Ward v. Derwinski, No. 92-CV-6346L.

CourtUnited States District Courts. 2nd Circuit. United States District Court of Western District of New York
Writing for the CourtLARIMER
Citation837 F. Supp. 517
PartiesWilliam J. WARD, Plaintiff, v. Edward DERWINSKI, Secretary of Veterans Affairs, et al., Defendants.
Decision Date22 December 1992
Docket NumberNo. 92-CV-6346L.

837 F. Supp. 517

William J. WARD, Plaintiff,
v.
Edward DERWINSKI, Secretary of Veterans Affairs, et al., Defendants.

No. 92-CV-6346L.

United States District Court, W.D. New York.

December 22, 1992.


837 F. Supp. 518

Mark D. Roth, American Federation of Government Employees, Washington, DC, for plaintiff.

James Robert Layton, U.S. Attys. Office, Washington, DC, Brian M. McCarthy, Asst. U.S. Atty., Rochester, NY, for defendants.

DECISION AND ORDER

LARIMER, District Judge.

This action arises from disciplinary action taken by the Department of Medicine and Surgery ("DM & S") of the Department of Veterans Affairs ("VA"), against plaintiff, William J. Ward, a nurse employed by the VA. Ward was fired after he was found to have mistreated a psychiatric patient under his care.

Before the Court are defendants' motion to dismiss or, in the alternative, for summary judgment, and plaintiff's cross-motion for summary judgment.1 For the reasons that follow, the parties cross-motions for summary judgment are granted in part and denied in part. The decision of the Secretary of VA ("the Secretary") is vacated insofar as it imposes a penalty of discharge and remanded for reconsideration of the penalty, consistent with this decision.

FACTUAL BACKGROUND

On March 31, 1989, plaintiff was assigned to work as a registered nurse on hospital ward 37-B ("ward 37-B") at the Veterans Administration Medical Center in Canandaigua, New York ("VACNY"). Ward 37-B housed approximately fifty male patients, averaging 48 years in age, who were hospitalized for chronic conditions, most of which were psychiatric in nature.

Plaintiff began working as a registered nurse at VACNY on December 14, 1981. By March of 1989, plaintiff had experience in dealing with psychiatric patients, had never been subjected to disciplinary action and was an active leader of the American Federation of Government Employees ("AFGE"), the employee labor union at VACNY.

Sometime during the morning of March 31, 1989, plaintiff spoke with patient W.J.2 in ward 37-B's day room. W.J. is a paranoid schizophrenic with a history of hallucinations and unprovoked attacks on others. On that particular morning, W.J. was in an enclosed chair, with his head down in front of him, resting on the chair's tray. According to plaintiff, he approached W.J. and called his name twice. W.J. did not respond. Plaintiff observed that W.J. was giggling, speaking to himself and smiling, and he believed that W.J. was hallucinating.

In an attempt to break through the hallucination, plaintiff said that he patted W.J. on the shoulder and asked him how he was that day. W.J. smiled and responded, "Not good." Plaintiff then asked W.J. "if he felt like fighting or hitting." W.J. smiled and said, "Yes."

Apparently, it was common for the medical staff to question W.J. about fighting. Occasionally W.J. could tell a nurse whether or not he was about to become assaultive and appropriate action could be taken when such advance warning was given.

837 F. Supp. 519

After this exchange, plaintiff asked W.J. if he wanted medication. W.J. said, "Yes." W.J. had a prescription for Haladol which was to be given on an "as needed" basis. This medication prevented W.J. from becoming assaultive. When W.J. responded that he wanted the medication, plaintiff prepared the shot and administered the dosage. According to plaintiff, that was the extent of his contact with W.J. that morning.

Approximately two weeks later, on April 12, 1989, written incident reports were filed against plaintiff by Valerie Singleton and Mary Ann Houser, two nurse assistants on duty on March 31, 1989, and Barbara Jones, R.N., plaintiff's supervisor. The incident reports alleged that plaintiff had abused patient W.J., as well as two other patients, G.B. and E.S., on March 31, 1989.

Jones had not seen the alleged acts of patient abuse on either W.J. or G.B., but did witness plaintiff's actions with respect to E.S. Singleton and Houser were in ward-37B's day room on March 31, 1989 and they both claimed to have witnessed the act of patient abuse with respect to W.J. They contend that plaintiff approached W.J. and asked him if he wanted to fight. When W.J. did not respond, plaintiff continued "taunting" W.J. and at one point, according to Singleton and Houser, threatened to put W.J. in restraints, put him in a separate room, and "let the other patients at him."

Singleton and Houser maintained that this exchange occurred for approximately five minutes and that W.J. was unresponsive for the entire time. Singleton and Houser told Jones about the incident, and she suggested that they write memos to the Medical Director to initiate patient-abuse charges against plaintiff3.

An administrative investigation was undertaken to substantiate the patient abuse charges. The investigation was commenced on April 21, 1989 and completed on July 7, 1989 by a three member panel. The panel included the Chief of Pharmacy Service, a social worker, and a nurse. Nine employees were interviewed and their statements were recorded. Only Singleton and Houser testified regarding the alleged abuse of W.J.

Upon completing their investigation, the panel determined that the charges of patient abuse with respect to all three patients had been substantiated and recommended that plaintiff be discharged. The Associate Deputy Medical Director of the VA approved the panel's findings and the proposed sanction.

A letter of proposed discharge under 38 U.S.C. § 4110 was sent to plaintiff on September 15, 1989. Exercising his rights under 38 U.S.C. § 4110, plaintiff requested a hearing before a DM & S Disciplinary Board ("the Board").

For two days beginning on March 19, 1990, the Board met and heard evidence from plaintiff, Singleton, Houser and other witnesses concerning the three alleged incidents of patient abuse. The Board determined that the charges of patient abuse against patients G.B. and E.S. were not sustained, but that the charges of abuse against W.J. were sustained. Discharge was once again recommended as the penalty.

The Chief Medical Director of the VA accepted the Board's decision and recommended that plaintiff be discharged for the violation. Plaintiff appealed the Chief Medical Director's decision to the Secretary and on November 29, 1991, the Secretary sustained the Medical Director's decision.

PROCEDURAL BACKGROUND

This action was commenced in Federal District Court for the District of Columbia on April 26, 1991. In his amended complaint plaintiff claimed that the decision of the Secretary, in accepting the recommendation of the Board, was arbitrary and capricious and not supported by substantial evidence. He sought review of the decision under the Administrative

837 F. Supp. 520
Procedure Act ("APA"), 5 U.S.C. § 706

In addition, plaintiff claimed that his Fifth Amendment rights were violated because the decision to terminate him for this particular offense was not in keeping with the VA's policy of "like penalties for like offenses." He claimed that other registered nurses received less severe penalties for conduct which was much more egregious than the conduct for which he was terminated. Further, plaintiff claimed that his First Amendment rights were violated because he was discharged in retaliation for his past participation in union activities.

The parties originally filed their cross-motions before Judge Gerhard Gesell in the District of Columbia. Judge Gesell did not rule on the merits but transferred the case to the Western District of New York, the district within which the VA Medical Center at Canandaigua is located. The parties renewed their motions before me and, at the Court's direction, both sides have submitted additional papers in support of their respective motions.

DISCUSSION

Review of Administrative Decision

A. Jurisdiction

The Secretary claims that this Court has no jurisdiction to review the disciplinary action against plaintiff. The Secretary argues that the statutory provisions which outline the requirements and procedures for DM & S disciplinary boards, 38 U.S.C. § 41104, does not include a provision for judicial review. 38 U.S.C. § 4110 states in part:

A disciplinary board ... shall recommend to the Administrator now the Secretary suitable disciplinary action ... The Administrator shall either approve ... or disapprove such recommendation.... The decision of the Administrator shall be final.

It is based on the sentence, "the decision of the Administrator shall be final," that the Secretary argues that this Court does not have jurisdiction to review the Board's decision with respect to plaintiff's discharge.

In addition, the Secretary relies on several cases which held that Congress intended the disciplinary procedures enumerated in § 4110 to be "exclusive". See Colorado Nurses Ass'n v. Fed. Labor Relations Auth., 851 F.2d 1486 (D.C.Cir.1988); Veterans Admin. Medical Ctr., Northport v. Federal Labor Relations Auth., 732 F.2d 1128 (2d Cir. 1984); Veterans Admin. Medical Ctr., Minneapolis v. Federal Labor Relations Auth., 705 F.2d 953 (8th Cir.1983).

These cases, however, do not stand for the proposition that judicial review of personnel disciplinary actions, conducted pursuant to the procedures outlined in 38 U.S.C. § 4110, is precluded. None of the cited cases hold that there is no judicial review for disciplinary actions taken under § 4110. In the cases cited by the Secretary, plaintiffs sought to impose additional procedures on the VA or to require that the VA engage in collective bargaining with its nurses.

Here, plaintiff was disciplined according to the procedures of § 4110 and received a final decision from the Secretary with respect to the charge of verbal patient abuse. Plaintiff now seeks to have this Court review that final decision, specifically because he claims that the decision was arbitrary and capricious.

Once a final decision has been obtained from an agency, an aggrieved person has a right to challenge...

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5 practice notes
  • Titan Wheel Corporation v. United States Environmental Protection Agency, No. 4:02-cv-40352 (S.D.Iowa 11/10/2003), No. 4:02-cv-40352.
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Southern District of Iowa
    • November 10, 2003
    ...sanctions are determined to be arbitrary and capricious by comparing sanctions in similar cases. Titan also cites Ward v. Derwinski, 837 F. Supp. 517, 523 (W.D.N.Y. 1992), asserting dissimilar penalties imposed for similar violations may be rendered unjustifiable in fact where there are "re......
  • Gregor v. Derwinski, No. 91-CV-6470L.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Western District of New York
    • January 5, 1996
    ...the employee, may also be subject to judicial review under the APA. Maxey, 890 F.2d at 75; Heaney, 756 F.2d at 1219; Ward v. Derwinski, 837 F.Supp. 517, 521 (W.D.N.Y.1992), aff'd, 22 F.3d 516 (2d Cir. Plaintiff does not dispute the existence of this administrative scheme, but contends that ......
  • Beck v. Shinseki, CV 113-126
    • United States
    • United States District Courts. 11th Circuit. United States District Court (Southern District of Georgia)
    • March 16, 2015
    ...of fact, and it cannot overrule a credibility determination made by those who actuallyPage 61heard the testimony. Ward v. Derwinski, 837 F. Supp. 517, 522-23 (W.D.N.Y. 1992) (citations omitted). The fact that the Board accepted some testimony from Dr. Kalla over that of Ms. Beck concerning ......
  • Lerner v. Shinseki, CIVIL ACTION NO. 3:12-CV-00565
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Western District of Kentucky
    • October 10, 2013
    ...imposed against a VA nurse was found arbitrary and capricious, the penalty imposed on Lerner "simply fails the 'Doesn't add up' test." 837 F. Supp. 517, at 524 (W.D.N.Y. 1992) (quoting Stephens v. Derwinski, 790 F. Supp. 29, 31 (D.D.C. 1992)). Therefore, based upon its review of the DAB's w......
  • Request a trial to view additional results
5 cases
  • Titan Wheel Corporation v. United States Environmental Protection Agency, No. 4:02-cv-40352 (S.D.Iowa 11/10/2003), No. 4:02-cv-40352.
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Southern District of Iowa
    • November 10, 2003
    ...sanctions are determined to be arbitrary and capricious by comparing sanctions in similar cases. Titan also cites Ward v. Derwinski, 837 F. Supp. 517, 523 (W.D.N.Y. 1992), asserting dissimilar penalties imposed for similar violations may be rendered unjustifiable in fact where there are "re......
  • Gregor v. Derwinski, No. 91-CV-6470L.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Western District of New York
    • January 5, 1996
    ...the employee, may also be subject to judicial review under the APA. Maxey, 890 F.2d at 75; Heaney, 756 F.2d at 1219; Ward v. Derwinski, 837 F.Supp. 517, 521 (W.D.N.Y.1992), aff'd, 22 F.3d 516 (2d Cir. Plaintiff does not dispute the existence of this administrative scheme, but contends that ......
  • Beck v. Shinseki, CV 113-126
    • United States
    • United States District Courts. 11th Circuit. United States District Court (Southern District of Georgia)
    • March 16, 2015
    ...of fact, and it cannot overrule a credibility determination made by those who actuallyPage 61heard the testimony. Ward v. Derwinski, 837 F. Supp. 517, 522-23 (W.D.N.Y. 1992) (citations omitted). The fact that the Board accepted some testimony from Dr. Kalla over that of Ms. Beck concerning ......
  • Lerner v. Shinseki, CIVIL ACTION NO. 3:12-CV-00565
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Western District of Kentucky
    • October 10, 2013
    ...imposed against a VA nurse was found arbitrary and capricious, the penalty imposed on Lerner "simply fails the 'Doesn't add up' test." 837 F. Supp. 517, at 524 (W.D.N.Y. 1992) (quoting Stephens v. Derwinski, 790 F. Supp. 29, 31 (D.D.C. 1992)). Therefore, based upon its review of the DAB's w......
  • Request a trial to view additional results

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