Giordano v. Roudebush

• Decision Date: 12 April 1978
• Docket Number: Civ. No. 76-141-1.
• Citation: 448 F. Supp. 899
• Parties: Robert P. GIORDANO, M. D., Plaintiff, v. Richard L. ROUDEBUSH, Administrator of Veterans' Affairs, Veterans' Administration, John Chase, Eugene Caffey, Jr., Louis Polumbo, T. E. Corcoran, Richard Bjork, Robert Pepiot, and the United States of America, Defendants.
• Court: U.S. District Court — Southern District of Iowa

448 F. Supp. 899

Robert P. GIORDANO, M. D., Plaintiff, v. Richard L. ROUDEBUSH, Administrator of Veterans' Affairs, Veterans' Administration, John Chase, Eugene Caffey, Jr., Louis Polumbo, T. E. Corcoran, Richard Bjork, Robert Pepiot, and the United States of America, Defendants.

Civ. No. 76-141-1.

United States District Court, S. D. Iowa, Central Division.

May 19, 1977.

On Motion for Determination of Back Pay April 12, 1978.

COPYRIGHT MATERIAL OMITTED

Richard G. Santi and Lance A. Coppock, Ahlers, Cooney, Dorweiler, Haynie & Smith, Des Moines, Iowa, for plaintiff.

Roxanne Barton Conlin, U. S. Atty., Des Moines, Iowa, for defendants.

MEMORANDUM OPINION

WILLIAM C. STUART, Chief Judge.

The above entitled action, filed April 23, 1976 was presented on its merits commencing December 21, 1976. Appearing for plaintiff were Richard G. Santi and Lance A. Coppock. Appearing for defendants were George H. Perry then acting United States Attorney for the Southern District of Iowa and Edward F. McCarten, attorney for the Veteran's Administration. Defendants reply brief was filed December 28, 1976. After having heard the evidence and the arguments of counsel, examining all matters filed including the testimony and exhibits, and being fully advised in the premises the Court makes the following findings of fact and conclusions of law.

The Facts

Dr. Robert P. Giordano, a Board Certified Urologist of considerable academic and practical experience and training, was appointed in October of 1973 as a staff physician in the Veterans Hospital in Des Moines, Iowa. This appointment, as assistant chief of the Urology section was made under the provisions of Title 38, United States Code section 4104, which together with section 4106 provides that such employment shall be for a probationary period of three years. At the time of this appointment the section chief was Dr. Robert Puntenney. Approximately eleven months after Dr. Giordano was appointed, Dr. Puntenney was transferred to the V.A. hospital in Phoenix, Arizona thus leaving Dr. Giordano as the only qualified staff Urologist, aside from those in the residency training programs. Prior to his transfer, as section chief, Dr. Puntenney was required to prepare a proficiency report or evaluation of Dr. Giordano as a probationary employee. On January 27, 1975 Dr. Puntenney prepared his first proficiency report on Dr. Giordano and his performance was rated satisfactory. However, by letter dated December 2, 1974, Dr. Puntenney after his transfer to Phoenix, had contacted Dr. Louis Palumbo and stated in pertinent part as follows:

I have deliberately postponed completion of the proficiency report on Dr. Giordano in order that I can develop a valid rationale in the hopes that it will prevent being overly critical of his performance during the preceding year.

During the past year I have had the opportunity to observe Dr. Giordano in his daily performance as an Assistant Chief, Urology Section at the Des Moines Veterans Hospital. As you are aware due to the several times I have discussed his performance with you in order to seek advice, the general level of his performance has been less than satisfactory. It is because of this possible preconceived bias, if you will, that I suggest that a final rating not be based strictly upon my report, but rather incorporate into the final rating the evaluation of others that may have come in contact with this individual.

There followed an extensive and detailed discussion of Dr. Puntenney's perception of deficiencies in Dr. Giordano's performance. An additional proficiency report was prepared on Dr. Giordano in October of 1975 by Dr. Palumbo in which his performance was rated as unsatisfactory.

The Urology section administratively is under the Surgical Services branch, in Des Moines, headed by the Chief of Surgery, Dr. Palumbo. Approximately six months after Dr. Giordano's appointment, problems began to develop between Dr. Giordano and Dr. Palumbo and perhaps others on the staff of the V.A. hospital. During the fall of 1974, Dr. Palumbo denied Dr. Giordano permission to go to the Broadlawns Polk County Hospital to assist in organizing a Urology clinic. In January of 1975 another problem arose concerning whether certain examinations should be conducted in the Outpatient Clinics as suggested by Dr. Giordano or within surgical services as advocated by Dr. Palumbo. Subsequent to the occurrence of other differences, in July of 1975 Dr. Giordano placed in writing what he felt to be the substantial causes of dispute and submitted it to Mr. Pepiot, the hospital director. This memo, dated August 25, 1975, was made available to Dr. Palumbo. In addition, on August 25, 1975 Dr. Palumbo requested, pursuant to V.A. rules and regulations governing probationary employees, the convening of a Professional Standards Board to review Dr. Giordano's performance. Mr. Pepiot felt that since he was unable to resolve these largely personal and professional differences that he should request outside assistance from V.A. Central Office in Washington, D. C.

On September 9, 1975 Dr. Robert Condon visited the Des Moines V.A. and interviewed some 16 people including Dr. Giordano and Dr. Palumbo. On September 15, 1975 he submitted a detailed report to Dr. Carl Hughes, Director of Surgical Services, Central Office. This report was not made available to Dr. Giordano until subsequent to his discharge. The Condon report suggested that three alternatives be offered to Dr. Giordano: "In order to restore an effective working environment within the Surgical Service at Des Moines VAH, Dr. Giordano must be removed." The alternatives offered were (1) to resign; (2) to transfer to another VA hospital; or (3) face a Professional Standards Board with potentially unfavorable results. Both Mr. Pepiot and Dr. Corcoran indicated to Dr. Giordano that he had very little chance of "getting past" a Professional Standards Board. Dr. Giordano would not resign or accept a transfer.

On September 26, 1975 Dr. Giordano received a letter from Dr. Corcoran advising him that a Professional Standards Board would be convened October 10, 1975 comprised of Des Moines V.A. hospital personnel. Upon objection by Dr. Giordano and his attorney, on October 16, 1975 Mr. Pepiot responded by letter that permission had been granted by V.A. Central Office to appoint an independent review board.

On November 25, 1975 Dr. Giordano received from Dr. J. J. Matoole, Chairman of the Professional Standards Board in Omaha, Nebraska, notice that such Board would convene in Des Moines on December 10, 1975. The notice listed the general areas in which a proficiency evaluation indicated performance deficiencies. These areas included (1) compliance with established tours of duty, (2) response and compliance with V.A. policies and procedures, (3) personal conduct, and (4) interpersonal relationships during working hours.

The Board met in Des Moines on December 10, 1975. Dr. Giordano was called but was not allowed to be present during other witness' testimony to cross-examine the other witnesses nor was he allowed to be represented by counsel. The report of the Omaha Board was forwarded on December 23, 1975 to Mr. Pepiot. Essentially it was the finding of the Omaha Board that "the Board was unable to corroborate to its satisfaction the existence of deficiencies considered to be of sufficient significance to justify recommending termination of employment". This Board report, as with the Condon report, was not made available to Dr. Giordano until after his discharge.

After receiving the recommendation of the Omaha Board, Mr. Pepiot requested a secondary review by the established Professional Standards Review Board, Central Office, Washington, D. C. According to Mr. Pepiot, upon review by the hospital director and a determination of disagreement, it is within his discretion to request additional review by Central Office. Dr. Giordano was not informed of this decision by either Mr. Pepiot or Central Office.

Upon forwarding this report Mr. Pepiot included a cover letter delineating his disagreement with the conclusions of the Omaha Board and specifying certain alleged incidents concerning Dr. Giordano. Dr. Giordano was not granted access to this letter nor was he aware of its contents which included statements in substance as follows:

1. I have reviewed the Professional Standards Review of Dr. Giordano's evaluation and feel there is still justification why Dr. Giordano should not be continued as an employee of this hospital.

2. On many weekdays it is impossible for either Dr. Palumbo, Dr. Corcoran or myself to contact Dr. Giordano, either by telephone or by paging. Secretaries have been unable to find him and as witnessed by his own testimony, he has not been available at all times in the clinic where he is needed. His statement which states he can usually be found in the hospital or the library, I feel is false. Those are the first places we look—his office, library, surgery, etc.

3. The personal relationships between he and Dr. Palumbo are so strained that I feel it is impossible to get them back together again. This is true in the cases of many other staff members who either totally ignore or avoid Dr. Giordano.

On January 23, 1976 Mr. Pepiot forwarded another letter to Dr. Caffey which contained additional documentation of incidents involving Dr. Giordano subsequent to the convening of the Omaha Professional Standards Board. Again Dr. Giordano was not aware of this letter or its contents.

Dr. Eugene Caffey, Jr., Chairman of the Professional Standards Review Board, Central Office, Washington, D. C. first became aware of the problems concerning Dr. Giordano in the fall of 1975 when the request came in for the appointment of the independent Professional Standards Board from Mr. Pepiot. From the time of this request Dr. Caffey received a variety of communications from several sources concerning the disposition of Dr. Giordano's...