Title: Department of
parties in this matter are the Department of Veterans Affairs, Anchorage, Alaska
(Agency or Employer) and Local 3028 of the American Federation of Government
Employees (Union or AFGE). The relevant collective bargaining agreement is the
Master Agreement between the Department of Veterans Affairs and the American
Federation of Government Employees, effective March 21, 1997 (Agreement).
hearing was held in Anchorage, Alaska on February 15-18, 2005. The parties
agreed that the matter was properly before me as Arbitrator to hear the dispute
and to issue a final and binding decision. Both parties participated in the
hearing; each had full opportunity to present evidence, call and cross-examine
witnesses, and argue its case.
Witnesses were sequestered.
parties elected to make closing arguments in written post-hearing briefs. They
set Friday, April 15, 2005, for submission of briefs. Upon receipt of the second
of the two briefs on April 16, 2005, the record was closed.
the Agency have just cause to remove the Grievant under the Douglas factors? If
not, then what shall the remedy be?
ARTICLE 13--DISCIPLINE AND
Section 1 - General
Department and the Union recognize that the public interest requires the
maintenance of high standards of conduct. No bargaining unit employees will be
subject to disciplinary action except for just and sufficient cause.
Disciplinary actions will be taken only for such cause as will promote the
efficiency of the service. Actions based upon substantively unacceptable
performance should be taken in accordance with Title 5, Chapter 43 and will be
covered in Article 26 Performance Appraisal System.
Section 2 - Definitions
purposes of this Article, the following definitions are used:
For Title 5 employees:
1. A disciplinary action is defined as an
admonishment, reprimand, or suspension of fourteen (14) calendar days or less
2. Adverse actions are removals, suspensions of more
than fourteen (14) calendars [sic]
days, reduction in pay or grade, or furloughs of thirty (30) calendar days or
For Title 38 employees:
1. A disciplinary action is defined as an admonishment
or reprimand taken against an employee for misconduct and
2. A major adverse action is a suspension, transfer,
reduction in grade, reduction in basic pay, or discharge taken against an
employee for misconduct.
Section 3 - Removal of
Section 4 - Administrative
Section 5 - Alternative and
Section 6 - Fairness and
actions must be consistent with applicable laws, regulations, policy, and
accepted practice within the Department. Discipline will be applied fairly and
equitably and will not be used to harass employees. Disciplinary actions will be
timely based upon the circumstances and complexity of each case.
Section 7 - Processing
Admonishments and Reprimands
Section 8 - Processing
Suspensions, Adverse Actions, and Major Adverse Actions
An employee against whom a suspension, adverse action, or major adverse action
is proposed is entitled to thirty (30) days advance written notice, except when
the crime provisions have been invoked. The notice will state specific reasons
for the proposed action. Management agrees that the employee shall be given the
opportunity to use up to eight (8) hours of time to review the evidence on which
the notice is based and that is being relied on to support the proposed action.
Additional time may be granted on a case-by-case basis. Upon request, one copy
of any document(s) in the evidence file will be provided to the employee and
their [sic] designated representative.
The employee and/or representative may respond orally and/or in writing as soon
as practical but no later than fourteen (14) calendar days from receipt of the
proposed action notice. The response may include written statements of the
persons having relevant information and/or other appropriate evidence.
Management has the right to restrict the response time to seven (7) days when
invoking the crime provision.
Extensions for replying to proposed adverse actions and suspensions may be
granted when good cause is shown. The appropriate management official will issue
a written decision at least five (5) days prior to the effective date. The
written decision shall include the reason for the disciplinary action and a
statement of findings and conclusions as to each charge. The decision shall also
include a statement if any sustained charges arose out of “professional
conduct or competence” and a statement of the employee’s appeal rights. In
responding to a proposed disciplinary action, the employee will be entitled to
These provisions do not apply to probationary or trial employees.
Section 9 - Notice of
Notice of a final decision to take disciplinary action shall be in writing and
shall inform the employee of appeal and grievance rights and their [sic]
right to representation. The employee will be given two (2) copies of the
notice; one (1) copy may be furnished to the Union by the employee. Management
will inform the Union when it takes a disciplinary action against a unit
Notices shall explain in detail the reasons for the action taken and all
evidence relied upon to support the decision. The notice will also advise the
employee how long the action will be maintained in their [sic]
file. The supervisor shall discuss the notice with the employee. If the employee
elects to have a union representative present, the discussion will be delayed
until the Union has an opportunity to furnish a representative.
Section 10 - Investigation
of Disciplinary Actions
Management will investigate an incident or situation as soon as possible to
determine whether or not discipline is warranted. Ordinarily this inquiry will
be made by the appropriate line supervisor. The employee who is the subject of
the investigation will be informed of their [sic]
right to representation before any questioning takes places [sic] or signed statements are obtained. Other employees questioned
in connection with the incident who reasonably believe they may be subject to
disciplinary action have the right to Union representation upon request.
Disciplinary investigations will be conducted fairly and impartially, and a
reasonable effort will be made to reconcile conflicting statements by developing
additional evidence. In all cases, the information obtained will be documented.
Supervisory notes may be used to support an action detrimental to an employee
only when the notes have been shown to the employee in a timely manner after the
occurrence of the act and a copy provided to an employee as provided for in
Article 23 Official Records.
Section 1 - General
As exclusive representative, the Union shall be given the opportunity to be
present at any examination of an employee in the bargaining unit(s) by a
representative of the Department in connection with an investigation if:
1. The employee reasonably believes that the
examination may result in disciplinary action against the employee, and
2. The unit employee requests representation.
The right to union representation is not intended to interfere with the routine
interaction between supervisors and employees in the normal course of a workday.
The Department shall annually inform its employees of their right to union
representation under 5 USC 7114(2)(B) by posting notice of such rights on
bulletin boards and through other
If any supervisor or management official of the Department, in advance of or
during the questioning of an employee, contemplates the likelihood of
disciplinary action, the employee shall be informed of their right [sic]
to union representation prior to further questioning. If an employee in the
bargaining unit requests Union representation, management will reschedule the
meeting as soon as possible, and the Union will be given the opportunity to be
Section 2 - Investigations
The Department agrees that before employees
conduct a formal investigation, they shall be properly trained.
B. The Department will inform the local union in advance of a
formal administrative investigation when
a bargaining unit employee is the subject of the investigation or inquiry.
Investigations should consider all facts, circumstances, and human factors. An
investigation shall be conducted in an expeditious and timely manner.
Employees have the right to be represented by the Union while being questioned
in a formal investigation or while being required to provide a written or sworn
statement. Before such questioning begins or a statement given, employees will
be informed of the reasons they are being questioned or asked to provide a
If an employee is the subject of an investigation, the employee will be informed
of the right to union representation prior to being questioned or asked to
provide a statement. The employee will also be informed of the nature of the
allegation(s). Once an employee requests union representation, except in very
rare and unusual circumstances, no further questioning will take place until the
Union is present.
Supervisors, employees, and union representatives will not, except as
specifically authorized, disclose any information about an investigation. A copy
of the statement of the employee will be given to the employee and/or the
employee’s representative upon request. If no action was taken as a result of
this investigation, the employee who was the subject will receive the findings
in a timely manner.
Upon request, the subject of the investigation and the Union will be furnished a
copy of the complete investigation file (not just the evidence file) and all
other relevant and pertinent information which would be provided under Freedom
of Information Act (FOIA) or 5 USC Section 7114, which would normally include
the Administrative Investigation Board (AIB) report findings.
The statement of employee rights and obligations will be consistently applied
throughout the AFGE bargaining unit. That statement will be consistent with this
Agreement and include the following:
1. The employee’s right to representation by AFGE,
2. The right of an employee to a copy of their [sic]
personal statement or testimony, and
3. The right of employees not to incriminate
When an employee has requested union representation in an investigative
proceeding, the union representative may fully and actively represent the
employee and is not limited to the role of an observer.
An employee's representative shall receive a complete copy of all evidence used
to support the Department's action. This includes, but is not limited to, copies
of all tapes, testimony/transcripts, recommendation and/or findings, and photographs. The Department will make every effort to provide
additional information requested by the employee's representative. The
Department will provide a written explanation of any denial of information
requested in a timely manner.
The participation of bargaining unit employees on an administrative
investigating board will be with the consultation of the Union.
- Notice to Invoke Arbitration
the Union or Management may refer to arbitration any grievance that remains
unresolved after the final step under the procedures of the [sic]
Article 42, Grievance Procedures. A notice to invoke arbitration shall be made
in writing to the opposite party within thirty (30) calendar days after receipt
of the written decision rendered in the final step of the grievance procedure.
Section 2 - Conventional
On or after the date of the notice to invoke arbitration, the moving party will
request the Federal Mediation and Conciliation Service (FMCS) to provide a list
of seven (7) impartial persons to act as an arbitrator. The parties shall meet
within ten (10) calendar days after receipt of such list to select an arbitrator
(this may be done by telephone for national level grievances). If the parties
cannot mutually agree on one of the listed arbitrators, then Management and the
Union will alternatively [sic] strike one potential arbitrator’s name from the
list of seven (7) and will then repeat this procedure until one (1) name
remains. The remaining person shall be the duly selected arbitrator. The parties
will choose lots to determine who strikes the first name. Following the
selection, the moving party will, within fourteen (14) calendar days, notify the
Federal Mediation and Conciliation Service of the name of the arbitrator
selected. A copy of the notification will be served on the other party. The time
limits may be extended by mutual consent.
The procedures used to conduct an arbitration hearing shall be determined by the
arbitrator. Both parties shall be entitled to call and cross-examine witnesses
before the arbitrator. All witnesses necessary for the arbitration will be on
duty time if otherwise in a duty status. On sufficient advance notice from the
union, management will rearrange necessary witnesses’ schedules and place them
on duty during the arbitration hearing whenever practical. Such schedule changes
may be made without regard to contract provisions on Hours of Duty. A reasonable
amount of preparation time for arbitration will be granted in accordance with
the provisions of Article 45 Official Time and local supplementary agreements.
The arbitrator’s fees and expenses shall be borne equally by the parties. If
either party requests a transcript, that party will bear the entire cost of such
For single station local grievances, the site normally will be the facility
where the grievance exists. At the Local’s request, another site may be
designated upon mutual agreement. If another site is used, the Local will pay
the cost of the site. For grievances at the national level, the Department and
the Council President will communicate to work out a mutually agreeable site for
The parties will attempt to submit a joint statement of the issue or issues to
the arbitrator. If the parties fail to agree on a joint submission, each shall
make a separate submission. The arbitrator shall determine the issue or issues
to be heard.
The arbitrator’s decision shall be final and binding. However, either party
may file an exception to the arbitrator’s award in accordance with applicable
law and regulations. The arbitrator will be requested to render a decision
within sixty (60) days. Any dispute over the interpretation of an arbitrator’s
award shall be returned to the arbitrator for settlement, including remanded
An arbitrator’s award shall have only local application unless it was a
national level grievance or the matter was elevated to the national level under
procedures set forth below. Where it is mutually agreed between the Council
President and the Department within thirty (30) days after a local has filed a
notice for arbitration, an arbitration dispute will be elevated to the national
level. The arbitrator has full authority to award appropriate remedies,
including reasonable legal fees, pursuant to the provisions of Section 702 of
the Civil Service Reform Act, in any case in which it is warranted.
Section 3 - Expedited
Arbitrator’s Audience. In my view, in addition to the advocates of the
parties to whom an Opinion is submitted, grievants and other employees,
supervisors and other management personnel are key parts of the audience for
arbitrators’ Opinions. In the public sector, the audience may well also
include the public. One cannot assume that all members of such a wider audience
necessarily will have access to the documentary evidence or to the specifics of
the testimony presented at a hearing, or that they will be as familiar as are
the advocates with other details of the case or with arbitration practices,
procedures, and standards. With that larger audience in mind and where I deem it
may be helpful to a reader’s understanding, I provide background for my
individuals who play a part in this dispute. Arbitrators’ Opinions can
become permanent records, at least in the archives of the parties. Arbitrations
can deal with very personal and private matters and, during the course of an
arbitration, assertions can be made that may not be factual. Moreover, in
fulfilling their obligations to the parties, arbitrators are often called upon
to make assessments of the credibility and job performance of individuals on
each side of a dispute.
I can do so without sacrificing clarity, I compose my Opinions to identify
persons by roles rather than by names. Since the parties are aware of the
identity of individuals, this device does not place them at a disadvantage, but
it does erect a somewhat effective shield against easy identification by persons
not directly involved in a case.
At the time of his removal, the Grievant was employed by the Alaska VA
Healthcare System and Regional Office (Agency) as a Specialty Care Technician.
He had been in this assignment, “About two, three years”. (Agency Ex. 1, Tab
3, p. 5, ll. 4-5.) He had been an employee at the Facility since
The Grievant was removed from employment effective June 12, 2004. The
termination was for “patient abuse” that is alleged to have taken place on
December 2, 2003, during his assignment to the Agency’s Urology Clinic
(Clinic), when he “inappropriately touched …
[a patient at the facility (Patient)] in such a manner as to cause the patient
extreme distress”. (Agency Ex. 4.)
The removal was based upon allegations made by the Patient.
On December 2, 2003, the Patient had a morning appointment with a
physician (Urologist) at the Clinic
and an afternoon appointment with a physician who was his primary care provider
events took place on December 2, 2003.
The Patient arrived at the Clinic at 9:26 a.m. (Agency Ex. 14) for a 9:45
a.m. appointment. (Agency Ex. 1, Tab 2, p. 5, ll. 16-17.)
At some time between his arrival and the time of his appointment, the
Patient was taken into an examination room by the Grievant. The time of this
activity is in dispute.
At some time between the entry into the examination room and 10:57 a.m.,
certain activities took place. What took place is a matter of dispute. The
Patient’s allegations about the activities (Allegations) provide the basis for
the removal of the Grievant from employment.
The Patient reported his version of the activities to the Urologist
shortly after 10:05 a.m. on December 2, 2003.
Shortly thereafter, the Urologist spoke to the Urology Care Manager to
learn who would be the appropriate person to consult about the Allegations. The
Urology Care Manager advised him to speak to the Surgery Clinic Nurse Manager.
(Agency Ex. 1, Tab 2, ll. 21-24.)
The Urology Care Manager reported the Urologist’s input to the Surgery
Clinic Nurse Manager. (Agency Ex. 1, Tab 5, p. 46, ll. 4-5.)
The Urologist spoke to the Surgery Clinic Nurse Manager who advised him
to put the report in writing. (Agency Ex. 1, Tab 2, 1l. 24-25.) He did so in a
letter dated December 3, 2003. (Agency Ex. 3, Tab 7.)
The Patient had a second medical appointment on December 2, 2003. He was
scheduled to see his PCP at 1:00 p.m. Prior to seeing the Patient, the PCP was
informed by his assigned nurse (LPN) and the Surgery Clinic Nurse Manager of the
Allegations. (Agency Ex. 1, Tab 4, p. 33. ll. 13-16.)
The Patient and the Surgery Clinic Nurse Manager discussed the matter at
the close of the afternoon appointment.
The Surgery Clinic Nurse Manager filed an Incident Report (Agency Ex. 3,
Tab 1), attached a written narrative dated December 2, 2003 (presumably Agency
Ex. 3, Tab 2), in response to Part G of the form that called for a “brief
description of the adverse event”.
The Surgery Clinic Nurse Manager spoke to the Grievant either on December
2 or December 3, 2003. The date of the meeting is disputed. At this meeting, the
Surgery Clinic Nurse Manager informed the Grievant that, “an allegation had
been made against him”, but did not identify the person making the allegation.
(Agency Ex. 1, Tab 6, p. 85, ll. 18-19.) Following the close of that meeting,
the Grievant returned to identify the person whom he thought had made the
Allegations. The import of this action and the methodology by which the Grievant
came to his conclusion figure in the dispute.
The Surgery Clinic Nurse Manager spoke with the Grievant and his Union
representative on December 3, 2003.
By official Memorandum dated December 22, 2003, the Agency Director
ordered the convening of an Administrative Investigation and appointed three
Agency personnel to an Administrative Investigation Board (AIB). (Agency ex. 3,
The Board’s assignment was to “a. Fact find the patient’s
allegations that … [the Grievant] performed a genital exam on” him; “b. Fact
find the patient’s allegations that … [the Grievant] performed a nipple
manipulation on” him; “c. Determine if the facts obtained through the
witnesses [sic] testimony support the allegations …”; “d. Determine if the
employee performed actions within [sic]
the scope of his position description.”
In a report dated February 5, 2004, all three members of the AIB signed a
report that included the following conclusions:
The testimonies do not conclusively determine whether the … [Grievant]
did or did not perform a genital exam on … [the Patient]… in a way the
patient believed was to cause an erection. However, we believe the information
provided in the testimonies and statements from … [the Surgery Clinic Nurse
Manager, the Urology Clinic Manager, the PCP, the Urologist] and the written
statements of … [the LPN] substantiate … [the Patient’s] allegations.…
Furthermore, the testimony of … [the Grievant] was inconsistent and
contradictory within his own testimony, with that of his coworkers, and with
that of [the Patient]. … [The
Grievant’s] testimony does not support his statement that he did not perform a
genital exam on … [the Patient] in such a way as to cause an erection. (Agency
Ex. 1, p. 2.)
Testimonies do not support the allegation that the … [Grievant]
performed a nipple manipulation on … [the Patient] in a way the patient
believed was to cause an erection. (Agency Ex. 1, p. 7.)
The testimonies of … [the Patient, the Urology Clinic Manager, and the
Surgery Clinic Nurse Manager] indicate that …[the Grievant] performed actions
outside his scope of practice. (Agency Ex. 1, p. 8.)
We believe … [the Grievant] performed a genital exam on … [the
Patient], and in doing so, performed actions outside his scope of practice.
(Agency Ex. 1, p. 9.)
By letter dated March 22, 2004 (Agency Ex. 11), the Chief of Staff
informed the Grievant that it was proposed that he be removed from employment
with the Agency. The letter stated, “The reasons [sic]
supporting this action are: a. On December 2, 2003, you inappropriately touched
… [the Patient] in such a manner as to cause the patient extreme distress.”
By submission dated April 19, 2004, the Union responded on behalf of the
Grievant. (Agency ex. 6.)
By letter dated June 1, 2004, the Agency Director informed the Grievant,
“a decision has been made to remove you from employment effective June 12,
2004, based on patient abuse. I have determined that on December 2, 2003, you
inappropriately touched … [the Patient] in such a manner as to cause the
patient extreme distress.” The letter also stated:
In reaching this
decision, your written and oral replies were carefully considered, along with
the evidence developed. I have also considered other factors including your many
years of service, your past work record, the lack of previous disciplinary
action in your record, the seriousness of the offense with which you have been
charged, and the mitigating or extenuating circumstances which might justify
mitigation of the proposed penalty.
I have concluded
that the sustained charge against you is of such gravity and impact upon the
facility that mitigation of the proposed penalty is not warranted, that the
penalty of removal is appropriate and within the range of reasonableness, and
that it is necessary for the efficiency of the service. (Agency ex. 5.)
The removal was grieved. I was selected by the parties to arbitrate the
dispute. The arbitration hearing was held in Anchorage, Alaska, on February 15
through 18, 2005.
OF THE PARTIES
Position of the Employer
Patient who was the object of the Grievant’s abuse checked into the Urology
Clinic at 9:26 a.m. on December 2, 2003. He was taken into an examination room
by the Grievant for screening. The Grievant entered his notes and the
Patient’s vital signs into the computer between 9:51 and 9:57 a. m. Various
witnesses testified that it would take about five minutes to check a patient’s
vital signs. Therefore, the Grievant “had twenty minutes in which to sexually
abuse” the patient. (Br. p. 9.)
Patient reported the experience to the Urologist shortly thereafter, and, in the
course of his afternoon appointment with his PCP, he told the PCP’s nurse (LPN)
and the PCP. Later that day he made notes of the experience. The Patient’s
reports to VA personnel on December 2, 2003, his testimony before the
Administrative Investigation Board (AIB), and his testimony at the arbitration
were consistent and attest to the accuracy of his memory.
personnel who interacted with the Patient on December 2, 2003, noted in various
ways that following his session with the Grievant the Patient was very upset;
the PCP observed that this was contrary to the Patient’s usual demeanor.
testified that similar to doctors, the Grievant often wore a white laboratory
coat and carried a stethoscope around his neck; that, at times, he locked the
door of the examination room when with a patient; and that, at times, he would
remain in the room with a patient much longer than the time required to take
decision makers in this case based their decision on all the evidence, including
the report of the AIB, and did not remove the Grievant because of his color,
race, sex, disability, or union activity. In addition, the Director of the
Agency considered the Grievant’s defense and assessed the case against the
of the Union’s witnesses were present at the Urology Clinic on December 2,
2003, and so their testimony is irrelevant to the issue on whether this incident
took place. Some were clearly hostile to Agency management.
Patient was upset after his contact with the Grievant. This condition was
corroborated by several Agency personnel. His PCP, who was particularly familiar
with him, both noted that the Patient’s demonstration of distress was
different from his usual behavior and concluded that the distress was genuine.
was no proper reason for the Grievant to have examined the Patient’s
genitalia, to have tested his ability to have an erection, to touch his nipples,
or to inquire into the Patient’s sexual conduct alone or with his wife. This
conduct by the Grievant was “sexual abuse, pure and simple”; it violated his
“position of trust as a health care provider; and is “incompatible with his
continued employment at the VA”. (Br. pp. 20-2121.)
Position of the Union
Agency has the burden of proof.
only direct evidence is an allegation from a “mental patient” that was
controverted by the Grievant. “There is no eye-witness, documentary or
physical evidence to support the removal …”. (Br. p. 2.)
witnesses indicated that it “is highly unlikely” that a patient suffering
from erectile dysfunction could “attain an erection in a clinical setting”.
(Br. p. 3.)
AIB “found that the evidence did not support … [the Patient’s] allegation
of nipple manipulation”. The “Patient’s lack of credibility regarding the
allegation of nipple manipulation casts doubt as to the credibility of the
allegations regarding penis manipulation.” (Br. p. 3 and p. 4.)
Grievant was authorized to do bladder scans; therefore, “there is no substance
to the Administrative Board of Investigation [sic
throughout] allegation that … [the Grievant] performed work outside of his
scope of authority. (Br. p. 4.)
Agency has no policy on locked doors; the Grievant “could not have violated a
non-existent policy.” (Br. p. 4.)
Grievant has “no prior history of disciplinary problems or misconduct of any
type”, and has received “excellent” performance appraisals. (Br. pp. 4-5.)
Patient lacks credibility. He had a prior encounter with Grievant and the
Grievant had “adverse emotional reaction as a result of [the Patient’s]
racist behavior”. (Br. p. 5.) The accuser is “a mental patient at the Alaska
Veteran’s Administration Health Care System”. (Br. p. 6)
Patient was not shown to be competent to testify as required by Chapter 5,
Section B (4) of the VA Handbook on Administrative Investigations. He has been seeing a
VA psychiatrist “for approximately 13 years for mental health reasons”. The
AIB “failed to provide any evidence” from the psychiatrist regarding the
Patient’s competency to testify. (Br. P. 6.)
Memorandum 11QM Section 4, requires that before a patient can testify, the
Administrative Board of Investigation will consult with the patient’s
(Br. p. 7.) There is no evidence AIB consulted with the Patient’s physician.
AIB was not fair and impartial. It lacked objectivity. The Chair had “been in
contentious Union disagreements with the Grievant”. “Neither the Convening
Authority, the Risk Manager (responsible for training members), nor the Chair
seemed to be aware that the Chair’s appearance of a lack of impartiality in
this matter should have resulted in … [her] removal.” (Br. p. 8.)
AIB was inadequate. The Handbook, Chapter 3, Section B 1-6
“requires that the Convening Authority for the Administrative Board of
Investigation is required to appoint members with abilities and objectivity, and
members should not have a personal interest or other bias with respect to the
investigation. Additionally, non-voting staff personnel could have been detailed
to assist the AIB where appropriate skills such as a psychiatrist or impotency
expert could speak to the improbability of the charges.” (Br. p. 8.) “One of
the board members should be similar to the ‘subject’ in training and
experience” but none was. (Br. p. 9.)
Board’s report was not certified as is required by “VA Handbook Section D
“…[T]herefore [it] lacks credibility.” (Br. p. 9.)
is represented in the Report as fact. “The statements or testimony of … [the
Patient’s PCP, the Urology Care Manager, and the LPN assigned to the PCP] are
relating hearsay information from the accuser …. They also make statements the
AIB used to present a preponderance of analysis that dissolves into an analysis
of presumptions that take the place of proof.” (Br. p. 9.)
first conclusion of the AIB is “based on false and misleading statements”.
“The Administrative Board of Investigation has falsified evidence in their [sic]
report.” (Br. p. 11.) The supporting evidence for Conclusion 1 misstates the
Patient’s testimony regarding his pants, characterizes a statement of the
Urologist in such a way that his statement about what the Patient believed is
characterized as if it was the physician’s own assertion, and falsely asserts
that the two doctors who were involved “testified to the veracity of the
veteran’s account.” (Br. p. 11, quoting AIB report, pg. 3 #3.)
second conclusion “and its analysis are not sustained and are indicative of
the absurdity of the entire charge.” (Br. p. 11.)
the Grievant was trained and authorized to perform bladder scans, the AIB’s
third conclusion that he worked outside the scope of his duties is false.
4, [sic] is merely a statement of belief and opinion which is not
supported by evidence or analysis as required by VA Handbook 0700” and,
therefore “is entirely baseless”. (Br. p. 12.)
The Union asserts, “The Agency
has failed to meet its burden of proof with the Administrative Board of
Investigation [sic]”. (Br. p. 14.)
In the section that concludes its
closing argument, the Union states:
The Agency failed to meet its burden of
proof in the Arbitration. Under the Master Agreement, Article 13, Section 1
unit employee will be subject to disciplinary action except for just and
sufficient cause. Disciplinary actions will be taken only for such cause as will
promote the efficiency of the service.”
The Agency has failed to prove by a
preponderance of evidence that they [sic]
had just and sufficient cause to remove Grievant … from his position as Health
Union closed its argument with the following:
AGENCY HAS FAILED TO MEET ITS BURDEN OF PROOF WITH THE ADMINISTRATIVE BOARD OF
this case the AIB's preponderance of evidence dissolves into an analysis of
presumptions that take the place of proof because the AIB believed in the
confabulation of arousal described by … [the Patient] during an alleged
genital exam, when he is being later examined for erectile dysfunction or
impotence by … [the Urologist]. There is no genuine issue as to any material
fact from which the AIB could have determined … [the Grievant] conducted a
genital exam, because it did not occur and there were no witnesses. The
inadequacies of the AIB report itself exhibit a superficial review rendering the
AVAHSRO’s fact-finding procedures negligent and outside of the score [sic]
of all the references cited because they were distorted, misinterpreted, and
misjudged. More fundamental inadequacies lay at the heart of the procedures used
by the AIB. Given the circumstances of this case, it would be hard-pressed to
imagine adequate fact-finding procedures considering their use of illegitimate
criteria and making conclusions outside of the guidelines of the VA Handbook
0700 not the least of which would include the following indifference to good
faith compliance with VA and federal laws. (Br. pp. 14-15.)
Agency terminated the Grievant for “patient abuse”; specifically, that he
“inappropriately touched … [the Patient] in such a manner as to cause the
patient extreme distress.” The Union challenges the removal on both
substantive and procedural grounds. The substantive
challenge addresses the credibility and mental health of the accuser, the
Grievant’s denial of the allegations made against him, his position as an
officer of Local 3028 of AFGE, and his positive work record. The
procedural criticism centers on the Administrative Investigation Board, its
composition, methodology, and conclusions, as well as the degree to which the
Agency and the AIB observed the requirements of the Department
of Veterans Affairs publication VA
Administrative Investigations Handbook,
VA Handbook 0700.
specifics of the Patient’s allegations against the Grievant follow.
Patient testified that on December 2, 2003, he arrived at “about 9:30 plus or
minus five minutes” for a 9:45 follow-up appointment with the Urologist. The
Patient sat in the waiting room for “less than five minutes” when the
Grievant called him into an examination room. After introductions, they entered
the room, the Patient was seated, and the Grievant asked routine questions
(e.g., “What are you here to see the doctor for?”). The Patient responded
that he was here for a follow-up to monitor medications, receive results of
tests, and to consult with the Urologist about a “sexual dysfunction”
problem. After “about five to ten minutes”, the Grievant locked the door
(which he had closed earlier) and put on latex gloves. The Patient continued:
he asked me if I had ever done a testicular exam on myself. And I told him, Yes,
I had”. “Have you ever masturbated?” I said, “Yes”. You know, I was
honest with him. And then I believe right then he asked me, “OK, well, stand,
take your pants off and your shorts and let them fall to the floor. And I did
that right at the location of the chair next to the desk .… [Next] he did what
I recognize is a testicular exam, feeling the testicles, that type of thing.
Then he started stroking me on one side and then the other side [of my penis]
and I started to gain an erection from that. I was very uncomfortable when that
happened, but he told me not to worry, this was routine, and try to relax. ***
And then, just before he stopped, he reached-- you know, I did gain an erection,
I gained an erection and then as the erection went down a little bit, then he
reached underneath it and then with the flat of his hand, like this [gesturing],
to try to stimulate it again to make an erection again. And it did. *** I was
uncomfortable then, and I, but I let it happen. I thought this was supposed to
happen. I—that’s what I thought was, I thought he was wi--you know, what he
was supposed to be doing.
took my vital signs] after the exam, after he told me to put my pants back on
and I could take a seat and then he put the cuff on my arm for the blood
pressure and the thermometer in my mouth and took my vitals.
Later in his direct
testimony, the Patient was asked, “At any time during the period that you were
in the examination room where you and … [the Grievant] were alone with each
other, did he touch your nipples in any manner?” He responded:
He did. He did that--it was either while I was still hooked up to the vital sign
machine or just after he had taken it off. I believe it was just after he took
it off, as he was walking past me to go to the chair, he reached over and
fondled my nipples, like that [gesturing], and he said to me, “Sometimes this
can stimulate you”. And my response to that, and I remember it well, because
my wife likes to do that, OK, and I for some reason have this fetish where
it’s irritating to me. And I told him that.
next events are not disputed.
Patient returned to the waiting room and at 10:05 a.m. started his session with
the Urologist. (Agency Ex. 3, Tab 8, p. 6.) As that session drew to a close, the
Patient addressed the matter of the intake session. In a letter written on
December 3, 2003, the Urologist stated:
morning clinic of 12/2/03 I saw a patient by the name of … [the Patient] for
followup [sic] of erectile
dysfunction. During the course of this interview, the patient asked me if I was
aware that … [the Grievant], who had done his intake interview, had performed
a genital exam on him and had attempted to manipulate him in a way that the
patient felt was to cause an erection. He asked if this was standard procedure.
I informed him that it was not and I would look into the matter. (Agency Ex. 3,
Urologist spoke about the matter to his nurse, she apprised the Surgery Clinical
Nurse Manager and, since the Patient was scheduled to see his Primary Care
Provider (PCP) that day at 1:00, the PCP. During that afternoon session, the PCP
raised the issue. At the end of the afternoon appointment, the Surgery Clinical
Nurse Manager spoke to the Patient. Both the PCP and the Surgery Clinical Nurse
Manager raised the matter on their initiative.
Union argues that given his erectile dysfunction, the accuser was “unlikely to
attain an erection in a clinical setting” (Br. p. 3), that he was a “mental
patient” (Br. pp. 2 and 6), that he was not shown to be competent to testify
before the AIB, and that, in a previous encounter with the Grievant, he had
manifested racist behavior (Br. pp. 5-6).
Union characterizes two witnesses as “expert witnesses”, addresses their
opinions about a person with erectile dysfunction achieving an erection in a
clinical setting, and argues that their testimony indicated the “unlikelihood
of … [the Patient’s] allegations”. (Br. p. 3.)
of … [the Urologist] stated that … [the Patient], in his condition of
suffering from erectile dysfunction, is highly unlikely to attain an erection in
a clinical setting. Giving more meaning to this medical expert of erection
dysfunction, … [the Urologist] made the most material statement of the entire
investigation when he says [sic],
“but I … don’t think that you can physically manipulate somebody in such a
way to cause them [sic] an erection in
the setting of an exam room. Most of us are going to be far to [sic] inhibited to get one.” (Br. p. 3.)
internal quotation in the above passage came from the Urologist’s testimony
before the AIB. (Agency Ex. 1, Tab 2, pg. 27, ll. 16-19.) The Urologist who had
been called by the Agency was not as definitive in his testimony at the
arbitration. My notes indicate that during cross-examination, the Urologist was
asked whether it was likely or unlikely that the Patient could be stimulated to
an erection in the examination room setting. His response was that it was
possible to have an erection occur, given the Patient’s testosterone
treatments. He stated, “In fairness, it is possible”.
second person characterized by the Union as an expert witness was a VA Urology
nurse. She testified that it was possible for someone to be manipulated into an
erection in a clinical setting if that person does not have low libido and low
testosterone; however, it was highly unlikely to achieve it with someone who had
Patient testified without challenge that his problem was not in achieving an
erection, but in sustaining one.
the testimony of the patient that his problem was in sustaining an erection and
that of the Urologist that given the Patient’s testosterone treatments an
erection in a clinical setting could occur, I must conclude that the Patient
could have been stimulated to an erection as he described.
Union asserts, “ The only direct evidence presented by the Agency to support
the removal is that of a mental patient …”. (Br. p. 2.) It argues, “ The
VA Handbook on Administrative Board of Investigations Chapter 5, Section B (4)
requires the attending mental health physician or other evidence as to the
competency of the witness” [sic].
(Br. p. 6.)
Patient has received health care services from the Agency’s mental health
clinic. The Union brief refers to testimony of the Surgery Clinic Nurse Manager,
who—after speaking to the Patient on December 2, 2003—arranged for him to
see the Agency psychiatrist he had seen in the past. (Brief p. 6.) The Patient
testified that he had been diagnosed with depression, had been seeing an Agency
psychiatrist for this condition for approximately thirteen years, and had been
taking the medication that had been prescribed for that condition. There is no
other evidence in the arbitration record about the Patient’s mental condition.
my view, the fact that the Patient has received treatment for depression from a
mental health clinic does not require a conclusion that he was mentally or
to his uncontroverted testimony, the Patient has worked for the Federal Aviation
Administration for some 36 years. At the time of this testimony, he was a
Systems Control Specialist, working in Maintenance Control, a position that
requires him to work with complex technologies. I observed no manifestation of
aberrant cognitive activity or conduct in his appearance before me. To the
contrary, he appeared to be intellectually alert.
Although I am not a mental health professional, I find no reason in the evidence
or in his appearance before me to consider the Patient a “mental patient” in
any pejorative sense of that phrase. I see no reason to conclude that he was an
incompetent witness merely because he received health care services from the
Agency’s Mental Health clinic. I draw the same conclusions about the Grievant
who, like the Patient, had had occasion to require the services of that same
Union charges, “The Administrative Board of Investigation has violated VA
Handbook 0700 Chapter 5, Section B (4) regarding the competency of the
witness” (Br. p. 7.) It argues, “Testimony of … [the Surgery Clinic Nurse
Manager] supports the need for review of the credibility [sic
(competency?)] of … [the Patient] when she stated that … [he] would see …
a psychiatrist, because he had seen him in the past. Tied with the erectile
dysfunction and depression for which he was seeing … [the Urologist] the AIB
should have demanded a mental competency opinion (VA Handbook 0700, Section
4)”. (Br. p. 6.)
cited passage from the Handbook leaves the matter to the Board.
Therefore, if the AIB did not have reason to believe that the Patient was
mentally incompetent, there would be no violation of the Handbook for the Board to proceed without obtaining evidence of his
Charge of Racism
his testimony before the AIB, the Grievant was asked. “Why do you think …
[the Patient] would say that you did a genital exam on him?” The Grievant
responded, “I don’t know, I keep trying to think, you know. I don’t know
if it’s because of his marriage or he had a fantasy or - - you know, I just
don’t know. Again, he looked like Mark Furman [sic],
he looked pretty mean.” (Agency Ex. 1, Tab 3, p. 18, l. 25-p. 19, l. 5.)
this point, the Grievant’s race becomes relevant to this analysis. He is an
Chairperson of the AIB addressed the Grievant’s reference:
… I’m not sure I understand the reference to Mark Furman [sic].
Could you explain that to me?
You know that detective in the OJ trial?
I’m not sure I remember him.
How can I put it. [sic] He was the
mean looking detective that was supposed to have planted this glove or evidence
to convict OJ.
Q. Does … [the Patient] look like Mr. Furman [sic]?
A. Oh yes
ma’am. To me he do. (Agency
Ex. 1, Tab 3, p. 1, ll. 6-14.)
some of the Agency personnel involved with the removal took the reference to
Mark Fuhrman literally and were puzzled since they found no physical comparison
between the Patient and the detective,
I understood the Grievant’s testimony to be that the Patient looked at him in
a mean and hostile way that indicated to the Grievant that the Patient, like
Fuhrman, would likely “plant” evidence to aid a “conviction”. Two Union
officials, both African American, testified that in their community a “Mark
Fuhrman” was a person who was so hostile to blacks that “planting
evidence” could be expected. 
Union brief addresses the matter as follows:
The accuser …
had an earlier encounter with Grievant at the work-out gym[,] Alaska Club.
According to testimony, … [the Grievant] had an adverse emotional reaction as
a result of racist behavior by … [the Patient].
at the Alaska Club between … [the Patient] and … [the Grievant] was severe
enough that … [the Grievant] had recollection of it when … [the Patient]
appeared for his urology visit at the Alaska VA.
Union contends, “ … [The Patient’s] racist tendencies show lack of
trustworthiness regarding his testimony toward the Grievant …”. (Br. p 6.)
Patient testified that although he was not a member, he had been at the Alaska
Club in the past. He also testified that he had not seen the Grievant there.
Grievant’s defense is based in significant part upon his report of having seen
the Patient at the Alaska Club, some 2 to 3 months before December 2, 2003. At
the arbitration, the Grievant testified as follows:
Well, I walked into the club. I checked and everything because you have to use a
key card and I went to get a towel and I passed by the area where he was at, and
I went to change my clothes and get ready to do my workout and I looked over
there, and I said, “Oh, no.” And the guy looked just a – the scare, the
shock was (unintelligible) my body. He looks like Mark Fuhrman. I hope it’s
So when you say, “He looks like Mark Fuhrman”, what are you saying?
What I’d say it is, he looked like a racist to me.
And how did you get that feeling?
I just got a shiver and that cutting edge look he have me.
So you all had eye contact, I take it.
OK. And being a person of color, had you ever experienced this type of thing
Yes, I have.
So you are familiar with this type of interaction. Correct?
Yes, I am.
There has been some debate about what the term “Mark Fuhrman” means, but why
don’t you go ahead and tell us, for the record.
To me, when I say “Mark Fuhrman”, I saw him at the Alaska Club, I got that
cutting edge look there, and it just sent shivers up and down my, you know,
body, and when he came here to the facility and I had to check him in, all I
could think of was, “Trouble”.
OK. It’s fair to say, Mark Fuhrman was a detective in the OJ Simpson trial,
I was asking what Mark Fuhrman personally meant to you.
Oh. What he personally meant to me is, like I said, “Trouble”. I just had a
negative feeling that either something’s gonna happen here, either I’m gonna
be accused of something, or he’s gonna, somebody’s gonna try to hurt or harm
me, you know. I was just scared. I was afraid.
in the direct examination, the questioning returned to the Alaska Club:
OK. So let’s fast forward. So you see … [the Patient] in the Alaska Club,
And when you make eye contact, you got that Mark Fuhrman feeling. What happened
I was thinking about leaving the facility, and then I said, No. It’s crowded
and there are some people there. I’ll just go on and do my workout real quick
because he was leaving anyway. And that was it.
OK. And so how long would you say that this encounter lasted?
Two to 3 minutes.
And when you give the time period, 2 to 3 minutes, we’re talking about
starting at what point and ending at what point?
From the eye contact until the time he left.
OK. Did you see him after the incident at the Alaska Club?
No, I didn’t.
Up until the examination.
moment or two later:
And it’s my understanding you came into contact with … [the Patient]. Is
OK. Would you please describe from the beginning when you saw … [the Patient]
and what was your reaction?
Well, my reaction was, when I first saw him, again, I got that shock and that
nervous feeling and I said to myself, “I hope he wasn’t the patient whose
check-in sheet I had because I kind of got a bad feeling about his, I don’t
know how this is going to turn out.
So when you said, “check-in sheet”, what did that mean?
That’s the sheet where the check-in and mark the time and do any notes on
Grievant was then asked:
Do you know when his appointment was for?
9:45. Did you see him before 9:45?
When you say, “See him”, do you mean take his vital signs?
testified as follows about his interaction with the Patient:
Took him back
to the exam room where we do the vital signs at, screening at. Then I introduced
myself, then I greeted him, asked how he was, everything, and sat down in the
chair and he had that look as if he didn’t want me to screen him or touch him
or take any vital signs or anything. And when I say, “touch” I mean put the
blood pressure cuff on him. In other words, he looked as if he didn’t want me
to be around him.
OK. Why didn’t—Did you go get somebody else?
No, I didn’t.
Did you consider doing that?
I considered it, yes.
And why is that?
Because I was very shaky and afraid and upset, but the reason I didn’t get
anyone is because like most patients, I thought he would talk about the Club,
you know, how’re your workouts going, and my workout going, but, no, it
didn’t end like that. It was that mean, staring look.
I did his vital
signs. He sat there and started talking about his sex life, and what have you.
What did he say, as best as you can remember?
He said that he was depressed, and his wife was depressed because they didn’t
have an active sexual—how can you put it?—sexual life and he couldn’t get
an erection. ***
How long was the conversation before and after the vital signs?
Before, 5 to 6 minutes.
cross-examination, reference was made to the incident at the Alaska Club, and
then the following exchange took place:
And you immediately thought at that encounter that lasted 2 to 3 minutes that
… [the Patient] was going to hurt or harm you?
Yet when he came in for his appointment on December 2nd two thousand
and three, you still took him back to the examination room, didn’t you?
Yes, I did.
You never called for any other assistance from any other co-worker during the
examination of … [the Patient]?
No, I didn’t.
in the cross-examination:
Now, page 12 of your testimony [before the AIB]. You’re talking about Mark
Fuhrman. And on line 17, you said, “Mark Furman [sic].
I mean he’s scary looking.” So you are referring to Mark Fuhrman being scary
No, I’m referring to … [the Patient].
So you’re referring to … [the Patient] was scary looking? And how was he
Just a mean look. It frightened me.
… [The Patient] has a mean look?
He had a mean look that frightened me.
So you’re pretty scared of … [the Patient], is that right?
I was afraid, yes.
And you admitted that you closed the door when you brought … [the Patient] in?
I admit to that.
Even though … [the Patient] was scary looking to you and he looked -- reminded
you of Mark Fuhrman- - you brought him in and still closed the door, is that
On page 19 [of the AIB report]. You’re stating, line 4 and 5, again, “He”
meaning … [the Patient] “looked like Mark Furman [sic].
He looked pretty mean.” So, you’re saying … [the Patient] looked pretty
mean, is that right?
And line 13 and 14, the question by … [name given] is “Does … [the
Patient] look like Mr. Furman [sic]?”
And number 14, “Oh yes ma’am. To me he do.
That’s your testimony?
So, you’re stating that you were in this closed door, and in this examination
room with … [the Patient] for a total of -- I believe you said, “six
minutes”, is that correct? Total time?
I said about 7 minutes.
Alright. Seven minutes. Total time? OK.
one but the two men who were present in the examination room shortly before
10:00 a.m. on December 2, 2003, knows what happened when they were alone
together in the examination room at the Alaska VA Clinic. Each of the two
participants presents an account that is so different from the other that both
cannot possibly be true. In my view, the Patient is the more credible witness.
My reasons follow.
Although I consider the Grievant’s basis
for determining that the Patient was a racist as being subjective to the
extreme, I do not have the life experiences that could hone one’s perceptions
on this subject to the point that a person’s racist intent could be inferred
from a relatively brief, non-verbal observation. Therefore, I accept the
Grievant’s assessment of the Patient from the Alaska Club experience. In the
Grievant’s eyes, at least, the Patient was a racist. The Grievant perceived
the Patient’s demeanor to be mean, and this caused the Grievant great anxiety.
The Grievant was fearful. He thought the person who turned out to be the Patient
meant trouble; that he could cause him harm.
Given the Grievant’s description of his
state of mind with regard to the Patient, I am bewildered by the following. When
the Grievant saw the Patient at the Clinic on December 2, 2003, the anxiety of
the Alaska Club experience returned, “I
got that shock and that nervous feeling and I said to myself, ‘I hope he
wasn’t the patient whose check-in sheet I had because I kind of got a bad
feeling about his, I don’t know how this is going to turn out.’” Yet, the
Grievant tells us, he did not ask that some other clinic employee check the
patient in nor did he ask for assistance in any other way. Instead, he took the
person whose very presence was causing him extreme anxiety into an examination
room and closed the door behind the two of them.
Given the conclusions the Grievant had
drawn about the Patient, I am also bewildered as to how the Grievant could have
expected the Patient merely to engage in such small talk as “How’re your
workouts going?” Moreover, if the Patient looked “as if he didn’t want me
to screen him or touch him or take any vital signs or anything”, I am
confounded how the Grievant’s assessment of the Patient as a racist could
persist when the Patient was willing to reveal to a person of color “that he
was depressed, and his wife was depressed because they didn’t have an active
sexual—how can you put it?—sexual life and he couldn’t get an erection”.
Another key aspect of my conclusion about
credibility is the conduct of each of the two on December 2, 2003. In my view,
the Patient behaved in a manner that is consistent with his account of what
happened. He indicates that although he was embarrassed during the screening, he
complied because—at the time—the procedure seemed to him to be related to
his urology appointment. After the screening, he did not rush out to file a
complaint as one might expect from someone intent on damaging an employee’s
standing. He expected the Urologist to address the matter in the course of his
session and raised the matter only when it became clear that the physician was
ending the appointment without addressing the earlier event. I also note that
the PCP and other Agency personnel—not the Patient—raised the matter when
they interacted with the Patient later that day. In my view, the Patient’s
actions were consistent with what one would expect from a concerned and upset
patient. They were not consistent with the actions of a racist intent on
fabricating a charge to harm a person of another race.
In contrast, the Grievant’s account of
December 2, 2003, does not appear to me to be consistent with his report of how
deeply his reported encounter with the Patient at the Alaska Club affected him
both at the Club and at the Clinic.
Further, on the matter of credibility, the
Patient’s primary care provider, a physician who had known the Patient over a
period of time noted that on December 2, 2003, a person who “generally [was]
pretty cool and calm … was visibly shaken”. (Agency ex. 1, Tab 4, p. 38, ll.
8-9.) “His demeanor was very upset, he was shaky, he was trembling, his voice
was trembling. He looked like he was in some emotional distress.” (From the
same source, p. 34, ll. 2-4.) Other Agency personnel made similar comments when
describing the Patient’s demeanor on that day after he had had the session
with the Grievant. This consistently reported physical reaction suggests that if
the Patient’s report was fabrication concocted by a racist, the Patient was a
most talented actor.
There is suggestion in the record that the
whole matter may have been the fantasy of a mental patient. If so, in the
Patient’s mind, the event he reported had taken place; therefore, the reaction
noted by the PCP would not have been dissembling. However, as I have noted,
there is no evidence that would indicate that the Patient was delusional.
Indeed, both physicians who testified reported that they did not consider the
Patient to be delusional.
I am also concerned about the following.
The Grievant’s discussion about the Alaska Club (see pp. 22 ff, above) was
prompted by a question that asked him to tell of his first
contact with the Patient. Later in the examination, the following exchange took
Q. Did you see him after the incident at the Alaska
Club? Did you ever see him at all?
A. No, I didn’t.
Q. Up until the exam?
following exchange is from the Grievant’s testimony before the AIB:
Chair]: How often did you see him at the Alaska Club?
Witness: Oh, it wasn’t that often.
Chair]: Like once a month or once a week or. . . . .
Witness: Oh, I didn’t go that often. So I may have seen him two or three times
there. (Agency ex. 1, Tab 3, p. 23, ll. 11-15.)
There is no dispute that the Grievant and
the Surgery Clinic Nurse Manager spoke about the Allegations on December 3,
2003, but the Grievant indicates that they spoke to one another on December 2nd
as well. The evidence indicates that the two did not address the matter until
December 3rd, and so the Grievant’s memory of when their first
conversation on the subject took place is likely in error. In any case, it is
the content of that first conversation on the subject that is important. The
record indicates that after the Surgery Clinic Nurse Manager spoke generally of
the Allegations without identifying the source, the Grievant left and shortly
thereafter returned to identify the Patient by name. In a note dated December 3,
2003, at 7:45 a.m., the Surgery Clinic Nurse Manager wrote:
with … [the Grievant] briefly, informed him that there had been an allegation
made towards him. Told him we would meet this morning with a union
representative, … a management
representative, … [the Grievant] and myself. … [He] agreed to this meeting.
He left my office and returned a few minutes later with his patient paperwork
from yesterday. … [He] thumbed through the paperwork, came to the patient’s
name that had made the allegation and said, “This is the guy who made the
allegation.”. I asked, “Why would you think that. [sic]”
…[He] replied, “Because I told him he’d have to go back to his primary
care provider to have his testosterone addressed.” [He] then stated, ”I
looked at the notes and if there was something wrong it would have been in
…[the Urologist’s] note.” “The doctor didn’t say anything in his
note.” (Agency ex. 3, Tab 3.)
this note correctly reflects the Grievant’s first reaction, as it seems to do,
it was not until his later meeting with his Union representative present that he
advanced the explanation that after the Surgery Clinic Nurse Manager told
him that an allegation had been made, he reviewed all the patients he had seen
on December 2nd, went into the computer records and noted the entry
made by the LPN on the Patient’s record that spoke of the Allegations in some
detail (Agency ex. 3, Tab 8, p. 4), and, by that means, learned of the
There is dispute about how long the
Grievant and the Patient were together in the examination room on December 2,
2003. As noted, the Patient is recorded as having arrived at the clinic at 9:26
a.m. (Agency ex. 14.) In his testimony, he said that after his arrival at the
Urology clinic, he waited about five minutes and then was called into the room
by the Grievant. The Grievant testified that they did not enter the examination
room until 9:45, which was the time of the Patient’s appointment. The page of
the computer record that presents the Grievant’s input shows that the entries
for the Patient’s vital signs were made at 9:51 and that the Grievant’s
summary notes were entered at 9:57. (Agency ex. 3, Tab 8, p. 6.) The Grievant
testified that these final notes were made after the Patient had left the room.
If the Patient’s account is correct, the
two men were in the examination room for at least twenty minutes; if the
Grievant’s account is correct, they were together for some six minutes. The
computer page indicates that the “visit” was 9:45, but the Urology Nurse, a
Union witness, testified that that line entry was computer generated and that it
only indicated the time for which the visit was scheduled. In short, we are left
with a credibility determination once again, and, as the discussion in the
preceding section indicates, I have determined the Patient to be the more
credible of the two witnesses.
The Union notes (Br. p. 10) that the AIB
Report states that the Patient said, “… just before I pulled my pants off,
and my erection as going down,” and contends, “This is a false and
misleading statement by the Administrative Board of Investigation” since the
Patient had actually said, “… just before I pulled my pants up”.
Since the full transcript of the Patient’s testimony was part of the report,
and since line (but not page) reference to the source was made in the Board’s
statement, I take the substitution of the word “off” for the actual word
“up” to be a typographical error. Indeed, I do not see how the use of the
wrong word adversely affected the Grievant, and the Union did not further
explain its concern about this anomaly.
Union’s Objections to the Work of the AIB
discussing its concerns with the work of the AIB in its post-hearing brief, the
Union presented a summary headed with the words, “The Basis for
Concluding the AVAHSRO AIB’s Board
Membership was biased [sic] and the
Report Negligently Inadequate…”. (Br. p. 13.) In several places in the
summary, the Union makes reference to the Handbook.
I am concerned that the Union did not question the members of the Board who
testified about their understanding of the Handbook
and its role in their deliberations, or that during the hearing it did not
otherwise address its concerns about the Handbook.
Had that been done, the Agency would have had opportunity to address the matter,
and I would have the benefit of having input from both sides in this dispute.
the paragraphs below, I precede my remarks with the relevant portion of the
a. The AIB Chair should have removed
herself or been removed because of contentious dealing with … [the Grievant]
in his Union role as Vice President.
Chair of the AIB is a supervisor of Social and Behavioral Health
at the Agency. The Union charges that prior to her appointment to the AIB, the
Chairperson had “been in contentious Union disagreements with the Grievant …
who held the position of Vice-President of [the] Local…” (Br. p. 8). The
specifics behind this charge were provided during the Grievant’s testimony: at
some time in the past, while representing a disciplined employee, the Grievant
sought on more than one occasion to set up a grievance meeting with the Chair in
her role as Acting Chief of Social Work. She avoided his requests for a meeting
and, in an e-mail, he accused her of acting in bad faith. The Chair testified
that there was procedural disagreement about the grievance and that in the
course of the dispute, the Grievant had, indeed made the accusation of bad
faith. She dated the event as having taken place in 2002, and testified that she
had forgotten that the Grievant had made such an accusation. She also testified
that she bore no ill will toward him.
is my view that it would have been better if none of the members of the AIB had
any prior history with the Grievant; however, that goal might not have been
possible given the relative size of the facility and the Grievant’s prominence
in the Union. However, the Union presented no evidence to show actual bias, and
I fail to see how one instance of Union difficulty with a management
representative during the processing of a grievance and/or one instance in which
a Union official decided to accuse a management official of bad faith amounts to
a proof of bias on the part of that official. Moreover, the record does not
indicate that the Union took any action on the matter. 
b. … [The Grievant] is a Health
Technician and no other Person on the AIB was of equal training and experience
as required by VA Handbook 0700.
do not read the Handbook
that the AIB include a member of equal training or experience, as the Union
argues in its summary (Br. p. 13), but presents less strongly earlier in its
discussion (Br. p. 9). The relevant provision that appears within the portions
cited by the Union (the Handbook,
Chapter 3, Section B, 1-6) states the matter as advice but not as a requirement,
“Including at least one member on the AIB with training and experience similar
to that of a subject of the investigation can significantly enhance the quality
and credibility of the investigation”.
(The Handbook, Chapter 3, Section B,
subsection 2, a.)
c. No non-voting experts were used to
seek probability determinations.
Union states, “The qualifications of the AIB to ascertain the victims [sic]
claims is [sic] highly suspect because
of their failure to seek non-voting staff expertise that would have ascertained
the credibility of the parties involved and the improbability of the charges.”
(Br. p. 9.) In my view, judgments about credibility are made by laypersons in
all walks of life; more particularly, making determinations about credibility is
often required of juries in both civil and criminal cases. Consequently, I
cannot agree that the fact that the AIB did not assign experts to advise them on
credibility renders the Board’s ability to assess the Patient’s claims
d. AIB members did not follow the VA
Handbook 0700 on investigations drawing conclusions and explaining legitimate
criteria used as a basis of determinations.
appear to be deviations by the Board from the requirements of the Handbook.
e. Conclusion 4 states … [the
Grievant] did a genital exam and did not even make an attempt to describe a
basis of determination.
my reading, the Board’s fourth conclusion was not that the Grievant had
performed a genital exam on the Patient—that had been addressed in Conclusion
1. Conclusion 4 was that by conducting that exam, the Grievant “performed
actions outside his scope of practice”.
f. The Convening Authority did not
certify the AIB report.
is no indication in the arbitration record that the Convening Authority ever
certified the report of the AIB as the Handbook
appears to require.
g. Testimony of … [Surgery Clinic
Nurse Manager] about … [the Patient’s] psychiatric past was a lead not followed
up on that required competency and credibility determinations.
… [T]he psychiatrist, treating … [the Patient] was a material witness and
not part of the AIB technical support or the arbitration.
… [The Urologist’s] statement that he made stated he did not believe anyone
could cause someone an erection in an exam situation. A material statement not
given any consideration by the AIB report is negligent.
g, h, and i of the Union’s summary have been addressed in the body of this
j. The AIB did not review medical
records of … [the Patient] and they had the opportunity.
is no evidence in the arbitration record that the AIB reviewed the medical
records of the Patient; however, see footnote 10
k. The AIB gave significance to
illegitimate criteria that included hearsay from witnesses who repeated what …
[the Patient] told them and used unsupportable perceptions to formulate
assumptions of guilt against … [the Grievant] based on locked doors, length of
time it takes to do exams, and a preponderance of inference about his work.
are not improper of and by themselves. The AIB was an investigative body and
spread out its reasoning in the report for all to see and assess.
l. AIB did not test the improbability of
… [the Patient’s] story with any analysis or records screen.
is no indication in the arbitration record that the AIB conducted an “analysis
or records screen”.
m. The AIB did not explain how they
could ignore … [the Patient’s] allegation of nipple manipulation and say it
did not happen because it was not long enough.
assignment to the AIB regarding the nipple manipulation was to “fact find the
patient’s allegations [sic] that … [the Grievant] performed a nipple manipulation” on
him. (Agency ex. 3, Tab 11.) In its Conclusion 2, the AIB addressed that portion
of its assignment as if the statement had been “to fact find the patient’s
allegation that … [the Grievant] performed a nipple manipulation for
the purpose of causing an erection”. As I understand their conclusion,
they determined that a manipulation was done, but—because it was of such short
duration—it was not for the purpose of causing an erection.
n. The AIB tried to state that … [The
Urologist] said that … [the Patient] was examined improperly and he did not
say that because he was not there.
assume this item refers to the following passage from the AIB report, “ …
[The Urologist] and … [the PCP] both testified to the veracity of the
veteran’s account of the exam by … [the Grievant]”. (Agency ex. 1, Report,
p. 3.) The Union is quite correct, neither physician could attest to the
veracity of the Patient’s account because neither was a witness to the event.
Neither did. The lines that follow on page 4 of the Report state what the
Urologist actually said, but the Board’s conclusion on this point appears to
ignore that part of the Urologist’s statement that asserts, “I can’t say
what happened happened …”.
The AIB members did not know about the VA Handbook 0700 guidelines on
constructing conclusions and the necessary procedures to conduct a fair and
is no indication that the AIB knew of or followed the Handbook.
some of the Union’s criticisms of the AIB and its work appear to me to be
valid, I do not consider those flaws to be “harmful error”. Although the Union
identified shortcomings it perceived in the work of the AIB, the Union did not
show how the absence or the cure of the shortcomings would have “caused the
agency to reach a conclusion different than the one reached”.
during the course of the arbitration hearing, the Agency presented all the
elements it deemed supportive of its decisions, including most if not all of the
documentary evidence and, with the exception of two persons who were no longer
connected to the Agency, all witnesses who had appeared before the AIB as well
as all members of the Board itself. Indeed, at the arbitration, the Agency’s
presentation was subject to cross-examination and challenge by the Union. In
short, notwithstanding the decision of the AIB, the decision presented in this
Opinion and Award was based upon the arbitration record that was created in an
adversarial procedure in which the Grievant was represented by very able
the Position Description for the Specialty Clinic Technician (Agency Ex. 9, pp.
2-5) states among the position’s “Major Duties and Responsibilities” that
the Technician “Observes and assesses outpatient patients using physical
examination …”, no one claims that the “examination” that the Grievant
is alleged to have performed on the Patient on December 2, 2003, falls under
this reference. In his testimony, the Grievant has emphasized that he does not
do examinations. (Agency ex. 1, Tab 3, p. 5, l. 8; p. 27, ll. 20-21.) The
Grievant’s defense is not based on being authorized to perform examinations;
it is based upon his insistence that the genital examination addressed in the
Patient’s allegation did not take place. The Patient has testified that the
Grievant did conduct such an examination.
reasons explained in the foregoing discussion, I have determined that the
Patient is the more credible witness. Based on the preponderance of the
evidence, my conclusion is that the conduct complained of in the Patient’s
allegations did take place.
conduct for which the Grievant was removed was an impermissible intrusion on the
Patient’s body and privacy. It was improper conduct, as any health care
employee should have known. It is my view that given the serious nature of that
conduct, the Agency’s decision to end the Grievant’s employment was
justified even when one considers the length and the quality of his past service
as an employee there.
the evidence indicates that the Administrative Investigation Board did not fully
follow VA Handbook 0700, I am concerned that—other than challenging the
neutrality of the Chair of the Board (Un. Ex. 1)—the Union did not address
this matter at the arbitration hearing. Because this was not done, I was denied
the opportunity to hear counter argument from the Agency. In any case, as I have
addressed more fully in the body of this document, even if improper, the
Board’s procedure did not constitute harmful error.
reviewing the evidence and argument presented by the parties and pursuant to the
reasoning, considerations, and conclusions presented in the foregoing
discussion, it is my determination that the Agency has proven by a preponderance
of the evidence that it had just cause to remove the Grievant under the Douglas
The grievance is dismissed.
submitted on this the 8th day of June, 2005, by
 By arrangements made by the Agency, the hearing was recorded by Lindsey Meyers of Kron Associates, 1113 W. Fireweed, Suite 200, Anchorage, Alaska, 99503-1701. When, at the end of the hearing Agency Counsel indicated that a transcription would not be made, I informed the parties that based on correspondence with them, I had anticipated the creation of a transcript. Therefore, I had not followed my usual practice of recording a hearing when a transcript will not be created. I also informed them that, in the absence of a transcript, the record would—perforce—consist of the documentary evidence, my notes of the testimony, and my memory of the proceedings.
This dispute centers on an event at which only two persons were present. Each of the two persons has presented a report of that event that is markedly different from that given by the other. Thus, a determination of credibility had to be made. As I read my notes, examined the exhibits, considered each party’s arguments, and deliberated on the matter, I determined that I wanted to examine the testimony of the Grievant and his accuser more carefully. I ordered audiotapes of their testimony from Kron Associates and, upon receipt, reviewed the testimony by playing the tapes. Testimony from the arbitration presented in this Opinion is from my transcription of those audiotapes.
 The Grievant was present throughout the hearing. Over objection from the Agency, I allowed the Local Union President to be present as well, as a representative of the Local and advisor to Union Counsel. I informed the Agency that it could have a representative of the Alaska VA present throughout the hearing as an advisor to Agency Counsel. Agency Counsel declined.
 Previous to this (in the mid-eighties) the Grievant had been a patient and then an employee of the Facility. He is a veteran with a 100% disability. (Testimony of the Grievant.)
 I use ellipses marks (…) within a quotation to indicate omission of a portion of a sentence; I use three asterisks (***) to indicate omission of words within two consecutive sentences as well as to indicate an omission of a passage consisting of one or more complete sentences.
 The Urologist is not an employee of the VA, but is a member of a urology medical practice that provides professional services to the Agency under contract.
 In the cited portion of the transcript of the proceedings before the AIB, the Urologist identifies the first person he spoke to as “Koch”; the introduction to the testimony of the Manager reports that she is known by the name “Kotch”. (Agency Ex. 1, Tab 5, l. 17.)
 Agency Ex. 16. Numbered Memorandum 11QM-10, (PURPOSE: to provide the guidelines for compiling factual information upon which to base conclusions, recommendations, actions, or decisions) Section 4 PROCEDURE, subsection l:
In cases where the Board feels it is necessary to interview patients, the
AIB will consult with the patient’s physician (except in cases where the
physician’s conduct is at issue in the investigation) and request consent
from the patient’s legal guardian if necessary.
From the VA Handbook on Administrative
Investigations Handbook O700 (Handbook), Chapter 3, Section B:
NUMBER OF MEMBERS The AIB will generally be comprised of one to three
members, but larger boards are permitted. An odd number of members is
preferred to facilitate decision-making by the AIB.
QUALIFICATIONS OF MEMBERS The credibility of an administrative investigation
is heavily dependent on both the real and perceived competence and
objectivity of the members of the AIB and of the staff assigned to assist.
Convening Authorities shall therefore select individuals to conduct and
assist in investigations based primarily on their abilities and objectivity,
both actual and apparent.
Ability. The Convening Authority must ensure that the AIB, as a whole, has
sufficient expertise and capability to completely address the issues to be
investigated (or is otherwise able to obtain the required expertise). The
requisite abilities include knowledge of how to conduct and report AIs and
expertise in the subject matter of the investigation, potential sources of
evidence, and analysis of the evidence obtained. Including at least one
member on the AIB with training and experience similar to that of a
"subject" of the investigation can significantly enhance the
quality and credibility of the investigation. Where particular skills are
needed, non-voting staff personnel may be detailed to assist the AIB in any
Objectivity. The members must be objective and impartial, both in appearance
and in actuality. At least one member appointed to the AIB should be senior
or equal in standing to any individual whose conduct is being investigated.
Members should not have a personal interest or other bias with respect to
the investigation; should not have had direct involvement in matters that
are being investigated, and should not supervise or have close personal
relationships with any individual whose conduct is a subject of the
investigation. Individuals who had access to protected medical quality
assurance information, such as in a focused review or root cause analysis,
cannot be assigned to participate in an administrative investigation of the
appropriate the Convening Authority may detail staff directly to the AIB.
Detailed staff is subject to direct supervision by the Chairman. Such staff
may include professional investigators, technical experts, and
administrative support. Alternatively, the Convening Authority should
identify the offices that will provide necessary support to the AIB.
General / Regional Counsel will provide any necessary legal advice to the
Convening Authority and the AIB. Legal counsel should not normally be
detailed as staff to an administrative investigation. In highly complex or
sensitive cases, however, it may be appropriate to request that an attorney
be provided for detail as an AIB member or as staff legal counsel to an
investigation. Detail of staff legal counsel may be appropriate to provide
legal advice on issues, evidence, and analysis, or to assist in questioning
witnesses, working with witness counsel, or drafting the report.
ARRANGING FOR MEMBERS AND STAFF FROM OTHER SOURCES
qualified members and/or staff are not available within the Convening
Authority's organization, the Convening Authority must arrange for them to
be made available from other sources such as another facility, a VISN or
Regional Office, or the VA Central Office.
DESIGNATION AND FUNCTIONS OF THE AIB CHAIR
more than one member is appointed to an AIB, the Convening Authority must
designate one member to serve as Chair (in single-member AIBs, that member
assumes the authorities and functions of the Chair). The Chair's functions
and authorities include:
Supervision and direction of all investigation activities, including
planning, funding, travel, evidence collection, witness interviews and
b. Assignment of workload among members and assigned staff;
c. Obtaining additional support from the Convening Authority as
d. Coordinating completion of the investigative report; and
e. Deciding procedural matters on behalf of the
AIB such as those involving witness interviews and consideration of
evidence. The chair's decisions with respect to such procedural matters may
be overridden by a majority vote of the members.
 From the Handbook, Chapter 6, Section D, 2 and 3:
Review by the Convening Authority. Upon receipt of the IR, the Convening
Authority shall review the report, including exhibits, for compliance with
the Charge Letter, this Handbook, and other requirements. The Convening
Authority may request legal or other technical reviews of the report, and
may return the IR to the AIB for further investigation or clarification as
Certification by the Convening Authority. Within 30 days of receiving the IR,
or as soon as practicable thereafter, the Convening Authority shall certify
completion of the investigation. The Certificate shall state that the report
has been reviewed for compliance with VA Directive 0700 and this Handbook,
and that the subject of the report has been properly investigated. If more
than 30 days have elapsed since receipt of the report, the Convening
Authority shall document in the certificate any reasons for the delay (e.g.
time required for additional investigation, legal review, etc.). In the
certificate of completion, the Convening Authority may add, delete,
otherwise modify, or comment upon the findings of fact, conclusions, or
other matters in the report, and may append additional exhibits or
attachments. Any modification of the report shall include a concise
statement of the reasons therefor. The Convening Authority may also note in
the certificate any corrective action that has been taken regarding the
matter investigated as of the date of the certification. Completion of the
investigation does not preclude further inquiry or action based on the
matter reported. Once the investigation is certified complete, the Convening
Authority should provide written notice that the investigation is complete
to AIB members, subjects of the investigation, other addressees of the
Charge Letter, and other interested persons or organizations as appropriate.
 I know from pre-hearing telephone conferences and e-mail exchanges with counsel of both parties that the Union had requested the Patient’s medical records. It is my understanding from those communications that the records were supplied to the Union both as Appendix H to the AIB report and subsequent to Mr. Goldsmith’s request. Other than items related to the allegations about December 2, 2003, none of the Patient’s medical records were addressed at the arbitration hearing. If the Union did have access to the Patient’s medical records, one would expect that any psychological problem other than depression would have been brought forward in the hearing.
 One example: during direct examination, the Patient was asked about the Alaska Club:
Have you ever been to the Alaska Club and seen … [the Grievant]?
So you have never been to the Alaska Club?
I didn’t say that. I have been to the Alaska Club, but I’ve never seen
… [the Grievant] there.
From Chapter 5, Section B,
the AIB has reason
to believe that a patient or other witness is not mentally competent or may
suffer from a condition that substantially affects his or her ability to
accurately observe, recall, and relate observations, or to understand the
significance of an oath or affirmation, those matters shall be documented in
the investigative file and appropriately noted in the investigative report.
If the witness's testimony is likely to be significant, the AIB should
request a written opinion from an attending physician or other evidence
regarding the competency of the witness. AIBs should consider testimony from
such witnesses, but should also take evidence of limited competency into
account in assessing the credibility of their testimony. (Arbitrator’s
 In questioning the Grievant, counsel for the agency brought out the fact that Fuhrman was tall, slim, and relatively young in comparison to the Patient who was of medium height, middle-aged, and overweight.
Two members of the three-person AIB were African-American; one testified at the arbitration, the other had left the Agency. There is no indication in the record of the AIB or in the arbitration whether or not either understood the reference in this figurative sense.
 In the Grievant’s appearance before the AIB, he was asked about earlier testimony.
member of the AIB]: You know, why did you ask the nurse to come in on that one
and you didn’t [with the Patient]?
Witness: Well, that was a rowdy patient.
Witness: And what I try to do is I try to - - if a patient comes in and know
[sic] or I feel there’s going to
be a confrontation. . . . .
The Witness: . . . . . then instead of hitting that panic button I just go get the nurse manager and ask her if she would get the vital signs and screen the patient. (Agency ex. 1, Tab 3, p. 21, l. 21-p. 22, l. 6.)
 The Patient’s story—if a racist fabrication—was detailed and was consistent over several tellings. Since the Patient had no way of knowing when, if ever, the Grievant would be his intake screener, we would have to assume either that the Patient was capable of creating such a detailed fabrication within a very short period on December 2, 2003, or that he had created the fabrication in advance to have ready when and if the Grievant (or other person of color) were ever to interact with him at the Agency.
From Agency ex. 3, Tab 4:
The reason I knew who it was is because I went into that chart and saw a note that another nurse wrote.
 My rendition of her title may be amiss: I took abbreviated notes.
 I got the impression during the four days of testimony that at times (at least in the past), relations between the Union and management at the facility have been far from harmonious.
 I note that one of the members of the AIB was a Critical Care Technician.
 Chapter 6, Section D 3 of the Handbook states:
Certification by the Convening Authority. Within 30 days of receiving the IR, or as soon as practicable thereafter, the Convening Authority shall certify completion of the investigation. The Certificate shall state that the report has been reviewed for compliance with VA Directive 0700 and this Handbook, and that the subject of the report has been properly investigated. If more than 30 days have elapsed since receipt of the report, the Convening Authority shall document in the certificate any reasons for the delay (e.g. time required for additional investigation, legal review, etc). In the certificate of completion, the Convening Authority may add, delete, otherwise modify, or comment upon the findings of fact, conclusions, or other matters in the report, and may append additional exhibits or attachments. Any modification of the report shall include a concise statement of the reasons therefor. The Convening Authority may also note in the certificate any corrective action that has been taken regarding the matter investigated as of the date of the certification. Completion of the investigation does not preclude further inquiry or action based on the matter reported. Once the investigation is certified complete, the Convening Authority should provide written notice that the investigation is complete to AIB members, subjects of the investigation, other addressees of the Charge Letter, and other interested persons or organizations as appropriate.
 The Union did not provide the location of the testimony it had in mind, but I assume it is the following:
So I offered him mental health, he said that he had seen … [name of VA psychiatrist] in the past and that he would be willing to see … [him] again. He said I know … [him] and I know I can trust him. I can say anything to him. And at 8:00 I went up and talked to … [that psychiatrist] and asked if he could see the patient as soon as possible which he agreed to do. And then on the 4th I received a phone call from … [the Patient] at 6.45 a. m.. He told me that … [the psychiatrist] had contacted him and he was grateful for that contact. He couldn’t think of anything else, he was having difficulty sleeping and when he was doing something critical within his field he could focus on it but as soon as that was done his mind bounced right back to these allegations. (Agency Ex. 3, Tab 6, p 83, ll. 7-19.)
 5 C.F.R. 1201.56 (c):
(3) Harmful error: Error by the agency in the application of its procedures which, in the absence or cure of the error, might have caused the agency to reach a conclusion different than the one reached. The burden is on the appellant to show that based upon the record as a whole the error was harmful, i.e., caused substantial harm or prejudice to his rights.