488 F.3d 489 (1st Cir. 2007), 06-1537, Sher v. U.S. Dept. of Veterans Affairs

Docket Nº:06-1537.
Citation:488 F.3d 489
Party Name:Alam SHER, Plaintiff, Appellant, v. U.S. DEPARTMENT OF VETERANS AFFAIRS, Defendant, Appellee.
Case Date:May 29, 2007
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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488 F.3d 489 (1st Cir. 2007)

Alam SHER, Plaintiff, Appellant,

v.

U.S. DEPARTMENT OF VETERANS AFFAIRS, Defendant, Appellee.

No. 06-1537.

United States Court of Appeals, First Circuit.

May 29, 2007

Heard Oct. 6, 2006.

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Tracie L. Adamson, with whom Sumner H. Lipman, Keith R. Varner, and Lipman, Katz & McKee, P.A. were on brief, for appellant.

Halsey B. Frank, Assistant U.S. Attorney, with whom Paula D. Silsby, U.S. Attorney, was on brief, for appellee.

Before LIPEZ, Circuit Judge, STAHL, Senior Circuit Judge, and HOWARD, Circuit Judge.

LIPEZ, Circuit Judge.

This case requires us to examine the implications of the immunity that a government employee receives under Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967), when threatened with an adverse employment action for refusing to answer questions in an administrative investigation by his employer. Statements made in response to such a threat, and the fruits of such statements, may not be used against the employee in subsequent criminal proceedings. That much is clear. The question we consider is whether the circumstances present in this case justified a failure to cooperate charge brought against appellant Dr. Alam Sher by appellee, the Department of Veterans Affairs ("VA"), for Sher's refusal to answer questions as part of an investigation into his conduct by the VA.

Sher was Chief Pharmacist of a hospital operated by the VA in Gardiner, Maine. In 2001, the VA suspended Sher for forty-five days and demoted him from his position with a corresponding reduction in pay grade for obtaining free samples from pharmaceutical companies for personal use, in violation of 5 C.F.R. § 2635, and failing to cooperate with an administrative investigation, in violation of 38 C.F.R. § 0.735-12(b). After an initial reversal of the failure to cooperate charge by an Administrative Law Judge ("ALJ"), the Merit Systems Protection Board ("MSPB") issued a final order upholding the VA's decision. Sher subsequently filed suit in federal district court challenging the MSPB decision to sustain the failure to cooperate charge and the penalty imposed by the VA. He also brought a claim of employment discrimination on the basis of religion and national origin against the VA under Title VII, 42 U.S.C. § 2000e-2. Additionally, he moved to amend the record to include a VA training videotape that discusses the practice of obtaining free drug samples. The district court denied the motion to amend the record, upheld the MSPB's decision, and granted summary judgment to the VA on the employment discrimination claim. We affirm the judgment of the district court.

I.

A. Factual Background

We draw the following facts from the administrative record and the parties' affidavits.

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We note factual disputes where they exist but find that these disputes do not affect our disposition of the case.

Sher is a Muslim of Pakistani origin. He worked as Chief Pharmacist for the Togus Medical Center, located in Gardiner, Maine and operated by the VA, from 1992 until 2001. He received high evaluations during his tenure as Chief Pharmacist. It is uncontested that Togus Director John Sims knew of Sher's Pakistani origin, but the parties disagree as to whether Sims and Togus Chief of Staff Timothy Richardson knew of Sher's Muslim faith.

Federal regulations prohibit federal employees from accepting items of monetary value from anyone doing business with the employee's agency, subject to limited exceptions. See 5 C.F.R. §§ 2635.201-.203. The VA also promulgates its own agency-specific regulations, and individual units of the VA develop their own local policies. In August 1999, Togus instituted a facility-wide policy prohibiting "sampling," a practice in which representatives of pharmaceutical companies give providers free samples of their medicines to facilitate better understanding of the medicines' application and efficacy. Although the parties agree that Sher had notice of this policy, Sher states that he believed that the policy applied only to the distribution of samples to patients or veterans. Many medical professionals at Togus shared his belief.

In August 2000, Sher attended a training on standards of ethical conduct for government employees. At that training, he received a pamphlet entitled "An Ethics Pamphlet for Executive Branch Employees," which explained the federal gift ban with the statement that "[a]n employee shall not, except as permitted by the Standards of Ethical Conduct, solicit or accept any gift or other item of monetary value from any person ... doing business with ... the employee's agency." The pamphlet also noted that "you may not accept a gift from people or organizations who are 'prohibited sources'--those who do business with, or seek to do business with your agency." Employees could "accept any gift that is not worth more than $20," but could not "ask for [] something worth $20 or less."

Throughout the proceedings leading to this litigation, Sher has stipulated that, after experiencing chest pain and consulting a cardiologist, he requested and received free samples of Lipitor several times while employed as Chief Pharmacist at Togus. On or about June 16, 2000, in order to participate in a Parke-Davis promotional program, Sher signed a Free Goods Requisition Form for Lipitor. He signed another such form on August 16, 2000. In December 2000, Sher asked a Pfizer sales representative for samples of Lipitor, and repeated his request after a "lunch and learn" program in mid-January of 2001. On about January 25, Sher asked another Pfizer representative for samples of Lipitor and signed a "starter activity form" in order to receive the Lipitor. Two days later, a Pfizer sales representative provided Sher with thirty-two ten-milligram samples of Lipitor, a fifty-six day supply. On about January 29, another sales representative provided Sher with more samples of Lipitor.

On January 29, 2001, a Togus employee informed Chief of Human Resources James Schillinger and VA counsel Carole Moore that Sher had accepted drugs from a pharmaceutical representative. That same day, at the request of Schillinger and Moore, Togus security officers stopped Sher as he was leaving the medical center. The officers searched Sher's briefcase and office, finding 672 ten-milligram samples of Lipitor.

The VA initiated an investigation of Sher's activities related to sampling. Under

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38 C.F.R. § 0.735-12(b), federal employees must furnish information with respect to employment and disciplinary matters unless to do so would be self-incriminating. On February 1, VA Investigator Timothy Bond interviewed Sher, who admitted receiving free samples of Lipitor from Pfizer sales representatives. Having retained attorney Sumner Lipman to represent him, Sher attempted, unsuccessfully, to contact Lipman by phone during the interview. The parties dispute the events that took place at this interview. Sher asserts that, although he agreed to participate in the interview, he did so only because Bond gave him no choice. For its part, the VA contends that Bond informed Sher of his rights under Garrity, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562, 1 at the meeting, and that Sher subsequently consented to the interview.

Bond presented the case against Sher to the United States Attorney's Office for the District of Maine for consideration for criminal prosecution. On March 7, the U.S. Attorney's Office verbally declined prosecution.

On June 5, Bond again attempted to interview Sher without Lipman present. The parties agree that Sher unsuccessfully tried to reach Lipman by phone during the interview, but the record offers no other information about the events that took place at this interview.

In a letter dated June 28, 2001, Togus Chief of Staff Timothy Richardson notified Sher that an administrative interview had been scheduled for July 10. The letter informed Sher that "the United States Attorney of the District of Maine has declined criminal prosecution in the matter before the Inspector General," that "the matter is therefore an administrative investigation," that he was "entitled to the representative of his choice," that federal regulations require employees to "furnish information ... in cases respecting employment and disciplinary matters," and that "[r]efusal ... may be ground for disciplinary action."

By letter dated July 2, Sher asked to reschedule the interview because he had planned to be on vacation until July 11 and his attorney, Sumner Lipman, was unavailable until July 15. Acting on behalf of Togus Director John Sims, Schillinger rescheduled the interview for July 11, thereby effectively refusing Sher's request to have his preferred representative present. The letter rescheduling the interview, dated July 2, reiterated that the U.S. Attorney's Office had declined criminal prosecution, that the issue was now an administrative matter, that Sher was obliged by regulation to provide information, and that he could be disciplined if he refused.

On July 11, Sher appeared with attorney Keith Varner, a partner of Lipman, for the interview with Investigator Bond. VA Counsel Moore also attended the meeting. Varner requested that they postpone the interview until July 13 to allow Lipman to attend. 2 Moore refused the request. Varner also expressed his concern that the interview would expose Sher to criminal liability. In an attempt to address this concern, Moore obtained, by fax, a letter from the U.S. Attorney's Office for the District of Maine declining prosecution. The letter from First Assistant United States Attorney William H. Browder stated, in its entirety:

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On March 7, 2001, this office declined criminal prosecution of Mr. Sher in favor of administrative action. The conduct for...

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