was appropriate. Even the transporting of a rehab patient
to the crack house would in itself constitute a sufficient reason to initiate
disciplinary proceedings against Mr. Kennedy. Indeed, such activity is totally
inconsistent with the mission of the agency to serve the interests of those who
have served our country. Also, Ms. Winston’s testimony and documentation
corroborates the seriousness of the events described in specification one. It is

incredible to believe that in light of these briefings as provided in the

8 Under the Board’s Borninkhof decision, the following factors affect the weight to be
accorded to hearsay evidence: (1) the availability of persons with firsthand knowledge
to testify at the hearing; (2) whether the statements of the out-of-court declarants were
signed or in affidavit form, and whether anyone witnessed the signing; (3) the agency’s
explanation for failing to obtain signed or sworn statements; (4) whether declarants
were disinterested witnesses to the events, and whether the statements were routinely
made; (5) consistency of declarants’ accounts with other information in the case,
internal consistency, and their consistency with each other; (6) whether corroboration
for statements can otherwise be found in the agency record; (7) the absence of
contradictory evidence; (8) credibility of declarant when he made the statement
attributed to him. 5 M.S.P.R. at 87.


24

Finally, the appellant asserts a violation of Merit System Principle 8(a)
(“Employees should be protected against arbitrary action, personal favoritism, or
coercion for partisan political purposes.”), arguing that the agency was under
considerable pressure from Congress to fire subpar SES Members. AF, Tab 27, at
15-16, (Talton Closing). In support of this argument, the appellant cited to public
statements from Members of Congress, including one who specifically named the
appellant. /d. There is no evidence, however, that Deputy Secretary Gibson was
coerced to remove the appellant, and his unrebutted testimony expressly denies
such coercion.'© AF, Tab 24, Agency Exhibit Tab 8 at § 15, (Declaration of S.
Gibson). Moreover, there is no evidence that any of the political pressure placed
on the VA by Congress to fix issues garnering national media attention was
partisan political pressure. Indeed, the concern that should have arisen in the
appellant when he learned that a Veteran rehab patient was taken by a VA
employee to a crack house transcends partisan political divisions. Therefore, I
find that the appellant has failed to establish this affirmative defense.

Violation of Due Process

The appellant asserts that the agency failed to meaningfully consider his
reply to the proposal notice, that the deciding official had “pre-decided” his
removal and that such failure violated his due process rights. AF, Tab 27 at 14,
(Talton Closing). To prove a claim that the agency denied the appellant due
process, the appellant must establish that the agency denied him prior notice or
denied him a meaningful opportunity to reply based on the timing, place, and
circumstances of the procedures used. Homar vy. Gilbert, 520 U.S. 924, 930
(1997).

'© In his sworn statement, Deputy Secretary Gibson testified that he “was diligent about
not discussing the specifics of [the appellant’s] case with the media or Congressional
representatives until [he] had issued a final decision,” and he “felt no pressure from the
media or Congress to take a particular action against” the appellant. Jd.


and CAVHCS’s human resources (HR) staff for action. AF, Tab 14, Agency File
Part 8 at 72:14-20, (AIB Testimony of J. Talton); Jd. at 208: 4-13, (AIB
Testimony of C. Thomas). Officer Thomas asserted that the May briefing lasted
between 20 to 25 minutes. /d. at 210:12-13, (AIB Testimony of C. Thomas); AF,
Tab 25, Agency Exhibit Tab 9 at J 11, (Declaration of C. Thomas).

Subsequently, on May 15, 2013, the case file was referred to Employee
Relations and Labor Relations (ER/LR) Specialist Kimberly Elston. AF, Tab 10,
Agency File Part 4 at 80, (E-mail from K. Elston to R. Tremaine). On May 22,
2013, Ms. Elston referred the matter to Brenda Winston, Chief Quality
Management (QM), for a QM review.” Jd.; AF, Tab 15, Agency File Part 9 at
379, (AIB Testimony of B. Winston). Ms. Winston determined that there was
sufficient evidence to take action against Mr. Kennedy without an AIB but if HR
or the appellant needed more evidence then an AIB should be convened. Jd. Ms.
Winston informed Ms. Elston of her determination in July 2013. Notwithstanding
Ms. Winston’s conclusion and recommendation, however, no action was initiated
against Mr. Kennedy for patient abuse related to the alleged crack house incident
and no AIB was convened. See AF, Tab 6, Agency File Part 1 at 12-14, (AIB
Report).

Although not officially reassigned, on July 30, 2013, Mr. Kennedy’s
assignment was changed from performing Peer Support Specialist duties to
working with the chaplain. Jd. at 8. Several e-mails were exchanged among
CAVHCS HR personnel during the summer and early fall of 2013 as the case was
shuffled among HR personnel, but no disciplinary action was ever initiated

against Mr. Kennedy.’ After observing Mr. Kennedy at CAVHCS facility

2A QM review is the process by which the agency determines if there is sufficient
evidence to conduct an AIB. AF, Tab 15, Agency File Part 9 at 379, (AIB Testimony of
B. Winston).

> Dr. Jessaka Fife, the Acting Associate Chief of Staff (ACOS), for Mental Health,
followed up with Ms. Elston on October 24, 2013 by E-mail, asking what the status of


21

agency proved specification two by preponderant evidence. Charge two is
SUSTAINED.

Affirmative Defenses

The appellant raised the following affirmative defenses: harmful error,
violations of the Merit Systems Principles, violation of due process, and that the
deciding official lacked the authority to effectuate his removal. The appellant has
the burden of proving his affirmative defenses by a preponderance of the
evidence. 5 C.F.R. § 1210.18(c).

Harmful Error

In support of his harmful procedural error claim, the appellant argues that
the agency misrepresented or ignored his testimony and the testimony of other
credible witnesses before the AIB; the AIB lacked impartiality/objectivity and
exhibited bias in its conclusions; the AIB conclusions exhibited gaps in the
investigative findings; the AIB postulated conclusions for which there was no
evidentiary or testimonial basis; and the AIB fabricated its findings. See AF, Tab
27 at 9-11. (Talton Closing). To prove harmful error, the appellant must prove
that the agency committed an error in the application of its procedures that is
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 5 C.F.R. §
1201.56(c)(3). The burden is upon the appellant to show that the agency
committed an error and that the error was harmful, i.e., that it caused substantial
prejudice to his rights. To the extent the AIB investigation contained
inconsistencies or error or bias, I have conducted my independent review of the
testimony and documents contained in the file. See Jackson v. Veterans
Administration, 768 F.2d 1325, 1329 (Fed. Cir. 1985) (holding that the Board has
de novo authority to adjudicate facts of a removal action). Moreover, based on
my extensive review of the record, I can detect no harmful error and find his

attack on the AIB investigation without merit. None of the evidence that the


27

Concerning the specifications under charge one, his review of the evidence led
him to conclude that CAVHCS police had notified the appellant about the rehab
patient’s claims with respect to Mr. Kennedy, performed a complete
investigation, and provided the appellant with a briefing about the serious nature
of the investigative findings. Further, Deputy Secretary Gibson concluded that
the appellant neither took appropriate action himself nor ensured that his
leadership team took appropriate action to address “what appeared to be a clear
case of patient abuse and misconduct.” Jd. at § 8. According to Deputy Secretary
Gibson, it was clear that the appellant was aware of the seriousness of the
misconduct uncovered by the police and was provided with reminders regarding
the status of the Kennedy case, however, he failed to do what a reasonable
medical center director should have done under the circumstances which is to act.
Id. Regarding Mr. Brooks, Deputy Secretary Gibson determined that Mr. Brooks
was involved in a motor vehicle accident while using a government vehicle, and
misled agency officials about the “facts surrounding the accident.” AF Tab 24,
Agency Exhibit Tab 8 at § 9, (Declaration of S. Gibson). Deputy Secretary
Gibson testified that the Brooks case was “another indication of [the appellant’s]
failure to hold CAVHCS employees accountable for serious misconduct.” Jd.
Therefore, Deputy Secretary Gibson concluded that the appellant failed to
exercise appropriate oversight to ensure timely and appropriate action was taken
in both instances.

With regard to the second charge, Deputy Secretary Gibson testified that
the appellant failed to provide appropriate information to the VISN 7 Network
Director, Charles Sepich, regarding the Kennedy case. Id. at § 10. He testified
that the failure to provide notification of serious patient abuse circumvents the
mission of the agency, and “veterans lose confidence in VA and the quality of
care being provided at VA facilities.” /d. Furthermore, Deputy Secretary Gibson
determined that, had the appellant alerted his supervisor, “Mr. Sepich could have

ensured [he] took the timely and appropriate action he failed to take.” AF Tab


23

Again, the appellant was the Director of CAVHCS, a Member of the SES, and
ultimately responsible for all affairs at CAVHCS. As such, the agency had
placed a significant amount of responsibility on him and expected him to use that
authority for the agency and its mission’s benefit. It does not require training to
understand that when an employee takes a rehab patient to a crack house some
action must be initiated; this merely requires good judgment and common sense.
Moreover, the appellant cites to no request for training that he made and the
agency denied him. Wright v. Federal Aviation Administration, 40 M.S.P.R. 355,
360-62 (1989) (“[T]he Board will find a violation of 2301(b)(7) only when an
appellant can show that, with respect to [his] training, the agency’s action
amounted to an abuse of discretion”). Therefore, I find that the appellant has
failed to establish this as an affirmative defense.

Third, the appellant asserts a violation of Merit System Principle 6
(“Employees should be retained on the basis of adequacy of their performance,
inadequate performance should be corrected, and employees should be separated
who cannot or will not improve their performance to meet required standards”),
arguing that the agency is actually removing him for his performance and not
misconduct. AF, Tab 27 at 14-15, (Talton Closing). It is well-settled, however,
that an agency may choose to charge misconduct even where the nucleus of
operative fact may also lend itself to an adverse action for performance
deficiencies. See, e.g., Abrams v. Social Security Administration, 703 F.3d 538,
544 (Fed. Cir. 2012). Moreover, neglect of duty has been accepted by the Board
as a reason to remove an employee from the SES under the Board’s new
regulations and the agency’s own guidelines.’ Therefore, I find that the

appellant has failed to establish this as an affirmative defense.

1s “Neglect of Duty” is defined by the agency’s guidelines as the “failure to provide
appropriate oversight, supervision, or control over matters or personnel that are
assigned to or are the responsibility of the Senior Executive.” AF, Tab 17, Agency File
Part 11 at 46.


18

Further, I find that it was the appellant’s duty to ensure that timely and
appropriate administrative action was taken against Mr. Brooks, and it is
uncontested that no action was taken for over 15 months after the appellant
became aware of the Brooks case. Thus, I find that the agency proved that the
appellant failed to exercise appropriate oversight to ensure that timely and
appropriate action was taken against Mr. Brooks and that the agency proved

specification two by preponderant evidence. Charge one is SUSTAINED.

Charge Two: Failure to Provide Appropriate Information _to Supervisor

(Specification One)

The second charge provided in the notice of proposed removal is titled

failure to provide appropriate information to supervisor with two supporting
specifications. Specification one provides:

On or about March 8, 2013, you became aware of serious allegations
that a CAVHCS employee facilitated the drug use of a Veteran
patient being treated for substance abuse by taking him to a location
known for illegal drug use and distribution; misused a government
vehicle for personal benefit; submitted an inappropriate request for
overtime compensation and engaged in inappropriate financial
transactions with Veteran patients. Although you acknowledged that
you should have made your supervisor aware of these allegations,
you failed to do so.

AF, Tab 17 at 32-33.

In order to prove the second charge, the agency must show that the
appellant was aware of the requirement to provide appropriate information to his
supervisor and he failed to do so. Here, the appellant admits that he never
informed his supervisor of the Kennedy case. AF, Tab 5 at 8, (Talton Appeal
Narrative). Further, the agency submitted testimony from his supervisor, Charles
Sepich, that he first learned of the Kennedy case from the news article. AF, Tab
23, Agency Exhibit Tab 7 at 4.10, (Declaration of C. Sepich). The agency
submitted its /ON Guide to VHA Issue Briefs, which provides a list of

“notification triggers” that should be reported as soon as possible and to keep


10

Procedural History
After the publication of the Montgomery Advertiser article on August 16,

2013, regarding the alleged misconduct of Mr. Kennedy, an investigation into the
incident and other incidents that had failed to be properly addressed by CAVHCS
management was initiated. On August 21, 2014, the appellant was placed on
authorized absence pending the findings of the AIB. AF, Tab 6, Agency File at 4,
(Direct Order for Administrative Absence). An AIB was convened on August 24,
2014. Jd. at 6. On August 26-27, 2014, the AIB took sworn statements from the
appellant, his Chief of Staff, Officer Thomas, Chief Walton and six HR
specialists involved in the management of the incidents. Jd. The AIB found
neglect and mismanagement by the appellant, Mr. Robinson and several members
of the HR staff. Jd. at 20-21. Regarding the appellant, the AIB specifically
found that, although he was made aware of both instances of alleged employee
misconduct, he failed to ensure that appropriate and timely action was taken in
the matters.

On October 3, 2014, the Deputy Secretary of the Department of Veterans
Affairs, Sloan Gibson, proposed the appellant’s removal from Federal service
based on two charges: 1) neglect of duty; and 2) failing to provide appropriate
information to his supervisor. AF, Tab 1 at 6, Notice of Proposed Removal. The
appellant replied in writing on October 14, 2014. AF Tab 5 at 64, (Response to
Proposed Removal). On October 24, 2014, Deputy Secretary Gibson sustained
the charges and removed the appellant from Federal service. AF, Tab 1 at 5.

This appeal followed.

ANALYSIS AND FINDINGS
Charge One: Neglect of Duty (Specification One)

The first charge contained in the notice of proposed removal dated October
3, 2014, is labeled neglect of duty with two supporting specifications.

Specification one provides:


30

(2003). Here, the appellant’s failure to adequately monitor the Kennedy and
Brooks cases and to make certain that they faced appropriate disciplinary action
is a dereliction of duty that cannot be minimized. Indeed, CAVHCS’s failure to
take immediate action against these two employees, particularly Mr. Kennedy,
damages the very core of the agency’s mission to take care of our nation’s
Veterans. The agency’s mission is: “To fulfill President Lincoln's promise ‘To
care for him who shall have borne the battle, and for his widow, and his orphan’
by serving and honoring the men and women who are America’s Veterans.”
Paramount to achieving this mission is patient safety. It is difficult to conjure a
situation more diametrically opposed to the VA’s mission of honoring and caring
for our Veterans, and the appellant’s failure to appropriately and expeditiously
address this situation weighs heavily in favor of the Deputy Secretary’s decision
to remove the appellant.

While there appears to be failure throughout the entire process after the
investigation, the appellant’s assignment as an SES employee within the VA
required him to accept the leadership role and responsibility to ensure that the
Veterans served at CAVHCS are provided the care that the mission mandates.
While such evidence highlights the difficulty of the appellant’s position, it fails
to excuse the utter lack of attention to a significant problem employee whose
misconduct strikes at the core of the agency’s mission. If CAVHCS’s processes
were broken, then the appellant should have endeavored to fix them. Because he
did not, he, as CAVHCS’s Director, is ultimately responsible for the
consequences of his facility’s state of ill-repair. The sustained charges
demonstrate that the appellant failed to exercise the responsibility and trust
placed in him as Medical Director. The appellant, as a Member of the Senior
Executive Service, occupied the pinnacle of the Federal workforce. Simply put,
negative media attention should not be required for a Member of the SES to
ensure appropriate disciplinary action is taken especially in light of the proven

facts of this case. The responsibility and trust placed in the SES makes the


appellant for much of 2014. See AF, Tab 6, Agency File Part 1 at 18-19, (AIB
Report). During this time, Ms. Winston became increasingly frustrated with HR
because of their failure to initiate any action or to convene an AIB. AF, Tab 15,
Agency File Part 9 at 382, (AIB Testimony of B. Winston). According to an e-
mail provided by Ms. Winston to the AIB, on March 28, 2014, Ms. Winston
briefed the appellant on the details of the crack house incident, the status of the
matter, and her findings related to her QM review. AF, Tab 13, Agency File Part
7 at 17, (E-mail from B. Winston on Sept. 11, 2014). Although there is evidence
that Ms. Winston made the appellant aware of the fact that no action had been
taken against Mr. Kennedy - over a year after the incident allegedly occurred -
the matter continued to remain dormant. On August 16, 2014, an article was
published in the Montgomery Advertiser, a local newspaper, regarding Mr.
Kennedy’s alleged misconduct and the failure of CAVHCS to act. AF, Tab 6,
Agency File Part 1 at 52-53, (Montgomery Advertiser Article). Following the
publication of the article, the appellant showed a heightened interest in the
matter.

On August 19, 2014, the appellant met with Officer Thomas and Chief
Walton regarding the Kennedy case. AF, Tab 25, Agency Exhibit Tab 9 at 4 15,
(Declaration of C. Thomas); AF, Tab 25, Agency Exhibit Tab 10 at 14,
(Declaration of C. Walton). On August 29, 2014, CAVHCS issued a notice of
proposed removal to Mr. Kennedy.’ AF, Tab 14, Agency File Part 8 at 30, (Notice
of Proposed Removal). On October 10, 2014, Mr. Kennedy was removed from
Federal service, 19 months after the alleged incident occurred. AF, Tab 19,
Agency File Proposed Exhibits at 135, (Removal Decision). The appellant’s
inattention to the Kennedy case became the basis for his removal from Federal

service as detailed below.

° At that time, the appellant had already been placed on authorized absence.


roughly three to four months after the alleged crack house incident, Officer
Thomas inquired with Mr. Robinson as to why no action was being taken against
the employee. AF, Tab 14, Agency File Part 8 at 216:6-23, 218:5-11, 32:4-9,
(AIB Testimony of C. Thomas). Officer Thomas and Chief Walton also
followed-up with the appellant after speaking with Mr. Robinson to inform the
appellant that no action had been taken by HR. /d. at 219:13-19. As in May of
2013, the appellant told Officer Thomas that he would refer the issue to Mr.
Robinson and HR to handle. /d. at 219:15-18. A few months later, in November
2013, Officer Thomas once again approached the appellant with his concerns
regarding the handling of Mr. Kennedy’s case. Jd. at 221:20-23; AF, Tab 25,
Agency Exhibit Tab 9 at § 14, (Declaration of C. Thomas). Additionally, on
November 27, 2013, Mr. Kennedy inquired into the status of his case with HR,
and HR determined that there was no information that could be shared with him
at that time. AF, Tab 12, Agency File Part 6 at 83, (E-mail from J. Kennedy
dated Nov. 27, 2013). Mr. Kennedy’s inquiry sparked a renewed interest among
the HR personnel regarding his case, and the issue was immediately elevated to
Dr. Fife.* Jd. at 81, (E-mail from J. Fife dated Nov. 27, 2013). Dr. Fife stated in
her E-mail to several HR staff, including Ms. Elston, that she hopes the matter
can be resolved quickly, but “the fact that he’s been left in the job, and he has
clearly violated rules, has been the problem.” Jd.

Despite Dr. Fife’s concern, the matter continued to be shuffled among HR

personnel without any action being initiated by HR, Mr. Robinson or the

the Kennedy case was and expressing her concern that nothing had been done on the
matter despite the fact that there were concerns that he was potentially selling drugs on
campus. AF, Tab 12, Agency File Part 6 at 77-78, (E-mail from Dr. Fife on Oct. 24,
2013).

‘Dr. Fife’s predecessor, Dr. Arthur Soule, was notified of the Kennedy case in April of
2013, and demanded action. AF, Tab 10, Agency File Part 4 at 83, (E-mail from Dr.
Soule dated April 2, 2013) (stating there “is [a] credible accusation that [Kennedy] is
causing potential harm to Veterans and embarrassment to the institution”).


19

upper management apprised of the situation “often and early.” AF, Tab 19 at
114, (Agency Proposed Exhibits and Witness List). Criminal activity, suicide
gestures,” and events with potential negative media coverage at the facility, all
of which trigger the reporting requirement, were presented by the circumstances
surrounding the Kennedy case. Jd. In light of this evidence and the appellant’s
admission that he did not notify his supervisor of the events in specification one,
I find that the agency proved specification one by preponderant evidence. See
Cole v. Department of Air Force, 120 M.S.P.R. 640, 644 (2014)(holding that the
appellant's admission to a charge can suffice as proof of the charge without

additional proof from the agency).

Charge Two: Failure _to Provide Appropriate Information to Supervisor

(Specification Two)

Specification two of charge two provides:

On August 20, 2014 you sent an Issue Brief to the VISN 7 Network
Director that said “the allegation that the employee transported the
patient to a crack house is unsubstantiated.” However, on August
26, 2014 you testified to VA investigators that after your briefing
with Police Detective Thomas on August 19, 2014, you believed
there was enough evidence to substantiate the allegation and that the
case against the subject was now “ironclad.”

AF, Tab 17 at 32-33.

This specification involves whether the appellant provided accurate

information about the Kennedy case when he submitted his Issue Brief on August
20, 2014, to his supervisors. It is undisputed that the appellant met for a briefing
with Officer Thomas and Chief Walton on August 19, 2014, after the publication
of the news article. AF, Tab 26, Agency Exhibit Tab 9 at J 15, (Declaration of C.

” The rehab patient in the Kennedy case told Officer Thomas that he was contemplating
suicide shortly after he was dismissed from the drug rehabilitation program. AF, Tab
14, Agency File Part 8 at 233, (AIB Testimony of C. Thomas). The record shows that
the rehab patient was subsequently readmitted into CAVHCS’s substance abuse
program. Jd. at 233:20-22.


on five to seven occasions, but he did not know the visits were related to the VA
and he was not part of any VA follow-up program). In June 2013, the appellant
was fully briefed on the accident and Mr. Brooks’ alleged cover-up. AF, Tab 25,
Exhibit Tab 9 at § 19, (Declaration of C. Thomas). Officer Thomas stated that he
requested status updates from HR and the appellant on the Brooks case
approximately three to four times. Jd. at J 21.

On October 25, 2013, the appellant requested information on removing Mr.
Brooks from a position that required the use of a government vehicle and asked if
Mr. Brooks could be required to pay for the damage to the vehicle. AF, Tab 14,
Agency File 11, (E-mail from J. Talton dated Oct. 25, 2013). On October 28,
2013, the appellant requested that Mr. Robinson and HR speak with Officer
Thomas, determine a course of action and apprise him of the results. Jd. at 10,
(E-mail from J. Talton on Oct. 28, 2013).

Although Mr. Brooks was initially prohibited from performing
driving/transportation duties following the investigation into the accident, in
August of 2013, he was notified that he could resume his driving duties. AF, Tab
8, Agency File Tab 2 at 62, (Issue Brief dated Aug. 20, 2014). Like the Kennedy
case, this case was shuffled among HR personnel for much of 2013. See AF, Tab
8, Agency File Tab 2 at 61-62, (Issue Brief dated Aug. 20, 2014) (timeline of the
actions taken by CAVHCS personnel in response to the alleged misconduct).
During this time, several individuals within HR debated as to whether CAVHCS
was barred from taking action against Mr. Brooks because they failed to act in a
timely manner. Jd. The Brooks case sat dormant until August 2014, despite
Officer Thomas informing the appellant that no action had been taken against Mr.
Brooks in the fall of 2013. AF, Tab 14, Agency File Part 8 at 222:4-9, (AIB
Testimony of C. Thomas). Mr. Brooks was proposed for removal from
employment with CAVHCS on October 15, 2014. AF, Tab 19, Agency File
Proposed Exhibits at 140, (Notice of Proposed Removal).


25

A review of the decision letter yields that Deputy Secretary Gibson did
read the appellant’s reply and considered, among other mitigating issues, the
leadership challenges the appellant faced at CAVHCS. AF, Tab 17, Agency File
Part 11 at 6; see Franks v. Department of Air Force, 22 M.S.P.R. 502, 505
(1984). Furthermore, Deputy Secretary Gibson’s unrebutted testimony indicated
that he considered the appellant’s “years of service, past work record, and his
written response.” AF, Tab 24, Agency Exhibit Tab 8 at 47, (Declaration of S.
Gibson). While Deputy Secretary Gibson may have had knowledge of the facts
concerning this case prior to his decision, it is well-settled that there is no general
proscription of appointing a deciding official who is familiar with the facts of the
case and who has expressed a predisposition contrary to the appellant’s interests.
Beatty v. Department of Housing & Urban Development, 20 M.S.P.R. 436, 438
(1984), aff'd, 765 F.2d (Fed. Cir. 1985) (Table). There is simply no evidence that
Deputy Secretary Gibson pre-decided this matter. Therefore, I find that the
appellant has failed to establish this affirmative defense.

Deciding Official Lacked Authority

The appellant argues that the authority under which he was removed
empowers only the Secretary of the VA to remove VA Members of the SES.!”
See AF, Tab 30. Because the Deputy Secretary removed the appellant and lacked
the authority to do so, the appellant asserts his removal is contrary to law. Id.
Pursuant to 38 U.S.C. § 512, however, Congress provided the Secretary of the VA
with the authority to delegate this decisional authority, and the Secretary of the
VA, Robert McDonald, expressly and unequivocally delegated his authority to
remove VA Members of the SES under 38 U.S.C. § 713 to the Deputy Secretary.
AF, Tab 17, Part 11 at 43. Indeed, when Congress seeks to limit delegable
authority, it expressly does so. See, e.g., 10 U.S.C. § 1609 (limiting delegation

” Despite the fact that the appellant submitted this argument past the close of the record
deadline, I considered it nonetheless.


UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ATLANTA REGIONAL OFFICE

JAMES R. TALTON, DOCKET NUMBER
Appellant, AT-0707-15-0094-J-1
v.
DEPARTMENT OF VETERANS DATE: November 19, 2014
AFFAIRS,
Agency.

James R. Talton, Wetumpka, Alabama, pro se.

Gia M. Chemsian, Esquire, Washington, D.C., for the agency.

BEFORE
Thomas J. Lanphear
Chief Administrative Judge

FINAL DECISION

On October 30, 2014, the appellant, James Talton, SES-0670, Director,

Central Alabama Veterans Administration (agency or VA) Healthcare System

(CAVHCS), timely filed this appeal challenging his removal from Federal
service, effective October 24, 2014. Appeal File (AF), Tab 1. The Board has
jurisdiction over this appeal. 38 U.S.C. § 713(e); 5 U.S.C. § 7701(b)(1). The

appellant waived his right to a hearing and thus, this decision is based on the

parties’ written submissions. AF, Tab 20. For the reasons detailed below, the

agency’s action is AFFIRMED.


12

Chief Walton testified that, during the briefing on May 14, 2013, he and
Officer Thomas advised the appellant that the investigation was completed, the
details of the investigation, and who had been contacted. AF, Tab 26, Agency
Exhibit Tab 10 at 9 8, (Declaration of E. Walton). Specifically, Chief Walton
stated that they “provided a detailed account of [Officer Thomas’s] findings
concerning patient abuse, including: (1) the fact that Joseph Kennedy took the
patient to a crack house, dropped him off there, and did not return to pick him
[up], resulting in the Veteran patient being discharged from his treatment
program; (2) Joseph Kennedy borrowed and attempted to borrow money from
patients: (3) Joseph Kennedy falsified his overtime claims; and, (4) Joseph
Kennedy misused a government vehicle for his personal benefit.” Jd. According
to Chief Walton, the appellant “appeared to be shocked by the investigative
findings.” Jd. They also informed the appellant that the matter could not be
criminally prosecuted and “that administrative action needed to be taken.” Jd.
Chief Walton further testified that, during the August 19, 2014 meeting, “the
information [they] discussed with [the appellant] about the Joseph Kennedy
case...was the same information that [they] had already provided to [the
appellant] during [their] various briefings on the Joseph Kennedy case.” AF, Tab
26, Agency Exhibit Tab 10 at 14, (Declaration of E. Walton).

It is undisputed that, on June 20, 2013, Ms. Winston emailed Ms. Elston,
HR Employee/Labor Relations Specialist, wherein she stated “[t]here appears to
be sufficient evidence and, with the admission of his own guilt to various
allegations (which violated both policies), Mr. Kennedy’s supervisor has enough
information to take actions without an AIB.” AF, Tab 10 at 93, (E-mail of B.
Winston dated June 20, 2013)(quoted as in original). Subsequently, Ms. Winston
submitted an e-mail to the AIB which discussed her briefing with the appellant on
March 28, 2014, concerning the specific details of the Kennedy case and

expressing her concern over the delays in initiating any action against Mr.


11

On or about May 14, 2013, CAVHCS Police informed you that their
investigation indicated a CAVHCS employee Joseph Kennedy
transported a Veteran patient being treated for substance abuse to a
location known for illegal drug use and distribution; misused a
government vehicle for personal benefit; submitted an inappropriate
request for overtime compensation; and engaged in inappropriate
financial transactions with Veteran patients. After being notified of
this misconduct and despite repeated reminders of the incident, you
failed to exercise appropriate oversight to ensure that timely and
appropriate action was taken against this employee for his
misconduct.

AF, Tab 17 at 32-33.

In support of this specification, the agency has introduced sworn testimony
from relevant witnesses before the AIB, including the appellant, Chief Walton,
Officer Thomas and Ms. Winston. See AF, Tab 14, Agency File Part 8, (AIB
Testimony). Officer Thomas testified that the during the first substantive
meeting on May 14, 2013, he informed the appellant that Mr. Kennedy
transported the patient to a crack house where he obtained drugs and left the
patient at the crack house overnight despite the fact that he called Mr. Kennedy
multiple times.° Officer Thomas also informed the appellant that the patient was
discharged from the rehabilitation program because he was AWOL and tested
positive for drugs. AF, Tab 25, Agency Exhibit Tab 9 at J 11, (Declaration of C.
Thomas). He further testified that the appellant failed to ask him if the allegation
of patient abuse was “substantiated,” but if he had asked this question, Officer
Thomas would have replied “yes.” Jd. According to Officer Thomas, the
briefing lasted approximately 20-25 minutes, and he discussed “what he
uncovered during the course [of his] investigation in detail.” Jd. When they met
in August 2014, Officer Thomas testified that he briefed the appellant again
regarding his findings and continued to express his concerns that no action had

been taken against Mr. Kennedy. /d. at ¥ 15.

® Officer Thomas verified the phones calls by obtaining Mr. Kennedy’s mobile phone.
AF, Tab 14, Agency File Part 8 at 248:11-14, (AIB Testimony of C. Thomas).


32

most appropriate penalty for the sustained charges. Therefore, I find that
disciplinary action is warranted to promote the efficiency of the service and the
penalty of removal is reasonable.

In summary, | find that the agency has proved Charge 1, neglect of duty,
(Specifications 1 and 2) and Charge 2, failure to provide appropriate information
to his supervisor, (Specifications | and 2) by preponderant evidence. I further
find that the appellant’s affirmative defenses and all other assertions are without
merit. Because I find that the penalty imposed by the Deputy Secretary is
reasonable in light of the mission of the agency and the seriousness of the
Charges, the agency’s decision to remove the appellant from Federal service is

AFFIRMED.

FINAL DECISION
The agency’s action is AFFIRMED.

FOR THE BOARD:

Thomas J. Lanphear
Chief Administrative Judge

NOTICE TO APPELLANT
Pursuant to 38 U.S.C. § 713(e)(2), my decision is final, and there is no

right to appeal this decision.


31

appellant’s breach of his duty more egregious than lower-graded employees and,
consequently, renders the decision of the Deputy Secretary to remove him all the
more reasonable.

The appellant’s failure to inform his leadership of these problems only
served to compound these difficulties. Had the appellant kept his leadership
abreast of these situations, they could have properly guided him in the process of
expeditiously addressing and resolving these issues. Although the appellant
contends that he was not fully aware of the allegations until August 2014, this
statement appears to be calculated to justify his lack of action on this matter and
in no way requires an alteration in the action taken by Deputy Secretary Gibson.

Although the appellant requests that the action be mitigated for various
reasons, the Board’s regulations are clear that I do not have the authority to
mitigate the agency’s chosen penalty. 5 C.F.R. § 1210.18(d). Indeed, the
agency’s proof of the charges created a presumption that the removal action was
warranted, and the appellant may only rebut this presumption by showing that the
imposed penalty was “unreasonable under the circumstances of the case.” Id.
The appellant has failed to show that the selected penalty was unreasonable.

The appellant also asserts that no disciplinary action was initiated in a
similarly situated event involving his supervisor, Charles Sepich. AF, Tab 27 at
16, (Talton Closing). I disagree that the situations are similarly situated, as the
employee in the Sepich matter was arrested and there is evidence that the delay
was due to the arrest and prosecution of the employee. See, e.g., Green v. U.S.
Postal Service, 16 M.S.P.R. 203, 204 (1983) (finding an administrative matter
was properly dismissed without prejudice where a criminal investigation on the
same matter was pending). Even if I assume that the situations are similar, I do
not find that it would render the agency’s removal decision to be unreasonable
under the circumstances of this case. As I stated earlier, the seriousness of the
charges at issue are sufficient to warrant a removal decision. I find that Deputy

Secretary Gibson convincingly explained why he determined that removal was the


Brooks Case

The second incident of alleged employee misconduct forming the basis for
this appeal came to light during the AIB inquiry into the handling of the Kennedy
case. The second incident took place on April 22, 2013 and involves another VA
employee, Daniel Brooks (Brooks case). There, Mr. Brooks, a Vocational
Rehabilitation Specialist, was allegedly involved in a car accident while using a
government vehicle and then misled CAVHCS police about the circumstances
surrounding the accident. AF, Tab 11, Agency File Part 5 at 8, (Agency’s
Narrative Response). A significant amount of damage was done to the vehicle,
requiring repairs totaling $5,800. AF, Tab 12, Agency File Part 6 at 10, (Follow-
Up Investigative Report). As a Vocational Rehabilitation Specialist, Mr. Brooks’
duties required that he travel to perform checks on the facility’s Veteran patients.
On the day in question, Mr. Brooks stated that he was traveling to visit a patient
when several deer jumped in front of his vehicle causing him to swerve and hit a
sign. Jd. at 9. After the accident, Mr. Brooks stated that he obtained the
statement of a passer-by regarding the incident and proceeded to visit a former
Veteran patient of the facility. /d. An investigation into the matter was initiated
on May 16, 2013. AF, Tab 8, Agency File Tab 2 at 61, (Issue Brief dated Aug.
20, 2014). As with the Kennedy case, Officer Thomas was the investigating
officer. According to Officer Thomas, during the course of his investigation he
gave approximately three to four updates to the appellant and his Chief of Staff,
Mr. Robinson. AF, Tab 25, Agency Exhibit Tab 9 at § 19, (Declaration of C.
Thomas).

The investigation revealed that Mr. Brooks’ account of the accident was
not supported by the evidence, the statement he got from the passer-by was
fabricated, and the patient he visited was not on his list for visitation. AF, Tab
12, Agency File Part 6 at 9-14, (Follow-Up Investigative Report); AF, Tab 10,
Agency File Part 4 at 50-51, (Declaration of Patient D. Brooks Visited) (stating
he was discharged from CAVHCS in April of 2012 and Mr. Brooks visited him


22

appellant relies on to support this allegation is persuasive since the central thrust
of his contentions involves mere disagreement with the AIB’s findings and
conclusions. Other than this disagreement, the appellant presents no meaningful
evidence or argument as to what the procedural error was and how such error
would have caused the VA to reach a different result. Therefore, I find that the
appellant failed to meet his burden in establishing that the agency committed
harmful error.

Violation of Merit Systems Principles

First, the appellant asserts a violation of Merit System Principle 5'* (“The
Federal workforce should be used efficiently and effectively.”), pointing to
staffing shortages and leadership turnover at CAVHCS. AF, Tab 27 at 12-13,
(Talton Closing). The appellant alleges that these staffing problems, in turn,
prevented him from effectively managing CAVHCS and “precipitated” the very
misconduct at issue here. Jd. The alleged staff shortages have no bearing on the
appellant’s responsibility to initiate action against employees who have adversely
affected the missions of the agency. Therefore, I find that the appellant did not
show that the alleged staffing shortage prejudiced his rights, and I find that the
appellant has failed to establish this as an affirmative defense.

Second, the appellant asserts a violation of Merit System Principle 7
(“Employees should be provided effective education and training in cases in
which such education and training would result in better organizational and
individual performance”), indicating that had he been provided better “training in

evidence determination,” he would have better handled these cases at issue.

4 To prove a claim of violation of the Merit Systems Principles, the appellant is
required to specifically identify the principles which he believes have been violated, the
manner in which they have been violated, and the resulting harm or prejudice to his
rights. Although the appellant was afforded the opportunity to clarify and present
evidence to support his allegations that his removal was motivated by a prohibited
personnel practice, he failed to do so. Instead, the appellant generally contended that
the agency’s action violated a number of the Merit Principles under 5 U.S.C. § 2301.


28

24, Agency Exhibit Tab 8 at § 10, (Declaration of S. Gibson). With regard to
the second specification, Deputy Secretary Gibson testified that “when [the
appellant] ultimately provided appropriate information to Mr. Sepich about the
patient abuse and misconduct engaged by Joseph Kennedy in the form of an Issue
Brief, the information he provided was inaccurate.” Jd. at J 11.

Deputy Secretary Gibson testified that removal was the appropriate penalty
and the appellant was not a good candidate for rehabilitation because he “lost
complete trust in [the appellant’s] ability to function as a Federal employee.” Jd.
at J 16. Moreover, he found that the appellant “was made aware that an employee
under his authority endangered the health and safety of a vulnerable, addicted
Veteran patient entrusted to the VA’s care,” and “[d]espite numerous reminders
by subordinate staff, he failed to assure that any meaningful action was taken to
address this matter until well over a year later, when it was reported by the
press.” Jd. Furthermore, Deputy Secretary Gibson submits that the appellant’s
“misconduct has contributed to the public’s lack of trust that the VA can fulfill its
mission to care for Veterans.” Jd. While Deputy Secretary Gibson considered
several mitigating factors such as years of service, past work record and the
appellant’s response, he felt that removal was warranted because of the
seriousness of the sustained charges. Id. 4 17.

In his defense, the appellant argues that removal is an excessively severe
punishment because he was not aware of the seriousness of the employees’
conduct until August 2014. AF, Tab 27 at 15, (Talton Closing). At most, the
appellant submits that the offense in this case “amounts to failure to maintain
proper processes to monitor and ensure timely completion of disciplinary
action[s].” AF, Tab 5 at 21, (Talton Appeal Narrative). Moreover, the appellant
maintains that the agency failed to provide stable leadership at the medical center
by chronic vacancies that “permitted the organization to degenerate into a culture
devoid of accountability.” Jd. Also, he asserts that “[t]he environment and

operating conditions rendered it impossible to correct every performance and


dealership where the rehab patient and his roommate stated Mr. Kennedy took
them so Mr. Kennedy could purchase a car. AF, Tab 8, Agency File Part 2 at 15,
(Investigative Reports). During the course of his investigation, Officer Thomas
also prepared a thorough investigative report outlining his findings. See
generally AF, Tab 8, Agency File Part 2, (Investigative Reports). Officer
Thomas concluded his investigation into the alleged crack house incident and
other alleged misconduct by Mr. Kennedy on May 13, 2013. See AF, Tab 8,
Agency File Part 2, (Investigative Reports); AF, Tab 25, Agency Exhibit Tab 9 at
4] 10, (Declaration of C. Thomas). The investigation revealed that, in addition to
the evidence supporting the rehab patient’s account of the alleged crack house
incident, there was also evidence that the employee misused a government
vehicle for his benefit, submitted an inappropriate request for overtime
compensation, and engaged in inappropriate financial transactions with Veteran
patients. AF, Tab 11, Agency File Part 5 at 8, (Agency’s Narrative Response);
AF, Tab 25, Agency Exhibit Tab 9 at § 11, (Declaration of C. Thomas).

Upon concluding his investigation, sometime during the week of May 12,
2013, Officer Thomas and Chief Walton formally briefed the appellant of these
findings. AF, Tab 14, Agency File Part 8 at 203-206, (AIB Testimony of C.
Thomas); AF, Tab 25, Agency Exhibit Tab 9 at § 11, (Declaration of C. Thomas);
AF, Tab 14, Agency File Part 8 at 204:19-21, (AIB Testimony of E. Walton); AF,
Tab 26, Agency Exhibit Tab 10 at § 8, (Declaration of E. Walton). Officer
Thomas also stated that during this briefing he specifically told the appellant that
Mr. Kennedy left the rehab patient overnight at the crack house and that the rehab
patient was subsequently removed from the CAVHCS’s substance abuse program.
AF, Tab 14, Agency File Part 8 at 242:4-23; at 244:1-6, (AIB Testimony of C.
Thomas); AF, Tab 25, Agency Exhibit Tab 9 at J 11, (Declaration of C. Thomas).
When informed by Officer Thomas at the May briefing that the incident was
considered an administrative matter rather than criminal matter, the appellant’s

response was to turn the investigation over to his Chief of Staff, Cliff Robinson,


15

administrative file, the appellant would claim that he was unaware of the severity
of Kennedy’s actions.

In order to prove the specifically labeled charge of “neglect of duty,” the
agency must show “a failure to exercise the degree of care required under the
particular circumstances, which a person of ordinary prudence in the same
situation and with equal experience would not omit.” Thomas v. Department of
Transportation, 110 M.S.P.R. 176, 9 (2008); see also Mendez v. Department of
Treasury, 88 M.S.P.R. 596, J 26 (2001); Williams v. Department of Veterans
Affairs, 65 M.S.P.R. 612, 614-16 (1994) (finding negligence established on
showing of duty, the employee’s knowledge, and breach of duty of health care
worker's responsibility for surgical instrument sterilization), aff'd, 69 F.3d 554
(Fed. Cir. 1995). To establish the appellant’s duty, the agency must prove that
the appellant either knew or should have known of that duty. See Green v.
Department of Navy, 61 M.S.P.R. 626, 630-31 (1994).

I find that the agency proved that the appellant was aware of the full details
of the Kennedy investigation and that he failed to take appropriate action. In the
alternative, I find that, under the circumstances of this case and in light of the
mission of the agency, the appellant should have known that these instances
warranted his immediate and continued attention.’ The appellant is a Member of
the SES and Director of CAVHCS. Based on evidence of record, a person of
ordinary prudence in the same situation and with equal experience as the
appellant would have ensured that timely and appropriate administrative action
was taken against Mr. Kennedy. See Thomas, 110 M.S.P.R. at J 9. It is
uncontested that no action was taken against Mr. Kennedy over eighteen months

after the appellant became aware of the allegations. Thus, I find that the agency

° There is evidence in the record that Mr. Kennedy also borrowed and attempted to
borrow money from other patients at CAVHCS. See AF, Tab 8, Agency File Part 2,
(Investigative Reports).


17

discussed, it was not until October 25, 2013, that the appellant requested
information on removing Mr. Brooks from a position that required the use of a
government vehicle and asked if the Mr. Brooks could be required to pay for the
damage to the vehicle. AF, Tab 14, Agency File Part 11, (E-mail from J. Talton
dated Oct. 25, 2013). Three days later, the appellant instructed his chief of staff
and HR to confer with Officer Thomas to determine a recommended course of
action. /d. at 10, (E-mail from J. Talton dated Oct. 28, 2013). After October 28,
2013, however, there is no evidence that the appellant took any additional action
on the matter.

In response, the appellant again asserts, similar to the Kennedy case, that
he was aware that Mr. Brooks had damaged the government vehicle but was
unaware of any evidence that he had misrepresented the details of the accident.
AF, Tab 5 at 8, (Talton Appeal Narrative). The appellant further asserts that he
was not fully aware of the situation until August 19, 2014.

However, I find the sworn declarations of Officer Thomas and Chief
Walton, as well as the testimony given by them both before the AIB and the
investigative record demonstrate that the appellant was aware of the Brooks
situation, including the allegations that Mr. Brooks misrepresented the
circumstances of the accident and the fact that Mr. Brooks was not conducting
official agency business where the accident occurred.'’ As in the Kennedy case,
the investigative file is full of examples of Mr. Brooks’ distortions to the
investigating officers, and I find that the information provided was sufficient for
a reasonable person to conclude that the initiation of discipline was appropriate.
Thus, I find that the agency proved that the appellant was aware of the full details

of the Brooks investigation and failed to take appropriate action.

n During the investigation, the patient Mr. Brooks visited after the accident stated that

he “was sure it was not official Veteran Affairs business” as he had been discharged in
2012. AF, Tab 10, Agency File Part 4 at 50-51, (Declaration of Patient D. Brooks
Visited).


Narrative Response). Once at the crack house, the rehab patient claimed to have
smoked crack cocaine with several of the occupants. AF, Tab 9, Agency File Part
3 at 9, (Patient’s Sworn Declaration). Mr. Kennedy then allegedly left the rehab
patient at the crack house and failed to return. AF, Tab 8, Agency File Part 2 at
13, (Follow-Up Investigative Report). When the rehab patient returned to the
East Campus of CAVHCS on March 8, 2013, he was discharged from the
substance abuse program for being absent without leave (AWOL) and testing
positive on a drug screen. /d. After the rehab patient became enraged when
denied access to the facility on March 8", CAVHCS police were informed and
responded to the incident. /d. at 4, (Investigative Report).

Initially, CAVHCS police characterized the incident as disorderly conduct
by the rehab patient due to his unruly behavior. AF Tab 8, Agency File Part 2 at
5, (Investigative Report). Once the investigators arrived, however, the rehab
patient told them that Mr. Kennedy borrowed $600 from him, facilitated his drug
use by dropping him off at a crack house, and failed to return him to CAVHCS.
Id. Due to the seriousness of the rehab patient’s allegations, the agency
characterized the incident as patient abuse, and a preliminary investigation
ensued. See Id. According to the Chief of Police at the facility, Elvis Walton,
and the Investigating Officer, Cedric Thomas, the appellant was given a “heads-
up” regarding the alleged misconduct sometime during the week of March 17,
2013. AF, Tab 14, Agency File Part 8 at 41:14-18, (Administrative Investigative
Board (AIB) Testimony of E. Walton); AF, Tab 25, Agency Exhibit Tab 9 at § 9,
(Declaration of C. Thomas).

As part of his investigation, Officer Thomas interviewed and took sworn
statements from the complaining rehab patient, the rehab patient’s roommate,
who stated that Mr. Kennedy had told the men he could get the patients drugs and
sex, and another patient who alleged that Mr. Kennedy attempted to borrow $250
from him in early March 2013. See AF, Tab 9, Agency File Part 3, (Statements

of Patients). In addition, Officer Thomas spoke with a car salesman at the car


26

authority in termination of intelligence officials). Therefore, I find that the

appellant has failed to establish this affirmative defense.

The penalty of removal is reasonable.

The newly enacted legislation under which the Board exercises jurisdiction
over this appeal narrowly circumscribes the Board’s authority regarding review of
the agency’s penalty. 38 U.S.C. § 713(a)(1). The Board’s final rule
implementing this new legislation instructs as follows:

Penalty review. As set forth in paragraph (a) of this section, proof of

the agency's charge(s) by preponderant evidence creates a

presumption that the Secretary's decision to remove or transfer the

appellant was warranted. An appellant may rebut this presumption by
establishing that the imposed penalty was unreasonable under the
circumstances of the case, in which case the action is reversed.

However, the administrative judge may not mitigate the Secretary's
decision to remove or transfer the appellant.

5 C.F.R. § 1210.18(d).'®

In this case, Sloan Gibson, Deputy Secretary of the agency, served as the
deciding official in the appellant’s removal action. See AF Tab 24, Agency
Exhibit Tab 8, (Declaration of S. Gibson). Deputy Secretary Gibson testified that
he reviewed the AIB charge letter, the AIB investigative report, and the exhibits
attached to the AIB report, and concluded that the appellant had engaged in a

“significant dereliction of duties as the medical center director.” Jd. at 6.

'8 The Board generally analyzes the agency’s penalty selection, including penalties
assessed to Members of the SES, under the statutory “efficiency of the service”
standard, as interpreted by Douglas and its progeny. 5 U.S.C. § 7513(a); 5 U.S.C. §§
7701(b)(3), (c)(1); Douglas v. Department of Veterans Affairs, 5 M.S.P.R. 280, 307-08
(1981). That general rule places the burden of proving the reasonableness of the
agency’s penalty selection on the agency. Id.; see also 5 C.F.R. § 1201.56(a)(ii).
However, in interpreting Congress’ recently enacted legislation concerning VA
Members of the SES, the Board concluded that the efficiency of the service standard
and Douglas do not apply and that the express statutory language creates a rebuttable
presumption in favor of the VA Secretary’s discretion to select the appropriate penalty.
38 U.S.C. § 713; 79 Fed. Reg. 63031 (Oct. 22, 2014) (codified at 5 C.F.R. § 1210.18).


Background
At all times relevant to this appeal, the appellant served as the Director of

CAVHCS. CAVHCS is comprised of seven sites of care, including two large
campuses, the East Campus located in Tuskegee, Alabama and the West Campus
located in Montgomery, Alabama. The appellant is a Member of the Senior
Executive Service (SES).

In his role as Director of CAVHCS, the appellant was responsible for
overseeing all matters pertaining to CAVHCS. The appellant’s primary
responsibility, however, was to ensure that Veteran patients received quality and
efficient care. Regarding disciplinary and adverse actions taken against
CAVHCS employees, the appellant was responsible for delegating authority to
supervisors for direction and discipline of employees and making final decisions
to suspend, demote, or remove employees. AF, Tab 6, Agency File Part 1 at 34,
(CAVHCS Memorandum No. 05-12-12). At issue here are two instances of
alleged employee misconduct and the appellant’s role in CAVHCS’s failure to
timely take any disciplinary action against the employees.

Kennedy Case

The first instance of alleged misconduct (Kennedy case) took place on
March 6, 2013. There, an employee who occupied the role of Peer Support
Specialist, Joe Kennedy, allegedly drove a Veteran patient who was being treated
for substance abuse at CAVHCS (rehab patient) to a location known for illegal
drug use and distribution (i.e. a crack house) so that the rehab patient could

obtain illegal drugs and sex.' AF, Tab 11, Agency File Part 5 at 8, (Agency’s

' Peer Support Specialists, as part of their duties, are tasked with taking patients to
approved locations in the community and returning the patients to the facility promptly
following the completion of their designated tasks. At the time that the incident
occurred on March 6", the Peer Support Specialist was supposed to be escorting the
rehab patient to a local automobile repair shop so the rehab patient could check on the
status of repairs to his vehicle. AF, Tab 8, Agency File Part 2 at 6, (Follow-Up
Investigative Report).


29

process deficiency simultaneously.” Jd. at 22. According to the appellant, the
agency “failed to provide [him] with the resources necessary to fully perform the
duties of [his] position,” including adequate funding for additional staff. AF, Tab
5 at 28, (Talton Narrative). The appellant argues that he is being held to a higher
standard and treated differently than that other similarly situated employees. Id.
The appellant states that he “deeply regret[s] the attention the issue has drawn to
The Department of Veterans Affairs,” and that he “remain[s] fully committed to
improving the health care delivery to Veterans.” Jd. at 30. For purposes of
mitigation, the appellant submits that he has made significant improvements to
the overall operations to the agency; that he is a “Veteran who accepted the
nearly untenable challenge of improving service to Veterans at Central Alabama
Health Care System;” that the agency failed to provide him with adequate
resources to fully perform the functions of his position; that he has no
disciplinary record; and that he has over 31 years of Federal service. Jd. at 85.
And, “in light of the duration and character of service [he has] rendered to the
Agency and the U.S. Armed Forces,” he requested that I consider “the quality of
[his] service, [his] many contributions to the VA and Veterans, the improvements
[he has] achieved at the medical center, the conditions under which [he has]
served as director, the severe impediment [to] the environment placed on [his]
ability to perform [his] duties and to remain abreast of all matters within the
medical center.” AF, Tab 5 at 85, (Talton Narrative).

Deputy Secretary Gibson’s sworn statement demonstrates that he properly
and thoroughly considered all of the evidence of record when he concluded that
removal was an appropriate and reasonable penalty for the misconduct at issue.
AF, Tab 24, Agency Exhibit Tab 8 at 417. While I recognize that the usual
Douglas factors do not apply to a case such as this one, in order to determine the
reasonableness of the agency’s decision, inherently I have to examine the
seriousness of the charges to ensure that the removal action is for the efficiency

of the service. Cf. Gaines v. Department of Air Force, 94 M.S.P.R. 527, | 9


13

Kennedy. AF, Tab 13, Agency File Part 7 at 17, (E-mail from B. Winston dated
Sept. 11, 2014).’

In reply to the notice of proposed removal, the appellant contended that he
was justified in not taking immediate action against Mr. Kennedy on the charge
of patient abuse because he believed the charge was “not substantiated.” AF, Tab
5 at 8, (Talton Appeal Narrative). While the appellant acknowledged that he met
with the police officers on several occasions, he asserted that the police officers
failed to provide him with specific information that would justify some type of
action against Mr. Kennedy for patient abuse. /d. The appellant testified that he
asked the police officers three times if there were any witnesses to the events
described in specification one and that the briefings provided by police lasted
only two to three minutes. AF, Tab 14, Agency File Part 8 at 57: 16-18, (AIB
Testimony of J. Talton). Further, he asserted that he did not know that Mr.
Kennedy deserted him at the crack house, or that the rehab patient was
subsequently discharged from the drug treatment program based upon Mr.
Kennedy’s actions. Jd. at 80: 22. The appellant argues that had he “been aware
of such facts, [he] would have elevated the case to a more urgent status and
would have addressed the matter more expeditiously.” AF, Tab 5 at 8, (Talton
Appeal Narrative). Finally, the appellant contended that he only learned of these
additional facts when he met with Chief Walton and Officer Thomas on August
19, 2014. AF, Tab 14, Agency File Part 8 at 83:4-6, (AIB Testimony of J.
Talton).

In this case, the appellant basically argues that his inaction was justified
because he lacked sufficient information to warrant taking a disciplinary action

against Mr. Kennedy. Assessment of the probative value of hearsay evidence

u Indeed, the appellant acknowledged Ms. Winston’s views when he testified before the
AIB and stated “she’s the one who told them there was enough evidence in the police
report to sustain an administrative action.” AF, Tab 14, Agency File Part 8 at 96:7-10,
(AIB Testimony of J. Talton).


16

proved that the appellant failed to exercise appropriate oversight to ensure that
timely and appropriate action was taken against Mr. Kennedy, and that the agency

proved specification one by preponderant evidence.'°

Charge One: Neglect of Duty (Specification Two)

Specification two provides:

In June 2013, you were aware that CAVHCS employee Danny
Brooks was involved in a vehicle accident while misusing a
government vehicle and then misled CAVHCS Police regarding the
circumstances surrounding the accident. After being informed of
this misconduct, you failed to exercise appropriate oversight to
ensure that timely and appropriate action was taken against this
employee.

AF, Tab 17 at 32-33.

It is undisputed that Officer Thomas and Chief Walton met with the
appellant in mid-summer 2013 concerning the Brooks case, and, by that time,
Officer Thomas had concluded that Mr. Brooks damaged a government vehicle
and provided false information during the investigation. AF, Tab 25, Agency
Exhibit Tab 9 at 18, (Declaration of C. Thomas). Chief Walton testified that
during this meeting the appellant was briefed regarding Officer Thomas’ findings,
namely that “the fact that Danny Brooks was in an accident that caused almost
$6000 in damage to a Government car, left the scene of the accident, failed to
report the accident, claimed to be visiting a Veteran patient who [was]
determined not to be a current patient, among other things.” AF, Tab 26, Agency
Exhibit Tab 10 at 12, (Declaration of E. Walton). Subsequently, after Officer
Thomas observed Mr. Brooks driving around the Montgomery campus several
months after he concluded his investigation, he contacted Chief Walton, and they

requested a status update from the appellant. Jd. at 4 13. As previously

0 4 preponderance of the evidence is that degree of 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. 5 C.F.R. § 1201.56(c)(2).