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Robinson v. Department of Veterans Affairs

United States Court of Appeals, Federal Circuit

May 6, 2019


          Petition for review of the Merit Systems Protection Board in No. DE-0752-16-0351-I-1.

          Julia H. Perkins, Shaw, Bransford & Roth P.C., Washington, DC, argued for petitioner. Also represented by James Philip Garay Heelan, Debra Lynn Roth.

          Hillary Stern, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent. Also represented by Reginald Thomas Blades, Jr., Robert Edward Kirschman, Jr., Joseph H. Hunt.

          Before Reyna, Taranto, and Chen, Circuit Judges.


         Lance Robinson appeals the Merit Systems Protection Board's decision to uphold the Department of Veterans Affairs' removal of Mr. Robinson as Associate Director of the Phoenix Veterans Administration Health Care System. Because the Merit Systems Protection Board did not abuse its discretion and its finding of negligence is supported by substantial evidence, we affirm.


         Lance Robinson became the Associate Director of the Phoenix Veterans Administration Health Care System ("Phoenix VA") in May 2012. He had been the acting Associate Director from October 2011 through February 2012 and started his career with the U.S. Department of Veterans Affairs ("VA") in 1987. Mr. Robinson's job responsibilities included supervising most of the Phoenix VA administrative personnel, Health Administration Services ("HAS"), human resources, and a number of other departments. HAS is responsible for managing the scheduling of appointments at the Phoenix VA. Employees in these departments reported to Robinson through a number of supervisors and department chiefs. During his tenure as Associate Director, Mr. Robinson was aware that scheduling issues were a problem, including the fact that it often took more than thirty days for patients to receive new-patient appointments.

         In early 2014, U.S. Congressman Jeff Miller, Chairman of the House Committee on Veterans' Affairs, made public allegations that forty veterans died while on "secret" waitlists at the Phoenix VA. J.A. 5. These accusations led to an investigation by the Office of the Inspector General ("OIG") and the Department of Justice ("DOJ"). As a result, the VA put Robinson on administrative leave on May 2, 2014.

         On May 28, 2014, OIG issued an interim report that addressed the waitlist allegations at the Phoenix VA. The report suggested that HAS supervisors should have known about the 1, 700 veterans that had been waiting on the New Enrollee Appointment Request ("NEAR") list for longer than thirty days and had not yet seen a physician or had not been moved to the Electronic Wait List ("EWL"). The NEAR list is used to alert schedulers "that a newly enrolled Veteran has requested an appointment during the enrollment process." J.A. 2. EWL "is the official [Veterans Health Administration] wait list . . . used to list patients waiting to be scheduled, or waiting for a panel assignment." J.A. 2. The Veterans Health Administration ("VHA") Outpatient Scheduling Directive 2010-027 ("Scheduling Directive"), dated June 9, 2010, outlined procedures for scheduling VA patients for medical appointments and required HAS to use NEAR and EWL to do so. It also mandated that no other waitlists besides the EWL were to be used to track VA outpatient appointments.

         On May 30, 2014, based on the OIG interim report, the VA's Deputy Chief of Staff proposed that Robinson be removed as the Associate Director of the Phoenix VA due to his "failure to provide oversight." J.A. 6030. The VA's Assistant Secretary of the Office of Security and Preparedness, Kevin Hanretta, was named Deciding Official in Robinson's case. Mr. Hanretta did not take action on Robinson's proposed removal. Robinson remained on administrative leave for two years, returning to duty in January 2016.

         Meanwhile, OIG, DOJ, and Congress continued to investigate the allegations of secret waitlists at the VA. The Senate Committee on Veterans' Affairs ("Senate Committee") asked Dr. David Shulkin, the Under Secretary for Health at the time, why many senior executives were placed on paid administrative leave instead of removed from office for the deaths of veterans who languished on secret waitlists. J.A. 7106-07. Dr. Shulkin replied that although the VA would like to conclude its disciplinary actions, "[t]he U.S. attorney . . . has prohibited us from interviewing those individuals." J.A. 7107; see also J.A. 7099. On December 28, 2015, Mr. Robinson, having heard Dr. Shulkin's statements, submitted a letter to the Chairman of the Senate Committee and another ranking member of the same Committee "to correct [Dr. Shulkin's] inaccurate testimony." J.A. 6866. Mr. Robinson claimed that the VA called him to testify regarding patient wait times and that OIG also interviewed him on June 9, 2015. J.A. 6869-70. On January 13, 2016, Senator John McCain, a member of the Senate Committee, expressed his disappointment in the VA, stating: "During the recent Senate Veterans Affairs Committee hearing on health care and accountability at the Phoenix VA Health Care System, senior VA officials repeatedly gave inaccurate testimony to my questions on why no actions have been taken against these officials." J.A. 7163.

         In January 2016, Mr. Robinson returned to active duty status and began working at Veterans Integrated Service Network ("VISN") 18, the regional entity that oversees the Phoenix VA. About three months later, on March 14, 2016, Deputy Secretary Sloan Gibson issued a second proposal for Robinson's removal, rescinding the May 30, 2014 notice. J.A. 486. Mr. Gibson charged Mr. Robinson with three grounds for removal: (1) negligent performance of duties (six specifications); (2) failure to ensure accuracy of information provided (three specifications); and (3) retaliation against another VA employee for making protected disclosures, which is prohibited by the Whistleblower Protection Enhancement Act (six specifications). J.A. 7, 486-89. On June 7, 2016, Mr. Gibson, who served as both the Proposing Official and Deciding Official, sustained all charges against Mr. Robinson and removed him as Associate Director of Phoenix VA.

          Charge 1 of the second proposal for removal alleged that Mr. Robinson negligently performed his duties as Associate Director. Specifications 1 and 4 outlined how Mr. Robinson negligently failed to ensure that HAS personnel used NEAR to schedule appointments or put veterans on EWL. J.A. 486-87. Specification 2 accused Mr. Robinson of failing to make certain that subordinates scheduled veterans for appointments or placed them on EWL after capturing patient information on screenshots. J.A. 486. The remaining specifications accused Mr. Robinson of failing to ensure that HAS personnel (1) scheduled veterans for primary care appointments after visiting the emergency room (specification 3); (2) used EWL in all outpatient settings in compliance with VA instructions (specification 5); and (3) used the Recall/Reminder[1] software to request follow-up appointments when an appointment could not be immediately scheduled, as dictated by VA policy (specification 6). J.A. 2, 486-87.

         Charge 2 alleged that Mr. Robinson did not ensure that he, or his subordinates, provided accurate information to VISN 18. J.A. 487. In particular, Robinson failed to conduct daily assessments of "scheduling accuracy processes" (specification 1) or accurately provide information regarding the use of EWL (specification 2) and NEAR (specification 3). J.A. 487.

         On March 15, 2016, one day before Mr. Robinson was served with his second notice of proposed removal, Deputy Secretary Sloan Gibson made statements in a news interview regarding the status of senior VA personnel allegedly responsible for the secret waitlist scandal. Mr. Gibson reportedly stated "he was disappointed that it took so long for the executives to be removed," and "he was confident that the latest firings would be upheld on appeal." J.A. 7186-87. These statements were published in the New York Times. On June 7, 2016, Mr. Gibson issued the Decision Regarding Proposed Removal, removing Mr. Robinson from his position as Associate Director of Phoenix VA.

         Mr. Robinson appealed to the Merit Systems Protection Board ("Board"). The administrative judge ("AJ") affirmed the VA's decision to remove Robinson on the grounds that he was negligent in the performance of his duties and that he failed to provide accurate information to his supervisors. J.A. 2. The Board did not sustain the whistleblowing retaliation charge against Mr. Robinson. J.A. 43. Mr. Robinson appeals the Board decision. We have jurisdiction under 28 U.S.C. § 1295(a)(9) and 5 U.S.C. § 7703(b)(1).


         This court shall set aside any Board decision found to be arbitrary, capricious, an abuse of discretion, or unsupported by substantial evidence. 5 U.S.C. § 7703(c). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Frederick v. Dep't of Justice, 73 F.3d 349, 352 (Fed. Cir. 1996)(quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). An example of an abuse of discretion is an erroneous interpretation of law or unreasonable judgment in weighing relevant factors. Gose v. U.S. Postal Serv., 451 F.3d 831, 836 (Fed. Cir. 2006) (quoting Lacavera v. Dudas, 441 F.3d 1380, 1383 (Fed. Cir. 2006)).

         When an agency takes adverse action against an employee, the agency must establish by a preponderance of the evidence that (1) the charged conduct occurred; (2) there is a nexus between the conduct and efficiency of service; and (3) the imposed penalty was reasonable. Bryant v. Nat'l Sci. Found., 105 F.3d 1414, 1416 (Fed. Cir. 1997)(citing 5 U.S.C. §§ 7701(c)(1)(B), 7513(a)).

         On appeal, Mr. Robinson contends that substantial evidence does not support the Board's decision to sustain removal; that removal was not a reasonable disciplinary action; that the VA failed to meet its burden to show by clear and convincing evidence that he would have been removed absent his protected disclosures against Dr. Shulkin; and that his due process rights were violated. We address each argument below.

         A. Charge 1: Negligent Performance of Duties

         There is no dispute that VA personnel failed to use NEAR or EWL, ultimately leading to thousands of veterans going unseen for medical care. The question here is whether Mr. Robinson was negligent in that he knew or should have known that his subordinates consistently failed to use scheduling practices required by VA policy. In short, the answer is yes. Mr. Robinson was a member of upper-level management responsible for ensuring that HAS personnel complied with the policies set forth in the Scheduling Directive. Instead, he took a hands-off approach to managing the scheduling problems at Phoenix VA despite knowing the severity of scheduling problems permeating the system. Accordingly, the Board did not err in sustaining the negligence charges against Mr. Robinson.

         Mr. Robinson argues that substantial evidence does not support a finding that he acted negligently in the performance of his duties. He attacks the evidence supporting each of the Board's findings with respect to each of the six specifications listed in the second notice of removal. We address each specification, and the evidence assessed by the Board, in turn.

         Specifications 1, 2, and 4

         Specifications 1, 2, and 4 all similarly allege that Mr. Robinson failed to properly supervise HAS personnel to ensure that NEAR and EWL were used to schedule veterans for medical appointments. Mr. Robinson contends that because he did not actually know that his subordinates were not using NEAR or EWL, he cannot be held liable for the actions of his subordinates. To the contrary, substantial evidence supports a finding that Mr. Robinson knew, or should have known, of his subordinates' failure to use NEAR and EWL.

         An individual is negligent in the performance of his duties if he fails to exercise the degree of care that "a person of ordinary prudence" with the same experience would exercise in the same situation. Velez v. Dep't of Homeland Sec., 2006 M.S.P.B. 116, ¶ 11 (2006) (citing Mendez v. Dep't of the Treasury, 88 M.S.P.R. 596, ¶ 26 (2001)), aff'd, 219 Fed.Appx. 990 (Fed. Cir. 2007). A supervisor cannot be held responsible for the conduct of his subordinate unless he directed, knew, or should have known of the subordinate's misconduct and acquiesced to the improper behavior. Miller v. Dep't of Health & Human Servs., 7 M.S.P.B. 713, 714- 15 (1981).[2] Factors to consider under the "knowledge and acquiescence standard" are (1) the knowledge the supervisor had, or should have had, of the subordinate's misconduct; (2) the existence of policies or practices relevant to the misconduct; and (3) the extent to which the supervisor directed or acquiesced to the subordinate's misconduct. Id. The Board may also consider the experience of the supervisor, including his length of service, as well as the number of employees under the supervisor's purview. Id. Not all of the factors iterated above are relevant in every case. Id. But, in each instance, the relevant factors are weighed to discern whether the supervisor may be held responsible for the actions of his subordinates. Id.

         As an initial matter, Mr. Robinson misunderstands the charges against him. Specifications 1, 2, and 4 do not charge Robinson for "the failings of subordinates," as he contends. Appellant Br. 38. Rather, Mr. Robinson is charged with the failure to perform his duties as Associate Director. The charge against Mr. Robinson-negligent performance of duties-implicates the behavior of his subordinates because his failure to supervise HAS personnel, among others, is at the root of each of specifications 1, 2, and 4. Therefore, we apply the Miller standard to assess whether Mr. Robinson negligently performed his duties by "allowing a situation to exist in which his subordinates acted improperly." Miller, 7 M.S.P.B. at 713.

         The VA clearly had a policy dictating the scheduling of outpatient appointments-in this case, the Scheduling Directive. The Scheduling Directive also aimed to "ensur[e] the competency of staff directly or indirectly involved in any, or all, components of the scheduling process," and explicitly cautioned "[f]acility leadership [to] be vigilant in the identification and avoidance of inappropriate scheduling activities." J.A. 676, 686. As part of the "facility leadership," Mr. Robinson had a duty to ensure that his subordinates complied with the Scheduling Directive and used NEAR and EWL to schedule outpatient appointments.

         Importantly, Mr. Robinson was aware of the Scheduling Directive when it issued in 2010. He testified that the VA issued the Scheduling Directive when he was Associate Director at the Amarillo VA Medical Center. J.A. 11713.

         Substantial evidence shows Mr. Robinson had actual knowledge of the Phoenix VA's scheduling problems during his tenure as Associate Director of Phoenix VA. On January 7, 2012, VISN 18 issued an Appointment Scheduling Audit Report that assessed whether "VISN facilities were compliant with VHA policy and regulatory guidance related to appointment scheduling and use of the Electronic Wait List." J.A. 751. Among other things, the audit noted "Phoenix was not appropriately placing patients on the EWL." J.A. 794; see also J.A. 753 ΒΆ 4. Mr. ...

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