Rodriguez v. Dep't of Veterans Affairs

• Decision Date: 12 August 2021
• Docket Number: 2019-2025
• Court: U.S. Court of Appeals — Federal Circuit
• Parties: Ariel RODRIGUEZ, Petitioner v. DEPARTMENT OF VETERANS AFFAIRS, Respondent

8 F.4th 1290

Ariel RODRIGUEZ, Petitioner

v.DEPARTMENT OF VETERANS AFFAIRS, Respondent

2019-2025

United States Court of Appeals, Federal Circuit.

Decided: August 12, 2021

James Solomon, Solomon, Maharaj & Kasimati, P.A., Tampa, FL, argued for petitioner.

Igor Helman, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent. Also represented by Reginald Thomas Blades, Jr., Robert Edward Kirschman, Jr., Richard Powers, Joshua Marc Salzman.

Before Lourie, Bryson, and O'Malley, Circuit Judges.

Bryson, Circuit Judge.

In August 2018, petitioner Ariel R. Rodriguez was removed from his position with the Department of Veterans Affairs ("DVA") pursuant to 38 U.S.C. § 714. The Merit Systems Protection Board upheld his removal. We reverse and remand.

I

Prior to his removal, Mr. Rodriguez was employed as a Supervisory Consumer Affairs Specialist with the Patient Advocate's Office at the DVA's Bay Pines, Florida, facility. On March 13, 2018, a veteran patient visited the Patient Advocate's Office seeking assistance regarding a co-payment on a medical bill. Mr. Rodriguez and the patient engaged in a confrontation that escalated to the point that Mr. Rodriguez summoned VA Police Service officers. During the confrontation, Mr. Rodriguez yelled at the patient and used profanity. After the police officers arrived, they directed Mr. Rodriguez to leave the reception area and ultimately had to escort him back to his office. However, Mr. Rodriguez subsequently returned to the reception area, where he again confronted the patient.

The DVA initiated an investigation of the incident, during which Mr. Rodriguez was temporarily relieved of his supervisory responsibilities in the Patient Advocate's Office. During his suspension, Mr. Rodriguez contacted Carrie Adams, one of his subordinates, and asked her to modify the witness statement she had submitted regarding Mr. Rodriguez's confrontation with the patient.

The DVA investigation was directed to allegations of verbal abuse, a code of conduct violation, and lack of candor by Mr. Rodriguez in connection with the March 13, 2018, incident. As part of the investigation, Mr. Rodriguez submitted a voluntary witness statement. He was later given an opportunity to amend that statement but declined to do so.

The DVA investigator made a series of findings. First, he found that Mr. Rodriguez engaged in patient abuse by yelling and using profanity directed at the patient and leaning over an office desk toward the patient in a threatening manner. Second, he found that Mr. Rodriguez violated the DVA Code of Conduct through his disruptive behavior with the patient and with the police officers who were summoned to deal with the incident. In particular, the investigator found that Mr. Rodriguez failed to follow the lead officer's instruction to return to his office, that the police had to escort Mr. Rodriguez to his office, and that Mr. Rodriguez returned to the reception area in order to re-engage with the patient. Third, the investigator found unsubstantiated the allegation that Mr. Rodriguez had attempted to coerce one of the police officers into changing his account of the incident. Fourth, the investigator found substantiated the allegation that Mr. Rodriguez had attempted to coerce Ms. Adams into changing her account of the incident. Specifically, the investigator found that Mr. Rodriguez had made statements to Ms. Adams that left her in fear of retaliation if she did not change her testimony. Fifth, the investigator found that Mr. Rodriguez had displayed a lack of candor in his written and verbal accounts of the incident and in denying that he had made the statements reported by Ms. Adams, including the statement that no harm would come to her if she helped him.

The investigator consulted the table of penalties in the DVA handbook and concluded that in light of the nature of the offenses and the presence of aggravating factors, the appropriate penalty was removal. The investigator identified the following aggravating factors: (1) Mr. Rodriguez was a supervisor; (2) his position as an advocate for patients was a sensitive one, and his conduct had the effect of compromising the trust associated with that position; (3) he had previously been disciplined for job-related misconduct; (4) he was a member of the Director's Office and was responsible for ensuring that his conduct was beyond reproach; and (5) he was given two opportunities during the incident to de-escalate the situation but failed to do so.

On June 18, 2018, Teresa E. Kumar, the Associate Director of Patient Services at the Bay Pines facility, provided Mr. Rodriguez with a Notice of Proposed Removal based on three charges: (1) disruptive behavior toward a veteran patient; (2) conduct unbecoming a federal supervisor, consisting of his attempt to influence Ms. Adams's testimony regarding the incident; and (3) lack of candor, based on the fact that Mr. Rodriguez's account of the altercation deviated substantially from the accounts of the other witnesses to the incident.

Ms. Kumar stated in the Notice of Proposed Removal that she had determined that Mr. Rodriguez's conduct warranted removal "because the Agency cannot tolerate abusive conduct toward any patient and not only were you inappropriate with a Veteran patient but after others intervened to de-escalate the conflict you escalated it a second time." J.A. 38. She added that there was a substantial nexus between Mr. Rodriguez's misconduct and his job responsibilities as an advocate for veterans. In addition, she noted that in his role as a supervisor Mr. Rodriguez was expected "to model the highest level of professional conduct" and that as a member of the Director's Office staff he was "held to even a higher standard of proper conduct and professionalism." Id. Finally, she noted that in December 2017, Mr. Rodriguez had been disciplined for a separate violation in connection with his employment.

On August 24, 2018, after Mr. Rodriguez was given an opportunity to reply to the Notice of Proposed Removal, Suzanne M. Klinker, the Director of the DVA's Bay Pines Healthcare System, issued a decision removing Mr. Rodriguez effective August 30, 2018. Ms. Klinker sustained all three charges against Mr. Rodriguez, finding that they were all "supported by substantial evidence." J.A. 263. She added that in making her decision she had "reviewed the reasons and analysis the proposing official provided in paragraph 2 of the Notice of Proposed Removal" regarding the justifications for the level of discipline set forth in the proposed removal, and that she "agree[d] with" and "adopt[ed]" the reasoning of the proposing official in reaching her decision that Mr. Rodriguez should be removed. Id.

Mr. Rodriguez appealed his removal to the Merit Systems Protection Board. Following a hearing in March 2019, the administrative judge who was assigned to the case upheld the removal action. The administrative judge stated that in order to sustain an adverse decision before the Board under 38 U.S.C. § 714, the DVA "must establish by substantial evidence that there is a factual basis for the charged conduct." J.A. 2. In addition, the administrative judge noted that in a proceeding under section 714, the Merit Systems Protection Board cannot mitigate the penalty imposed by the DVA, an authority that the Board enjoys under the general disciplinary procedures set forth in chapter 75 of Title 5. J.A. 2; see 38 U.S.C. § 714(d)(2)(B).

The administrative judge analyzed the three charges against Mr. Rodriguez and found that all three were supported by substantial evidence. J.A. 2–8. Mr. Rodriguez argued to the administrative judge that 38 U.S.C. § 714 violates the Appointments Clause of the Constitution because it deprives a Board administrative judge of the opportunity to remedy improper decisionmaking by the agency. The administrative judge declined to address that issue, however, on the ground that the Merit Systems Protection Board may not consider whether a statute is unconstitutional. J.A. 8–9.

The administrative judge rejected Mr. Rodriguez's claim that he was denied due process because the DVA's deciding official "only skimmed portions" of his written response to the charges levied against him. J.A. 9 (alterations omitted). Mr. Rodriguez's contention in that regard was based on the deciding official's poor recollection of Mr. Rodriguez's written reply arguments during her deposition several months after Mr. Rodriguez's removal. The administrative judge noted that the deciding official testified that she had read the entirety of Mr. Rodriguez's written reply, and he found that "any gaps in her memory concerning its contents long afterward do not constitute a sufficient basis to conclude that statutory and constitutional due process requirements were not met." J.A. 9–10.

Finally, the administrative judge addressed two procedural arguments made by Mr. Rodriguez. First, Mr. Rodriguez argued that the DVA had misapplied section 714 by concluding that the statute authorized the DVA to discipline an employee as long as substantial evidence supports a finding of misconduct. While recognizing that the substantial evidence standard governs the Board's review of the DVA's actions under section 714, Mr. Rodriguez pointed out that the statute requires that the DVA itself must "determine[ ] the performance or misconduct of the covered individual warrants ... removal, demotion or suspension." 38 U.S.C. § 714(a)(1). That standard, Mr. Rodriguez argued, requires the DVA to find that the misconduct in question was proved by at least a preponderance of the evidence. The administrative judge rejected that argument and concluded instead that the DVA was entitled to apply the "substantial evidence" test in deciding to remove an employee, "the same evidentiary standard ... as pertains to the Board in adjudicating such appeals." J.A. 14.

Mr. Rodriguez's second asserted procedural error was that...