Cook v. U.S. Dep't of Veteran Affairs
| Decision Date | 12 November 2020 |
| Docket Number | Case No. 19-2119 |
| Parties | DAVID COOK, M.D., Plaintiffs, v. UNITED STATES DEPARTMENT OF VETERAN AFFAIRS, AND ROBERT WILKIE, SECRETARY OF THE UNITED STATES DEPARTMENT OF VETERAN AFFAIRS, Defendants. |
| Court | U.S. District Court — Central District of Illinois |
Plaintiff David Cook ("Cook") seeks review against the United States Department of Veteran Affairs ("VA") and Secretary Wilkie under 38 U.S.C. § 7462(f) and 5 U.S.C. § 706. Cook filed a Brief in Support of Complaint for Judicial Review (#15) seeking reversal of the Disciplinary Appeals Board's ("DAB") decision to remove Dr. Cook from federal employment. The VA filed a Response arguing the DAB's decision should be affirmed. Dr. Cook filed a Reply Brief (#21) in support of his Brief. For the reasons explained below, the Court recommends that the decision to remove Dr. Cook from federal employment be affirmed and judgment be entered in favor of Defendants.
Cook began working as a physician at the VA's clinic in 2014. In January 2017, Cook saw a female veteran ("Patient A") for a scheduled appointment. (VA Brief #20, p. 1); (Cook Br. #15, p. 2). On September 11, 2017, Patient A and Cook were paired on the dating website Match.com. (VA Brief #20, p. 4); (Cook Br. #15, p. 9). Cook and Patient A met in-person and had sexual intercourse on September 11, 2017, or September 12, 2017. (R. 507.); (VA Brief #20, p. 9); (Cook Br. #15, p. 12). Cook treated Patient A during a scheduled appointment at the VA on September 13, 2017.1 (VA Br. #20, p. 9); (Cook Br. #15, p. 3). Cook and Patient A interacted socially until Cook ended their relationship on September 23, 2017.2 (Cook Br. #15, p. 3); (VA Br. #20, p. 10).
In January and February of 2018, Patient A contacted Cook via Facebook about refilling her prescriptions and various ailments that she was experiencing. (VA Br. #20, p. 2); (Cook Br. #15, p. 3). Cook responded to these inquires and arranged to have Patient A's prescriptions refilled, and Cook offered medical advice for the other ailments.3 (Cook Br. #15, p. 3); (VA Br. #20, p. 2). Patient A was the only patient with whom Cook communicated through Facebook to craft therapeutic plans. (VA Br. #20, p. 5); (R. 64.) Cook did not notify the VA about his relationship with Patient A. (VA Br. #20, p. 2); (R. 69.)
In September 2018, Patient A came to the clinic for another appointment with Cook. (VA Br. #20, p. 2). Patient A was distressed about seeing Cook as a treating physician after their non-clinical interactions, and she contacted a social worker to express her distress. Patient A also posted a video on YouTube stating that a VA physician had seen her socially, and Patient A asserted that Cook took advantage of her. (VA Brief #20, p. 2). In response, the VA launched an investigation against Cook. (VA Brief #20, p. 2).
On September 20, 2018, at approximately 1:00 PM, Cook was notified that he was going to be placed on paid leave while an investigation was conducted. Later that same day at approximately 7:56 PM, Cook called Patient A and left her a recorded voice message. Additionally, Cook messaged Patient A on Facebook, and Cook wrote: "I don't know if you realize how thoroughly and completely what you're doing is absolutelydestroying my life." (R. 306.) On September 21, 2018, Cook was instructed by the VA to not contact his patients during the investigation. (R. 253.)
After the investigation, Cook was removed from duty and terminated from his position. Cook appealed the removal. The Disciplinary Appeals Board ("DAB") reviewed the Administrative Investigative Board's ("AIB") findings and affirmed the removal. (R. 303.); (R. 304-310.)
The federal district court has jurisdiction over the DAB's disciplinary decision pursuant to 5 U.S.C. § 706 and 38 U.S.C. § 7462(f)(2). The statute states:
The reviewing court shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; . . . (E) unsupported by substantial evidence[.]
5 U.S.C. § 706(2).
Plaintiff argues the VA's decision to terminate his employment should be reversed for three principal reasons. First, Cook argues his due process rights were violated. (Cook Br. #15, p. 5-10). Second, Cook argues the DAB's findings are not supported by substantial evidence. (Cook Br. #15, p. 10-13). Third, Cook argues the VA's penalty was excessive because of the evidence and mitigating factors.
Cook argues that the DAB must be reversed because Cook's due process rights were violated for four reasons. (Cook Br. #15, p. 5-10). First, Cook argues that his due process rights were violated because the AIB relied on Patient A's unreliable statements. (Cook Br. #15, p. 6). Second, Cook argues that his due process rights were violated because the AIB relied on Patient A's hearsay statements. (Cook Br. #15, p. 6). Third, Cook argues his due process rights were violated because he was not able to cross examinePatient A or Elizbeth McGarry.4 (Cook Br. #15, p. 7). Fourth, Cook argues his due process rights were violated because the DAB improperly reviewed Patient A's YouTube video in advance of the hearing. (Cook Br. #15, p. 10).
First, Cook argues that his due process rights were violated because Patient A's statements were false. (Cook Br. #15, p. 6). The Court acknowledges that Patient A provided a disputed timeframe of certain events.5 However, Patient A's disputed timeframe is immaterial because the parties agree on the essential facts. Specifically, Cook testified or acknowledged that: (1) he saw Patient A professionally in January 2017 (R. 374-75.); (2) he had sexual intercourse with Patient A on September 11, 2017, or September 12, 2017 (R. 487.); (3) he saw Patient A professionally on September 13, 2017 (R. 488.); (4) he continued to have a personal relationship with Patient A until September 23, 2017 (R. 505.); (5) he refilled Patient A's prescriptions and gave her medical advice through Facebook Messenger from October 2017 until May 2018 (R. 516, R. 688-691.); (6) he contacted Patient A about the investigation on September 20, 2018, and told her she was ruining his life. (R. 492, 386.); (VA Br. #20, p. 7-9.) Moreover, the parties (i.e. Cook and the VA) agree on all of these essential facts. Nothing during the DAB process violated Cook's due process rights.
Second, there was nothing inappropriate about DAB's reliance on Patient A's statements because administrative agencies are not bound by hearsay rules or other conventional rules of evidence. Niam v. Ashcroft, 354 F.3d 652, 659 (7th Cir. 2004) (). "Although the hearsay rule does not apply to administrative proceedings . . . the Fifth Amendment's guarantee of a full and fair hearing limits admissibility of evidence." Rosendo-Ramirez v. I.N.S., 32 F.3d 1085, 1088 (7th Cir. 1994). Hearsay evidence "need only bear satisfactory indicia of reliability, and can constitute substantial evidence if reliable and trustworthy." Crawford v. U.S. Dept. of Agriculture, 50 F.3d 46, 49 (D.C. Cir. 1995). Here, the Court concludes that Patient A's accusation has an indicia of reliability because the accused party, Dr. Cook, confirmed all material elements of her allegations. Therefore, the DAB appropriately relied on Patient A's statements.
Third, Cook argues his due process rights were violated because he was not able to cross examine Patient A or Elizbeth McGarry. (Cook Br. #15, p. 7). The Court disagrees. "[A] party in an administrative discharge hearing does not have an absolute right to cross-examine witnesses." Kreso v. Shinseki, 67 F. Supp. 3d 1235, 1252 (D. Col. Sept. 9, 2015) (citing McClure v. Indep. Sch. Dist. No. 16, 228 F.3d 1205, 1211-12 (10th Cir. 2000)). "[W]hether the Due Process Clause requires that the terminated employee be offered the right to cross-examine or confront witnesses depends upon the significance and nature of the factual disputes at issue." Kreso v. Shinseki, 67 F.Supp.3d 1235, 1252 (D. Col. Sept. 9, 2015); see also Espinoza v. I.N.S., 45 F.2d 308, 311 (7th Cir. 1995) (). The Court concludes Cook's due process rights were not violated by his inability to cross examine Patient A or Ms. McGarry. He was not entitled to cross examine the witnesses in an administrative hearing, and the parties do not have a significant factual dispute.
Fourth, Cook argues his due process rights were violated because the DAB reviewed Patient A's YouTube video before the hearing. Cook reasons the YouTube video does not contain his perspective of events, and the YouTube video caused the DAB to formulate opinions about Cook before he was able to be heard in a meaningful way. (Cook Br. #15, p. 10). This argument is underdeveloped and waived because Cook did not provide any legal authority or other justification to support his argument. Colburn v.Trustees of Indiana University, 973 F.2d 581, 593 (7th Cir. 1992 ( that a "perfunctory argument" does not preserve a claim and it is not the court's role to scour the record for factual or legal support for a claim). Further, as noted above, the DAB was entitled to consider hearsay evidence, like the YouTube video, during the administrative hearing.
Plaintiff argues the VA's decision should be reversed because the decision was not supported by substantial evidence for four reasons. First, Cook argues Patient A presented false evidence. (Cook Br. #15, p. 11). Second, Cook argues two of the Specifications are not supported by...
To continue reading
Request your trial