Victor L. Yu v. U.S. Dep't of Veterans Affairs

Decision Date05 July 2011
Docket NumberCivil Action No. 08-933
PartiesVICTOR L. YU, M.D., Plaintiff, v. UNITED STATES DEPARTMENT OF VETERANS AFFAIRS, et al., Defendants.
CourtU.S. District Court — Western District of Pennsylvania

VICTOR L. YU, M.D., Plaintiff,

Civil Action No. 08-933


Date: July 5, 2011

Magistrate Judge Maureen P. Kelly


KELLY, Magistrate Judge

Plaintiff, Victor L. Yu, M.D. ("Dr. Yu"), an employee of the United States Department of Veteran Affairs ("the VA") for over 28 years as both the Chief of Infectious Disease and the Head of the Special Pathogens and Clinical Microbiology Laboratory in Pittsburgh ("the Lab"), has brought this civil action against the United States of America, the VA, the Secretary of Veterans Affairs, Michael E. Moreland ("Moreland"), the Director of the VA Pittsburgh Healthcare System, Rajiv Jain ("Jain"), the Chief of Staff of VA Pittsburgh, Ali Sonel ("Sonel"), the Associate Chief of Staff, Research and Development of VA Pittsburgh, Mona Melhem ("Melhem"), Associate Chief of Staff and Vice President of the Clinical Support Service Line of the VA Pittsburgh, and the Associate Chief of Staff for Research and Development for VA Pittsburgh, Steven Graham ("Graham") (collectively, "Defendants"), following the termination of his employment in August of 2006. Dr. Yu contends that Defendants wrongfully terminated him, vindictively closed the Lab, destroyed the isolates that had been collected, and withheld research funds and equipment from him in violation of his constitutional rights and federal law. Dr. Yu has also brought a state law claim for defamation against Jain.

Presently before the Court is Defendants' Motion to Dismiss Pursuant to Federal Rules of

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Civil Procedure 12(b)(1) and 12(c) or, in the Alternative, Motion for Summary Judgment. For the following reasons, the motion will be granted.

I. Factual and Procedural Background

Dr. Yu, a board certified physician in internal medicine and infectious diseases, was hired in March of 1978 by the VA Pittsburgh Health Care System as a part-time physician.1 [ECF Nos. 50-1, p. 5; 50-3]. Although he eventually became the Chief of the Infectious Disease Section as well as the Head of the Lab, Dr. Yu maintained his status as a part-time employee throughout his employment with the VA. [ECF Nos. 56-2, ¶ 5; 50-1, pp. 17-18; 50-3]. The Lab, which was established in 1981 following the outbreak of Legionnaires disease at various VA hospitals around the country, was created to support the clinical work of the VA by determining the presence of Legionella bacteria in human isolates from VA patients and water samples from VA facilities. [ECF Nos. 56-2, ¶6; 56-3, pp. 67-69; 56-6, Response 3]. According to Dr. Yu, in 1996 the hospital director, Thomas Capello, designated the Lab as a Special Clinical Resource in order to expand its testing and research services to hospitals and public health agencies throughout the country, including non-VA entities. The work, which ultimately involved the collection of approximately 4000 isolates, was purportedly financed by fees charged to those who submitted specimens for testing and from grants and donations within the industry. See [ECF No. 56-2, ¶14].

In January of 2006, Melhem requested a routine review the Lab's clinical productivity and financial expenditures. [ECF Nos. 50-9, p. 4; 50-10, p. 2]. According to Defendants, the review not only revealed that the Lab was unproductive and a "drain" on VA resources but that

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Dr. Yu's research far surpassed what had been authorized by the Research and Development Committee to which all research protocols were to be presented and approved by before the research began. [ECF Nos. 50-9, pp. 4-5; 50-18, ¶ 2.b(2); 50-20; 50-22]. More specifically, Defendants contend that instead of operating for the sole benefit of veterans, Dr. Yu had unilaterally expanded the Lab into a repository for the collection and storage of various Legionella strains and that it had evolved into an unauthorized commercial enterprise operating with a significant financial deficit. [ECF No. 50-9, p. 5]. Dr. Yu, however, contends that the expansion of the Lab's work was done with the knowledge and encouragement of senior VA officials and that the decision to close the Lab was based on incomplete and flawed information obtained by Defendants during unprecedented investigations into the Lab's productivity and his financial accounts. [ECF Nos. 56-2, ¶¶ 15, 24, 25].

Nevertheless, in June of 2006, the decision was made to close the Lab. Dr. Yu was notified that the Lab would be closed and its operations merged into the main clinical lab in a Memorandum dated July 5, 2006. [ECF No. 50-37]. At the same time Dr. Yu was directed to stop all non-clinical activities, including the testing of outside water samples, by July 10, 2006. Id. Dr. Yu requested, and was granted, an extension of time of two weeks to complete the processing of samples that had already been received. [ECF No. 56-16, pp. 22-23]. Although Dr. Yu was reminded in a Memorandum dated July 18, 2006, that no new patient or water samples should be accepted for testing at the Lab, Dr. Yu instructed his technicians to continue processing specimens that continued to arrive from other hospitals and facilities. [ECF Nos. 501, pp. 28-29; 50-39; 50-40]. Defendants contend that as a result of this insubordinate conduct,

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Dr. Yu was placed on non-duty status with pay on July 21, 2006, and was prohibited from entering the VA facility. [ECF No. 50-41].

In the interim, Dr. Yu spoke to the media contesting the VA's decision to close the Lab and to "raise awareness about the effect the closure of the Lab would have on public health." [ECF Nos. 56, p. 17; 56-2, ¶ 30; 56-38]. He also appealed the decision to close the Lab to Moreland in a Memorandum dated July 12, 2006, asking that the reasons for closing the Lab be reduced to writing so that the erroneous information underlying the decision could be refuted. [ECF No. 56-34]. As well, Dr. Yu wrote a letter to Secretary of Veterans Affairs James Nicholson and asked him to intervene. [ECF No. 56-2, ¶ 31]. Both requests, however, apparently went unheeded and the Lab was officially closed on July 21, 2006.

Thereafter it is undisputed that an Administrative Board of Investigation ("ABI") was convened to investigate Dr. Yu and the various concerns associated with the Lab. Notwithstanding Dr. Yu's contention that the process by which the ABI was organized and conducted its investigation violated multiple VA policies, the Board's report, issued on August 11, 2006, found that Dr. Yu had repeatedly and willfully failed to comply with proper orders of supervisors and that he misrepresented the status of lab projects to a senior VHA official, and recommended that appropriate disciplinary action be taken. [ECF No. 50-33, p. 12]. Dr. Yu's employment with the VA was subsequently terminated on August 18, 2006. [ECF No. 56-46, p. 2]. In the letter from Jain advising Dr. Yu of his termination he was also advised that "[i]n accordance with 38 U.S.C. § 7405 (a)(1)(A) you can be involuntarily separated at any time without advanced notice, and you are not entitled to review of the involuntary separation." Id. Dr. Yu alleges that this representation by Jain effectively denied him any right to appeal that he

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may have had either to the Merit System Protection Board or through internal VA procedures. [ECF No. 56, p. 20].

It is undisputed that after the Lab was closed, Dr. Yu attempted to recover equipment and research funds that he had obtained and "dedicated for use in the Lab." [ECF No. 9, ¶ 52]. Despite Dr. Yu's assertion that he maintains an interest in the equipment and funds, Defendants contend that the funds at issue, which were deposited with the Veterans Research Foundation ("VRF"), a nonprofit organization that facilitates medical research and administers funds for VA research, were considered to be the property of the VRF and not any individual investigator. [ECF Nos. 50-26, p. 18; 50-43]. Defendants also represent that the equipment purchased by the VA was transferred to the main clinic lab; that equipment purchased by VRF funds belonged to the VRF and remained with the VA; and that Lab staff members were given the opportunity to transfer off site any other equipment purchased through non-VA funds. [ECF No. 50-9, p. 5].

Dr. Yu also complains that Defendants destroyed his collection of isolates before they could be transferred from the Lab to a laboratory at the University of Pittsburgh despite months of negotiating the necessary steps and proper procedure for doing so. Dr. Yu argues that Defendants' actions not only posed a risk to public health but evidences a collective animus toward him. [ECF Nos. 56, p. 22; 56-53; 56-54; 56-57; 56-58]. Defendants, on the other hand, maintain that the staff at the Lab was instructed to provide a complete inventory of the isolates and consolidate them into an ultralow freezer so that they could be moved to the main clinic lab and that the isolates that were properly labeled and stored were, in fact, transferred. [ECF No. 50-45]. Those that were not properly catalogued or were contained in damaged test tubes, were

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considered bio hazardous material and disposed of accordingly. [ECF Nos. 50-9, p. 5; 50-10, p. 4; 50-12; pp. 10-17; 50-17, pp. 8-9].

Dr. Yu filed a twenty-four count complaint on July 3, 2008, which was amended on August 7, 2008 and again on December 2, 2008. [ECF Nos. 1, 2, 9]. In the Second Amended...

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