SHAW BRANSFORD & ROTH P.C.

Attorneys at Law
1100 Connecticut Avenue NW Suite 900
Washington DC 20036
Tel 202.463.8400 www.shawbransford.com Fax 202.833.8082

December 28, 2015

VIA ELECTRONIC MAIL AND FEDEX

The Honorable John Hardy Isakson
Chairman
United States Senate Committee on Veterans' Affairs
Russell Senate Building, Room 412
Washington, D.C. 20510-6050
public_testimony@sulli van.senate.gov
The Honorable Richard Blumenthal
Ranking Member
United States Senate Committee on Veterans' Affairs
Russell Senate Building, Room 412
Washington, D.C. 20510-6050
public_testimony@sullivan.senate.gov
Re:

Testimony on Behalf of Lance Robinson

December 14, 2015 Field Hearing

Dear Chairman Isakson and Ranking Member Blumenthal:

We write on behalf of our client, Mr. Lance Robinson, Associate Director of the Phoenix
VA Health Care System, U.S. Department of Veterans Affairs ("VA") to provide testimony for
the public record of the Committee on Veterans' Affairs ("Committee") December 14, 2015
Field Hearing, "Keeping the Promise for Arizona Veterans: the V.A. Choice Card, Management
Accountability and Phoenix V.A. Medical Center" ("Field Hearing"). 1 We specifically write to
correct the inaccurate testimony that the VA Under Secretary for Health, Dr. David Shulkin,
gave during the Field Hearing regarding Mr. Robinson's employment status.
I.

BACKGROUND

As you may already be aware, the VA placed Mr. Robinson on paid administrative leave
from his employment with the VA beginning May 2, 2014. See Summary of Investigations and
1

At the both the beginning and at the end of the Field Hearing, Senator Daniel Sullivan invited
members of the public to submit written testimony to be part of the official hearing record by emailing their testimony to public_testimony@sullivan.senate.gov by December 28, 2015.

The Honorable John Hardy Isakson

The Honorable Richard Blumenthal
United States Senate Committee on Veterans' Affairs
December 28,2015
Page 2

Known Outcomes, enclosed as Exhibit ("Ex.") 1, at 1; Administrative Leave Memorandum,

enclosed Ex. 2. On May 30, 2014, VA Deputy Chief of Staff Hughes Turner issued a notice
proposing to remove Mr. Robinson from his position and from the federal service, based entirely
on the V A's assertions that Mr. Robinson is culpable for patient care access issues at the Phoenix
VA Health Care System ("Phoenix VA"). 2 See Ex. 1, at 1; Notice of Proposed Removal,
enclosed as Ex. 3.
Pursuant to Title 5 of the U.S. Code, the VA was only required to provide Mr. Robinson
with 30 days' advance notice of his removal. See 5 U.S.C. 7513(b)(1). During that advance
notice period, the VA could have received and evaluated Mr. Robinson's verbal and written
responses to the proposed removal. But the VA extended Mr. Robinson's response deadlines
beyond the statutorily required 30-day notice period without explanation and over Mr.
Robinson's express objections. See Letter from Julia Perkins to Kevin Hanretta dated June 16,
2014, enclosed as Ex. 4.
Mr. Robinson replied to the substance of the proposed removal in writing on June 13,
2014, keeping with the original submission deadline, and verbally, in person to the deciding
official, Assistant Secretary Kevin Hanretta, on July 11, 2014. See Ex. 1, at 1. The VA has thus
had the statutory authority to effect Mr. Robinson's removal since July 11, 2014, but it has
declined to exercise that authority. The proposed removal remains pending and Mr. Robinson
remains on paid administrative leave. See Letter from Julia Perkins to Kevin Hanretta dated May
12,2015, enclosed as Ex. 5.
Instead of taking action on the pending proposed removal, since at least December 2014,
the VA has engaged in activity that suggests it is attempting to uncover some act of misconduct
buried within Mr. Robinson's twenty-eight years of exemplary service to Veterans to
substantiate an adverse action against him. See Ex. 1. These actions create the logical inference
that the VA has already decided it cannot sustain the pending proposed removal before an
independent adjudicatory authority, 3 but remains determined to remove Mr. Robinson because of
the political pressure to do so.
2

Mr. Robinson was placed on administrative leave at the same time as his two Phoenix VA
colleagues, Health Administration Services Chief Brad Curry and former Director Sharon
Helman, while the VA Office of Inspector General investigated allegations of Veterans dying on
"secret" wait lists within the health care system.
3

If the VA were to sustain the currently pending proposed removal against Mr. Robinson, Mr.
Robinson would have the right to appeal his removal to the Merit Systems Protection Board
("MSPB"), where the VA would be required to prove its case against Mr. Robinson by a
preponderance of the evidence. See 5 U.S.C. 7701; 5 C.F.R. 1201.56(c)(2) (Defining

The Honorable John Hardy Isakson

The Honorable Richard Blumenthal
United States Senate Committee on Veterans' Affairs
December 28, 2015
Page 3

As far as Mr. Robinson is aware, he has been vindicated each time an independent
adjudicatory authority has reviewed any VA report regarding access issues and alleged
retaliation against a Phoenix VA employee, Ms. Paula Pedene. For example, the VA removed
Ms. Sharon Helman from her position as Director of the Phoenix VA and from the federal
service, in part, on allegations that she was responsible for access issues the Phoenix VA, relying
in part upon the same evidence it used to propose Mr. Robinson's removal for those same access
issues. On her subsequent appeal to the Merit Systems Protection Board ("MSPB"), an
administrative judge found the VA had failed to prove its allegations against Ms. Helman
regarding access issues at the Phoenix VA. See Helman v. Dep 't of Veterans Affairs, MSPB
Docket No. DE-0707-15-0091-J-1 (Dec. 22, 2014), enclosed as Ex. 6.
As part of her removal action, the VA also charged Ms. Helman with conduct she "knew
or should have known ... could be perceived as" whistleblower reprisal against Ms. Pedene,
relying upon an October 30, 2014 Administrative Investigation Board report issued by Mr.
Michael Culpepper, for which neither Ms. Helman nor Mr. Robinson were interviewed. 4 Id., at
21-22. But on Ms. Helman's appeal to the MSPB, the administrative judge exonerated Mr.
Robinson as to that allegation, concluding, "Robinson would have taken the same action (against
Ms. Pedene], Pedene's disclosures notwithstanding." 5 !d., at 32.

preponderance of the evidence as, "(t]he degree of relevant evidence that a reasonable person,
considering the record as a whole, would accept as sufficient to find that a contested fact is more
likely to be true than untrue."); see also Ex. 5, at n. 3 (" ... the Agency's refusal to issue a
decision on his proposed removal prevents Mr. Robinson from a name clearing before an
impartial adjudicator outside the Agency.").
4

As Dr. Shulkin told the Committee, the VA reached settlements with the Office of Special
Counsel ("OSC") on claims of whistleblower reprisal at the Phoenix VA. In a September 29,
2014 press release, OSC referred to the settlements as "significant." We note the VA reached
settlement with OSC on those claims before conducting the investigation it subsequently relied
upon in removing Ms. Helman. The VA's post-OSC settlement investigations, including Mr.
Culpepper's October 30, 2014 report on Ms. Pedene's claims, therefore appear little more than
the VA's effort to justify its settlements after the fact. In other words, the results of those
investigations appear pre-determined to find whistleblower reprisal to justify the VA' s hasty
settlement agreements.
5

The administrative judge also highlights the VA's own finding in Mr. Culpepper's report that
Ms. Pedene was observed violating agency computer security policies, apparently for a second
time, potentially justifying the allegedly retaliatory conduct against her. See Ex. 6, at 31.

The Honorable John Hardy Isakson

The Honorable Richard Blumenthal
United States Senate Committee on Veterans' Affairs
December 28, 2015
Page 4

Other processes insulated from the influence of VA Central Office management have also
vindicated Mr. Robinson regarding other allegations of misconduct. See Laney v. Dep 't of
Veterans Affairs, MSPB Docket No. DE-1221-15-0139-W-2 (Oct. 4, 2015), enclosed as Ex. 7, at
15 (finding Mr. Robinson "did not retaliate"); Ex. 1, at 2 (Mr. Robinson cleared of allegations of
discrimination against Employee A.); see also Letter from Julia Perkins to Paula Stokes dated
October 19, 2015, enclosed as Ex. 8 (summarizing details of VA investigations into Mr.
Robinson's conduct).
Against the backdrop of that reality, of which the VA is well aware, Dr. Shulkin provided
inaccurate information to the Committee during its Field Hearing. We now submit this written
testimony to provide you with additional information regarding the V A's actions against Mr.
Robinson and to correct Dr. Shulkin's testimony.

II. DISCUSSION
Dr. Shulkin provided inaccurate information to the Committee in his prepared opening
remarks and in response to questioning from Senator John McCain.
A. The VA's access to witnesses has not been impeded by either the Department of
Justice or the VA Office of Inspector General.
In his prepared opening remarks, Dr. Shulkin stated, "VHA's efforts to issue disciplinary
actions in Phoenix and to resolve the administrative leave status of two employees have been
delayed by inability to interview witnesses who have not been cleared by the U.S. Attorney's
Office ... " See Field Hearing Transcript, enclosed as Ex. 9, at 24. Dr. Shulkin repeated the
substance of that statement in response to a question from Sen. McCain, stating, "We would
very, very much like to conclude our administrative and disciplinary actions against those two
officials. The U.S. attorney as, I've said in my statement has prohibited us from interviewing
those individuals ... ". /d., at 32. Those statements are inaccurate.
While Mr. Robinson was still under criminal investigation, the VA called him to testify
about subjects including patient wait time issues and alleged retaliation against Ms. Pedene
before an Administrative Investigation Board ("AlB") on December 17, 2014, the same day he
was scheduled to testify as a witness for Ms. Helman in her MSPB appeal. 6 See Ex. 8, at 88-89
(Affidavit of Lance Robinson).

The VA cancelled Mr. Robinson's December 17, 2014 AlB interview soon after Ms. Helman
withdrew her request for a hearing.

The Honorable John Hardy Isakson

The Honorable Richard Blumenthal
United States Senate Committee on Veterans' Affairs
December 28, 2015
Page 5

On April 22, 2015, the U.S. Attorney's Office for the District of Arizona informed Mr.
Robinson that it would decline to prosecute him based on his conduct as Associate Director of
the Phoenix VA. See Ex. 1, at 2. Per our understanding of U.S. Department of Justice
procedures, the U.S. Attorney's Office would have notified the VA of the declination before or at
the same time it so informed Mr. Robinson. Investigators from the VA Office of Inspector
General subsequently interviewed Mr. Robinson for approximately six hours on June 9, 2015,
regarding access and whistleblower reprisal issues at the Phoenix VA. See Ex. 1, at 2. And an
AlB interviewed Mr. Robinson for another approximately six hours on October 21, 2015, also
regarding access and whistle blower reprisal issues at the Phoenix VA. !d., at 3.
In addition to those interviews, the VA also has obtained statements from Mr. Robinson
on a variety of other personnel matters while he has been on administrative leave. Mr. Robinson
provided those statements for VA investigations into Equal Employment Opportunity complaints
and for MSPB appeals by other employees. See Ex. 1.
Dr. Shulkin's statements regarding the alleged bases for delays in issuing disciplinary
actions in Phoenix based on the VA's inability to interview Mr. Robinson is thus inaccurate.
B. The VA has internally determined it cam10t sustain the currently pending May 30,
2014 proposed removal it issued to Mr. Robinson.
In his prepared opening remarks, Dr. Shulkin stated, "we have been unable to make a
determination what disciplinary action may be warranted related to the patients' scheduling wait
list issues [in Phoenix]." See Ex. 9, at 24. That statement is inaccurate.
Unless the VA proposed Mr. Robinson's removal for reasons other than those stated in
the proposed removal, on or before May 30, 2014, the VA determined through its Deputy Chief
of Staff that it has sufficient information regarding access issues at the Phoenix VA to remove
Mr. Robinson. See Ex. 3. But despite the passage of time and even Mr. Robinson's request that
the VA act on the proposed removal so that he can clear his name before the MSPB, the VA has
declined to issue a decision on the pending adverse action against Mr. Robinson. See Ex. 5.
The VA' s inaction indicates that it has determined it cannot sustain a charge of
misconduct against Mr. Robinson for wait list issues at the Phoenix VA before an independent
adjudicator. Dr. Shulkin's statement that the VA has been "unable to make a determination"
about what disciplinary action to take related to patients' scheduling wait list issues at the
Phoenix VA is thus inaccurate as applied to Mr. Robinson.

The Honorable John Hardy Isakson

The Honorable Richard Blumenthal
United States Senate Committee on Veterans' Affairs
December 28, 2015
Page 6

III. CONCLUSION
To clarify the record and to hold the VA accountable for its conduct toward Mr.
Robinson, who desires to return to duty serving Veterans, and for its statements to Congress, we
submit this written testimony and the enclosed exhibits for the public record of the Committee's
Field Hearing.
Sincerely,

Enclosures

TESTIMONY ON BEHALF OF LANCE ROBINSON

DECEMBER 28, 2015
EXHIBIT LIST

1. Summary of Investigations and Known Outcomes

2. Administrative Leave Memorandum
3. Notice of Proposed Removal
4. Letter from Julia Perkins to Kevin Hanretta dated June 16, 2014
5. Letter from Julia Perkins to Kevin Hanretta dated May 12, 2015
6. MSPB Docket No. DE-0707-15-0091-J-1 (Dec. 22, 2014)
7. MSPB Docket No. DE-1221-15-0139-W-2 (Oct. 4, 2015)
8. Letter from Julia Perkins to Paula Stokes dated October 19, 2015
9. Field Hearing Transcript