Testimony On Behalf of Lance Robinson2 (00064837x87C30)

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
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.

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

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.

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.

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.

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

Exhibit 1, p. 1
Lance Robinson
Summary of Investigations and Known Outcomes
December 28, 2015
1. May 2, 2014 U.S. Department of Veterans Affairs (VA) places Phoenix VA Health
Care System (Phoenix VA) Associate Director Lance Robinson and Phoenix VA
Director Sharon Helman on administrative leave.
2. May 28, 2014 VA Office of Inspector General (OIG) issues Interim Report titled,
Review of Patient Wait Times, Scheduling Practices, and Alleged Patient Deaths at the
Phoenix Health Care System.
3. May 30, 2014 VA proposes Mr. Robinsons and Ms. Helmans removal from federal
service based on their alleged culpability related to access issues at the Phoenix VA,
based solely on Interim VA OIG Report.
4. June 13, 2014 Mr. Robinson submits his written reply to the proposed removal to the
deciding official, Assistant Secretary Kevin Hanretta.
5. July 11, 2014 Mr. Robinson delivers his oral reply to the proposed removal to Assistant
Secretary Hanretta, completing full exercise of his response rights. VA has been legally
able to effect Mr. Robinsons removal since this date.
6. July 23, 2014 VA initiates Administrative Investigation Board (AIB) into allegations
that Mr. Robinson and Ms. Helman committed acts of whistleblower reprisal against
Phoenix VA employee Paula Pedene.
7. August 26, 2014 Without interviewing Mr. Robinson or Ms. Helman for the
investigation, VA OIG issues Final Report, titled Review of Alleged Patient Deaths,
Patient Wait Times, and Scheduling Practices at the Phoenix VA Health Care System,
finding, we are unable to conclusively assert that the absence of timely quality care
caused the deaths of these veterans. Final Report, at ii.
8. October 30, 2014 Without interviewing Mr. Robinson or Ms. Helman for the
investigation, VA issues final AIB report finding that Mr. Robinson and Ms. Helman
committed acts of reprisal against Ms. Pedene.
9. November 24, 2014 VA rescinds the May 30, 2014 proposed removal against Ms.
Helman and issues new proposed removal, proposing to remove her on matters including
access issues at the Phoenix VA and reprisal against Ms. Pedene, based upon the Final
OIG Report and the October 30, 2014 AIB report.
10. December 22, 2014 The Merit Systems Protection Board (MSPB) issues decision on
Ms. Helmans appeal of her removal action, finding VA failed to prove its charges
regarding access issues at the Phoenix VA and reprisal against Ms. Pedene. The MSPB
decision also concludes, Robinson would have taken the same action [against Ms.

Exhibit 1, p. 2
Lance Robinson
December 28, 2015
Page 2
Pedene], Pedenes disclosures notwithstanding, clearing him of the allegations of
whistleblower reprisal in the October 30, 2014 AIB report. MSPB Docket No. DE-070715-0091-J-1 (Dec. 22, 2014), at 32.
11. January 5, 2015 VA convenes an AIB to investigate, in part, Mr. Robinson in
connection with findings contained in the Office of Inspector General Oversight Report #
14-02603-267, dated August 26, 2014, and [t]he degree of knowledge, involvement,
and culpability for Lance Robinson, Associate Director, and Brad Curry, Chief of Health
Administration, in connection with claims of whistleblower retaliation against Paula
Pedene. AIB Charge Letter, at 1-2.
12. February 5, 2015 VA interviews Mr. Robinson as part of its investigation into the Equal
Employment Opportunity (EEO) complaint of one of his subordinates, Employee A,
regarding allegations that Mr. Robinson committed acts of discrimination against
Employee A.
13. February 17, 2015 Mr. Robinson provides a statement to VA for its investigation into
the EEO complaint of one of his subordinates, Employee B, regarding allegations that
Mr. Robinson committed acts of discrimination against Employee B. Mr. Robinson is
unaware of the status or outcome of this investigation.
14. April 22, 2015 U.S. Attorneys Office telephones Mr. Robinsons counsel and informs
them the criminal investigation into Mr. Robinsons conduct at the Phoenix VA is
closing.
15. May 12, 2015 Mr. Robinsons counsel writes to Assistant Secretary Hanretta,
requesting he inform them of when he anticipates issuing a decision on the May 30, 2014
proposed removal.
16. June 9, 2015 VA OIG issues Mr. Robinson a Kalkines warning and interviews him as
follow-up to its Final Report dated August 26, 2014.
17. September 15, 2015 An attorney from VA Office of General Counsel (OGC)
telephones Mr. Robinsons counsel and states the Mr. Robinson may expect to hear about
a decision on the May 30, 2014 proposed removal, hopefully before the end of 2015.
18. Mid-September, 2015 VA issues a Final Agency Decision (FAD) on Employee As
EEO complaint, finding that Mr. Robinson did not discriminate against Employee A. The
FAD determined Mr. Robinson acted appropriately in Employee As matter and that his
action in reprimanding a subordinate manager relieved the VA of any liability in
Employee As matter.
19. October 14, 2015 MSPB issues a decision on a complaint of whistleblower reprisal by
Phoenix VA Chief Financial Officer Tonja Laney, finding that VA did retaliate against

Exhibit 1, p. 3
Lance Robinson
December 28, 2015
Page 3
her for her protected whistleblowing activity, but expressly stating that Mr. Robinson
did not retaliate against [Ms. Laney]. MSPB Docket No. DE-1221-15-0139-W-2 (Oct.
14, 2015), at 15.
20. October 21, 2015 Mr. Robinson is interviewed by the AIB convened on January 5,
2015, on matters including access issues at the Phoenix VA and allegations of
whistleblower reprisal against Ms. Pedene.

Exhibit 2, p. 1

Exhibit 3, p. 1

Exhibit 3, p. 2

Exhibit 3, p. 3

Exhibit 3, p. 4

Exhibit 4, p. 1

Exhibit 4, p. 2

Exhibit 4, p. 3

Exhibit 5, p. 1

Exhibit 5, p. 2

Exhibit 5, p. 3

Exhibit 5, p. 4

Exhibit 5, p. 5

Exhibit 6, p. 1
UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD
DENVER FIELD OFFICE
SHARON HELMAN,
Appellant,
DOCKET NUMBER
DE-0707-15-0091-J-1
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.
DATE: December 22, 2014
Debra L. Roth, Esquire, Washington, D.C., for the appellant.

James P. Garay Heelan, Washington, D.C., for the appellant.
Julia H. Perkins, Esquire, Washington, D.C., for the appellant.
Bradley Flippin, Esquire, Nashville, Tennessee, for the agency.
Hansel Cordeiro, Esquire, Washington, D.C., for the agency.
Jeffrey T. Reeder, Esquire, Dallas, Texas, for the agency.
Kimberly Perkins McLeod, Esquire, Washington, D.C., for the agency.
Thomas R. Kennedy, Esquire, Denver, Colorado, for the agency.
BEFORE
Stephen C. Mish
Chief Administrative Judge
DECISION
On December 1, 2014, the appellant timely filed this appeal challenging the
agencys November 24, 2014 action removing her from her position as the Senior

Exhibit 6, p. 2
2
Executive Service (SES) Director of its Phoenix, Arizona Medical Center, and
from the federal civil service altogether. Appeal File (AF), Tab 1. The Board
has jurisdiction over the appeal pursuant to 38 U.S.C. 713(d)(2)(A).
For the reasons set forth below, the agencys action is AFFIRMED.
ANALYSIS AND FINDINGS
Outstanding Ruling
Due to issues with the agencys discovery responses, the parties were
ordered to brief the issue of whether an adverse inference should be drawn
against the agency with regard to those responses. Having considered the parties
arguments, no adverse inference will be drawn against the agency. The shortened
process of 38 U.S.C. 713 is new. Expecting the agency to accomplish in a few
days what normally requires several weeks or more to do correctly is simply not
realistic. 1 By that same token, although as ruled previously, the appellant could
be subject to an adverse inference for not responding to the agencys discovery
requests by invoking the Fifth Amendment right against self-incrimination, she
will not be. She is caught between a Scylla and Charybdis of criminal and civil
processes focused on overlapping events.
Therefore, both parties claims are
decided based on the evidence they adduced to support them.

Findings of Fact
The preponderant evidence of record establishes the following. 2 Over the
course of a decade, the agencys Office of Inspector General (OIG) publicly
reported a variety of concerns with agency medical care facilities across the
country, which included allegations of altered patient appointment lists, and the
As the agency gains more experience in these cases, it may be expected to have a
better system for responding to discovery in place.
2
Record citations are to the pagination applied by the Boards electronic docketing
system.

Exhibit 6, p. 3
3
failure to use electronic wait lists (EWL). (AF, Tab 48, p. 16). Indeed, since
2005, the OIG has issued at least 18 reports identifying deficiencies in scheduling
at the local and national level, (AF, Tab 6, p. 38).
Specifically with respect to Phoenix VA Health Care System (PVAHCS),
on September 2, 2006, the OIG wrote a memorandum to the then-Director
regarding allegations of altered patient wait times and the failure to use the EWL
(AF, Tab 41, p. 165). In it, the OIG concluded that PVAHCS had engaged in an
accepted practice of altering appointments to avoid wait times greater than 30
days in an effort to improve performance measures (Id.).
The appellant was first appointed to the Senior Executive Service in 2007
as the director of an agency facility in Walla Walla, Washington. (AF, Tab 18,
SF-50, p. 35).
She later transferred to Hines, Illinois as the director of the
agencys facility there. (Id. p. 33). On February 26, 2013, the appellant
transferred to Phoenix and became the PVAHCS Director. (Id.). At that point,
her direct supervisor was Veterans Integrated Service Network (VISN) 18
Director Susan Bowers. (AF, Tab 71, Appellants Merits Brief, Bowers Decl. p.
76).
As the SES Director of the PVAHCS, the appellant was responsible for a
wide range of oversight of operations. (AF, Tab 6, Performance Assessment, pp.
24-34). For example, the appellant was generally tasked with broad goals such as
developing an organizational vision, balancing change and continuity, fostering
high ethical standards, and the like. (Id., pp. 25-26). These broad goals were
further fleshed out by more specific directives such as, The SE will increase
high performing inter-professional team-based care to achieve patient-driven
health care and coordination of care across all care settings, both within and
outside VHA.
(Id., p. 28). The appellant was also generally responsible for
leading the staff and, when necessary, holding employees accountable for
appropriate levels of performance and conduct. (Id., p. 25).

Exhibit 6, p. 4
4
Very early on after the appellant moved to Phoenix, likely the evening
before her first official day of work, she spoke with Dr. Katherine Mitchell, who,
at the time, was the Director of the PVAHCS Emergency Department (ED). (AF,
Tab 8, Mitchell Interview; pp. 61-62). During that meeting, Dr. Mitchell reported
to the appellant that the ED was so understaffed and so dangerous that, in her
opinion, it needed to be shut down. (Id., pp. 23, 61-62, 63).
Nevertheless,
according to Dr. Mitchell, the appellant did not follow up with her on the matter,
although, for her part, Dr. Mitchell did not follow up with the appellant, either.
(Id., p. 65). In any event, Dr. Mitchell continued to raise the issue of ED staffing
with others, as reflected in her June 6, 2012 memo to ED Nurse Manager
Catherine Gibson regarding her concerns with the conduct and insufficient skill
level of a particular ED nurse during a busy night. (AF, Tab 7, p. 73).
Not long after the appellant began her position in Phoenix, in or around
March or April of 2012, PVAHCS Public Affairs Officer Paula Pedene briefed
the appellant regarding her allegations of a hostile work environment under the
prior Director, Gabriel Perez. (AF, Tab 10, Pedene Tr., pp. 12, 14). Pedene
informed the appellant of various concerns she had about how Perez had berated
and belittled employees, and how, to her observation, the PVAHCS staff did not
trust him. (Id., 13). The meeting lasted approximately 30-45 minutes. (Id., p.
16).
On December 3, 2012, Dr. James Felicetta, the PVAHCS Chief of
Medicine, administratively reassigned Dr. Mitchell, effective December 10, 2012,
from the ED to the Operation Enduring Freedom, Operation Iraqi Freedom, and
Operation New Dawn Clinic, where she would report directly to Dr. Christopher
Burke. (AF, Tab 7, Felicettas Memorandum, p. 71). According to Dr. Felicetta,
the reassignment was because PVAHCS had identified a greater need for Dr.
Mitchells services in another area, and Dr. Felicetta took the opportunity to
express his sincerest appreciation for Dr. Mitchells hard work, dedication,

Exhibit 6, p. 5
5
and leadership that [she] provided for our veterans in the Emergency
Department. (Id.).
In late November 2012, Pedenes husband, who was an agency volunteer,
not an employee, was observed by a PVAHCS employee working on her
computer and, this employee informed Robinson of his observation. (AF, Tab 11,
Subtab 27, Pedene ROI, p. 70).
By memorandum dated December 10, 2012,
PVAHCS Associate Director Lance Robinson informed Pedene that she was being
temporarily reassigned for an initial period of 30 days to the hospitals Education
Section. (AF, Tab 9, p. 33). Robinsons stated that the reassignment was due to
an allegation of possible misconduct by Pedene, but the misconduct was not
further described (Id.).
On about July 22, 2013, Dr. Mitchell contacted Arizona Senator John
McCains office expressing various concerns about veterans medical care and
recent suicide trends at PVAHCS. (AF, Tab 7, Subtab 11, Mitchell Issue Brief, p.
68; Tab 9, Mitchell Complaint Summary, pp. 8-17). Among other things, Dr.
Mitchell requested that the OIG dispatch an investigative team to conduct a
PVAHCS investigation. (Id.). In response to Dr. Mitchells contact, by letter
dated September 4, 2013, Senator McCains office wrote to agency Deputy
Director of Legislative Affairs, Adam Anicich, and reiterated Dr. Mitchells
request for an out-of-state OIG investigation of PVAHCS regarding a variety of
topics, including the number of suicides since 2010, and the confusing and
confidential nature of the electronic wait list for veterans to be seen by a
physician. (AF, Tab 9, McCain Letter, p. 6).
By memorandum dated September 20, 2013, the appellant placed Dr.
Mitchell on administrative leave pending the outcome of a fact finding
investigation. (AF, Tab 7, Mitchell Leave Memorandum, p. 64). Although not
stated in the memorandum, the reason for the administrative leave and fact
finding is reflected in an October 2, 2013 Issue Brief regarding Dr. Mitchells
alleged inappropriate access to veteran charts (AF, Tab 7, Subtab 11, Mitchell

Exhibit 6, p. 6
6
Issue Brief, p.68).
The focus was Dr. Mitchells 16-page letter to Senator
McCains office regarding medical care issues and recent suicide trends, as well
as Dr. Mitchells request that the OIG dispatch an investigative team to PVAHCS
to conduct an investigation. (Id.).
According to the Issue Brief, Dr. Mitchell
accessed the medical chart without a role based need[.] (Id.). Additionally, on
December 19, 2013, Dr. Burke, Chief of Ambulatory Care, provided Dr. Mitchell
with a written non-disciplinary counseling regarding the fact that Dr. Mitchell
may have disclosed personally identifying health information without following
applicable policy and procedures. (AF, Tab 7, Subtab 10, Mitchell Counseling, p.
66).
According to Dr. Burke, Dr. Mitchell was being counseled for making
disclosures of personally identifying patient information that was outside the

normal functions of her position.
(Id.).
The memorandum counseled Dr.
Mitchell that, in the future, any such disclosure needed to be vetted through the
appropriate agency Privacy Officer first. (Id.).
On April 9, 2014, Congressman Jeff Miller, Chairman of the House
Committee on Veterans Affairs, announced allegations that Veterans were dying
while waiting on secret wait lists to receive care at PVAHCS. (AF, Tab 45, Ex.
bbb, Safety Letter, p. 173).
Thereafter, many politicians took interest in the
operations of the PVAHCS and the appellant, herself. For example, in a letter
dated April 14, 2014, Congressmen David Schweikert, Trent Franks and Matt
Salmon wrote to the appellant directly to express their great concerns with the
indication that, under her leadership, there were secret lists to keep patient wait
times artificially low.
(AF, Tab 35, Ex. s, Schweikert Letter, p. 22).
They
asserted that Because of [her] and [her] leadership teams choices, forty or more
veterans have died due to lack of care. (Id.). The Congressmen called upon the
appellant and other PCAHCS managers to resign. (Id.). On that same date, the
Congressmen also wrote to then-Secretary Eric Shinseki and requested that he
immediately remove the PVAHCS leadership team from their positions. (AF, Tab
35, Ex. t, Schweikert Letter, p. 23).

Exhibit 6, p. 7
7
On May 2, 2014, the appellant and Robinson were both placed on
administrative leave by order of the Secretary. (AF, Tab 35, Exs. w-y, pp. 3436). On May 21, 2014, President Obama announced that he would not stand for
misconduct within the VA health system, and that anyone found to have falsified
records would be held accountable. (AF, Tab 36, Ex. ee, Presidents Statement,
pp. 11-14).
At the same time, however, the President announced the need to
allow the investigators looking in to the matter to gather the facts and get to the
bottom of the situation before making any judgments. (Id.).
Next, on May 28, 2014, the OIG issued an Interim Report regarding
PVAHCS. (AF, Tab 6, Ex. 5, Interim OIG Report, pp. 36-70). The OIG was
asked to investigate various allegations, including gross mismanagement of VA
resources and criminal misconduct by VA senior hospital leadership, creating
systematic patient safety issues and possible wrongful deaths. (Id., p. 38). As
stated in the Interim Report, some of these issues were not new: since 2005 the
agencys OIG had issued 18 reports that identified deficiencies in scheduling at
the local and national level. (Id.).
The OIG Interim Report focused on two issues: (1) Did the facilitys
electronic wait list (EWL) purposely omit the names of veterans waiting for care
and, if so, at whose direction? (2) Were the deaths of any of these veterans
related to delays in care? (Id., p. 39). In terms of conclusions, the Interim Report
substantiated serious conditions and identified 1700 veterans who were waiting
for a primary care appointment but were not on the EWL. (Id., p. 40).
The
Interim Report also concluded that the Phoenix HCS leadership significantly
understated the time new patients waited for their primary care appointment in
their FY 2013 performance appraisal accomplishments, which is one of the
factors considered for awards and salary increases. (Id.). The OIG also found
the use of wait lists at PVAHCS, other than the office EWL, which may have
been basis for allegations regarding the creation of secret lists. (Id.).

Exhibit 6, p. 8
8
Following the release of this interim report, on May 30, 2014, the agencys
Deputy Chief of Staff Hughes Turner proposed the appellants removal. (AF, Tab
18, Subtab 3d, p. 29). The proposal letter included one charge: failure to provide
oversight. (Id.). The specifications were based on the OIG Interim Report. (Id.)
The agency, however, did not make a decision on this proposed removal.
In the meantime, the OIG was still investigating the circumstances at the
PVAHCS and was also examining allegations about the appellant, herself. On
August 26, 2014, the OIG issued its final report. (AF, Tab 6, Ex. 6, Final OIG
Report, pp. 72-214), which reached the following conclusions:
While the case reviews in this report document poor quality of care,
we are unable to conclusively assert that the absence of timely quality care
caused the deaths of these veterans. (Id., p. 77);
The OIG identified numerous veterans who were on unofficial wait
lists, but not on the official EWL. (Id., p. 78);
PVAHCS senior administrative and clinical leadership were aware
of unofficial wait lists and that access delays existed. Timely resolution of these
access problems had not been effectively addressed by PVAHCS senior
administrative and clinical leadership. (Id.);
As a result of using inappropriate scheduling practices, reported
wait times were unreliable, and we could not obtain reasonable assurance that all
veterans seeking care received the care they needed. (Id.);
The emphasis by Ms. Sharon Helman, the Director of PVAHCS, on
her Wildly Important Goal (WIG) effort to improve access to primary care
resulted in a misleading portrayal of veterans access to patient care. Despite
claimed improvements in access measures during fiscal year
(FY) 2013, we
found her accomplishments related to primary care wait times and the third-next
available appointment were inaccurate or unsupported. (Id., p. 79).
The Final OIG Report focused on five questions. (Id., p. 76). First, were
there clinically significant delays in care? On that issue, the OIG concluded that

Exhibit 6, p. 9
9
there were access barriers that adversely affected the quality of primary and
specialty care provided for them. (Id., p. 113). Second, did PVAHCS omit the
names of veterans waiting for care from its Electronic Wait List (EWL)? For that
issue, the OIG concluded as follows: PVAHCS maintained what we determined
to be unofficial wait lists, and used inappropriate scheduling processes, which
delayed veterans access to health care services.
We identified over 3,500
additional veterans who were waiting to be scheduled for appointments. Those

3,500 veterans were not on the EWL as of April 2014; most were on what we
determined to be unofficial wait lists. PVAHCS management was aware of many
of the documents that we identified as unofficial wait lists and that access delays
existed in PVAHCS. Senior PVAHCS administrative and clinical leaders did not
effectively address these access problems. (Id., p. 128). Third, were PVAHCS
personnel following established scheduling procedures? In that respect, the OIG
concluded as follows: that PVAHCS personnel did not always follow established
VHA scheduling practices, and that [s]ome schedulers acknowledged that they
manipulated appointment dates by using prohibited scheduling practices because
of pressure to meet wait time goals imposed by leaders at VHA and PVAHCS;
as a result, reported wait times were unreliable, and the actual wait times were
unknown to key stakeholders. (Id., p. 134). Fourth, did the PVAHCS culture
emphasize goals at the expense of patient care? On that issue, the OIG concluded
as follows: that PVAHCSs emphasis on goals resulted in a misleading portrayal
of veterans access to patient care. Despite Ms. Helmans claims of successful
improvements
in
access
measures
during
FY
2013,
we
found
those
accomplishments were inaccurate and unsupported. (Id., p. 144). Fifth, were

scheduling deficiencies systematic throughout VHA?
On that issue, the OIG
offered recommendations, but there were no formal conclusions. (Id.).

Also during this period following the May 30, 2014 proposed removal, the
agency was conducting internal investigations in to the actions taken against Dr.
Mitchell and Pedene. By memo dated September 16, 2014, Mike Culpepper, of

Exhibit 6, p. 10
10
the agencys Office of Accountability Review, issued a Report of Investigation
regarding Dr. Mitchells allegation that she was subject to whistleblower reprisal.
(AF, Tab 7, Ex. 14, Mitchell ROI, pp. 77-94).
Among other things, the
Culpepper Report of Investigation sustained Dr. Mitchells retaliation claim

against Dr. Deering, Dr. Piatt, and Claflin for allowing staff to persist in their
hostile and insubordinate attitude toward Dr. Mitchell, and their failure to timely
and thoroughly review Dr. Mitchells allegations. (Id., p. 93). This report also
found that Dr. Deering engaged in retaliation by reassigning Dr. Mitchell, even
though it was based on Dr. Deerings stated desire to remove Dr. Mitchell from a
malignant situation in the ED, because that situation developed as a result of
Dr. Mitchells disclosures. (Id., p. 93). The report also concluded that it was
within Dr. Mitchells area of responsibility to report on ways to reduce patient
suicides, such that it was retaliation to issue her written counseling for violating
patient privacy in that respect. (Id., p. 94). The report also sustained a finding of
retaliation with respect to Dr. Mitchells FY 10, 11 and 12 performance ratings,
which included comments regarding delays in scheduling, and adverse
interactions with nursing staff, which went to the core of Dr. Mitchells
disclosures. (Id.). The report recommended administrative action against those
who had retaliated against Dr. Mitchell. (Id.). This report did not include any
express conclusions about the appellant retaliating against Dr. Mitchell, but did
mention the appellants September 2013 decision to place Dr. Mitchell on
administrative leave, which was related to her possible release of patients
information to Senator McCain. (Id., p. 78).
With regard to Pedene, on October 30, 2014, Culpepper issued a second
report regarding Pedenes allegations of whistleblower reprisal. (AF, Tab 11, Ex.
27, Pedene ROI, pp. 64-84). This report concluded that Pedene had been subject
to retaliation regarding her reporting of the prior directors actions.
It
recommended that [a]ppropriate administrative action should be initiated against

Ms. Helman and Mr. Robinson for engaging in retaliatory acts related to Ms.

Exhibit 6, p. 11
11
Pedenes detail, and the manner in which the subsequent investigations regarding
alleged computer violations and misuse of appropriated funds were conducted
(Id., p. 83).
Following the issuance of this report, the agency rescinded the May 30,
2014 proposal notice. (AF, Tab 18, Subtab 3c, Recession Letter, p. 27). By
memorandum titled Pending Action (PAM) dated November 10, 2014, Sloan
Gibson, the Deputy Secretary of Veterans Affairs, notified the appellant he was
proposing to remove her under the provisions of the recently passed Veterans
Access, Choice and Accountability Act of 2014. (AF, Tab 1, PAM, pp. 9-13).
The new removal notice was based on three charges. Id.
The appellant responded to the proposal through counsel. In her November
17, 2014 response, the appellant contended she was being scapegoated for the
PVAHCS situation to protect higher level agency leaders and voiced her belief
that she would be removed to appease various Congresspersons no matter what
she said. (AF, Tab 1, PAM Response, p. 18-19). She also made various legal
arguments as to why the agencys actions toward her were improper and why, on
appeal, it would not be able to prove the charges it brought. (Id.)
On November 24, 2014, Deputy Secretary Gibson sustained his proposal
and removed the appellant from her position and the federal service. (AF, Tab 1,
Removal Letter, pp. 31-33). This appeal followed.
I reserve additional findings for discussion below.
Background Legal Standards
The agency must prove its charged misconduct by preponderant evidence.
See 5 C.F.R. 1210.18(a). That is the degree of proof which is more probable
than not. Blacks Law Dictionary, 1182 (6th ed.)
See also 5 C.F.R.
1201.56(c)(2) (a preponderance of the evidence is that degree of relevant

evidence that a reasonable person, considering the record as a whole, would

Exhibit 6, p. 12
12
accept as sufficient to find that a contested fact is more likely to be true than
untrue).
A misconduct charge typically consists of two parts, a name or label that
generally characterizes the misconduct and a narrative description of the alleged
acts that constitute the misconduct. See Alvarado v. Department of the Air Force,
103 M.S.P.R. 1, 9 (2006) (citing Otero v. U.S. Postal Service, 73 M.S.P.R. 198,
203 (1997)). Where an agency uses general charging language for its label,
language which does not describe the misconduct with particularity, one must
look to the specification to determine what conduct the agency is relying on as
the basis for its proposed disciplinary action. See LaChance v. Merit Systems
Protection Board, 147 F.3d 1367, 1371 (Fed. Cir. 1998). The Board is required
to review the agencys decision on a disciplinary action solely on the grounds
invoked by the agency; it may not substitute a more adequate or proper basis. See
Minor v. U.S. Postal Service, 115 M.S.P.R. 307, 311 (2010); Walker v.
Department of Army, 102 M.S.P.R. 474, 477 (2006); Gottlieb v. Veterans
Administration, 39 M.S.P.R. 606, 609 (1989).
If the agency proves misconduct by the appellant, its chosen penalty is
presumed reasonable and will be upheld unless the appellant adduces
preponderant evidence that the agencys chosen penalty is unreasonable under all
the circumstances of the case. See 5 C.F.R. 1210.18(a), (d); 2 McCormick On
Evidence 342, 344 (7th ed.) If the appellant meets that burden, the agencys
action must be reversed. See 5 C.F.R. 1210.18(a), (d).
With her affirmative defenses, the appellant must prove them by
preponderant evidence. 5 C.F.R. 1210.18(b)(3), (c). With her claim of harmful
error, the appellant must prove there was a law, rule or regulation applicable to
the removal proceedings, the agency did not follow it, and that, if it had been
followed, the agency was likely to have reached a different decision on her
removal. See 5 C.F.R. 1201.56(c)(3), 1210.18(c); Cornelius v. Nutt, 472 U.S.
648, 657-59 (1985) (harmful error is not defined in 5 U.S.C. 7701 and the

Exhibit 6, p. 13
13
Board defines it by regulation). With her claim of denial of due process, the
appellant must prove that the agency did not provide her with a meaningful
opportunity to respond to its proposal notice.
See Stone v. Federal Deposit
Insurance Corporation, 179 F.3d 1368, 1376 (Fed. Cir. 1999).

The agency has proven the appellant engaged in misconduct.
The agency brought three charges of misconduct against the appellant. The
first was styled Lack of Oversight and the agency set out four specifications to
support it.
This is generalized charging language and the specifications
supporting the charge determine what the agency must prove. See LaChance, 147
F.3d at 1371. The first, Specification A, stated, in its entirety:
In report number 14-02603-267, issued on August 26, 2014, the
Department of Veterans Affairs (VA) Office of Inspector General
(OIG) determined that the Phoenix VA Health Care System
(PVAHCS) did not include all Veterans who were waiting to be
scheduled for an appointment on an electronic wait list (EWL).
According to VHA Directive 2010-027, the EWL is the official
wait list for outpatient clinical care appointments and no other
wait lists should be used for tracking requests for outpatient
appointments. As of around April 2014, numerous Veterans were
waiting to be scheduled for an appointment at PVAHCS but were
not on the EWL. As the Director of PVAHCS, you knew or
should have known that PVAHCS was not in compliance with
VHA Directive 2010-027.
(AF, Tab 1, PAM, p. 9).
This specification cannot be sustained because, although it sets forth a state
of affairs at the PVAHCS which the agency found unacceptable, it does not
expressly set forth any particular actions or inactions by the appellant which
could constitute misconduct by her. See LaChance, 147 F.3d at 1371 (we must
look to the specification to determine what conduct the agency is relying on)
(emphasis added). One can be supplied through implication. For example, while
it is not stated in the charge, adding a line to the effect of and you did not
attempt to bring it in to compliance or perhaps you allowed that state of affairs
to persist would set forth something the appellant did or failed to do.
The

Exhibit 6, p. 14
14
problem with expressly adding what is implied, however, is that I would be
guessing at what the agency intended and adding terms to the agencys charge
letter that the agency did not put there itself. 3 Such modification of the agencys
specification at this stage of proceedings is impermissible.
See Minor, 115
M.S.P.R. at 311; Walker, 102 M.S.P.R. at 477; Gottlieb, 39 M.S.P.R. at 609.

More generally, as the Director of the PVAHCS, the appellant was not
personally tasked with doing the day-to-day data entry to place a veteran on the
EWL. (AF, Tab 6, Performance Assessment, pp. 24-34). To the extent an agency
wishes to hold a manager responsible for any failures of his or her subordinates,
i.e., those that occur on his or her watch, it may do so. See, generally, Miller v.
Department of Navy, 11 M.S.P.R. 518, 521 (1982) (A supervisor, by his very
position, may be held accountable for improprieties stemming from the actions of
his subordinates).
However, in order to do so, an agency must identify the
subordinates, show what the subordinates failures were, show why the manager
should have known about them and show that he or she failed to take action to
correct the identified failures. See id. at 519-21. See also Mauro v. Department
of Navy, 35 M.S.P.R. 86, 91-93 (1987) (same). To phrase it more colloquially, an
agency must connect the dots of fault from the identified failure by the
subordinates back up the line to the manager. The agency did not attempt to do
so here. 4 Accordingly, this specification is not sustained.
This omission is made more glaring when Specification A is compared to

Specification B, which also describes an unacceptable state of affairs, but which
explicitly states what the agency contends the appellant failed to do about it but should
have.
4
The agency argues for a different rule of law, one of strict liability, in essence. It
contends, Appellants actual knowledge of the deficiency is immaterial, since the
specification falls under a charge of lack of oversight. Effectively, whether or not
Appellant knew that PVAHCS was not in compliance with the Directive, it was her
responsibility to ensure that the facility was in compliance, and she neglected her duty
to do so. (IAF, Tab 71, p. 12). It cites no authority for such a no-fault proposition, I
am aware of none and I decline to adopt it. Statutes are to be interpreted by starting

Exhibit 6, p. 15
15
The next specification, Specification B, supporting the charge of Lack of
Oversight alleged that:
According to OIG report number 14-02603-267, around October
2012, PVAHCS data management staff identified a backlog of
approximately 2,500 new patient appointments in Primary Care
that were scheduled later than December 1, 2012. Some of these
appointments were scheduled for almost a year in the future.
Despite efforts to reduce the backlog, approximately 544 of the
2,501 Veterans had not received Primary Care appointments as of
March 31, 2014. As of August 26, 2014, approximately 143 of
these patients had still not received a Primary Care appointment.
As the Director of PVAHCS, you knew or should have known that
the backlog for Primary Care appointments could have
jeopardized patient care and safety. Consequently, you should
have taken immediate action to remedy the situation or notified
your senior leadership so they were aware and could assist
PVAHCS.
(AF, Tab 1, PAM, p. 9).
Thus, the agency must prove the appellant either did not take immediate
action to remedy the situation or that she did not notif[y] [her] senior
leadership of it. See LaChance, 147 F.3d at 1371; Chauvin v. Department of the
Navy, 38 F.3d 563, 565 (Fed. Cir. 1994); James v. Department of the Air Force,
73 M.S.P.R. 300, 304 (1997). In support of this specification, the agency relies
almost exclusively on a particular page of the OIG Final Report. (AF, Tab 71,
Agencys Merits Brief, pp. 12-15).
This is permissible.
See Addison v.
Department of Health and Human Services, 46 M.S.P.R. 261, 269 (1990) (While
with the plain meaning of their language. Hawkins v. United States, 469 F.3d 993, 1000
(Fed. Cir. 1996). Section 713 speaks in terms of misconduct. That term is defined in
the statute to mean neglect of duty, malfeasance, or failure to accept a directed
reassignment[.] 38 U.S.C. 713(g)(2). Neglect of duty is not itself specifically
defined, and the common definition of neglect is to give little attention or respect to:
disregard or to leave undone or unattended to esp. through carelessness. MerriamWebsters Collegiate Dictionary, 829 (11th ed. 2003). Thus, even under the agencys
theory of neglect of duty, the agency would have to prove there was something the
appellant was supposed to do, some task or undertaking she was to accomplish, but that
she left undone or disregarded.

Exhibit 6, p. 16
16
it is true that the agency did not introduce the original workpapers on which the
removal action was based, the Board has found that the introduction of such
original sources is not required to sustain an agency action). That portion of the
OIG Final Report recounts that, in October of 2012, approximately eight months
after the appellant started in Phoenix, data management employees of the division
of the agency known as the Health Administration Service (HAS) identified
new patient appointments in Primary Care that were scheduled later than
December 1, 2012. (AF, Tab 6, Subtab 6, Final OIG Report, p. 120). According
to the OIG report, [s]ome of these appointments were scheduled for almost a
year in the future and these delayed appointments represented a backlog of
2,501 appointments. (Id.). The report states that [t]he goal at the time was to
divide that backlog of new patient appointments up among the primary care
providers available and get them earlier appointments. (Id.). According to the
report, HAS staff distributed these waiting patients among 43 providers, 28 of the
providers at the main Phoenix facility with the remainder at external agency
clinics. (Id.). As set forth in the report, [d]espite the effort to redistribute the
veterans to other providers with the intent of getting an earlier appointment, we
determined 544 of the 2,501 veterans had not received Primary Care
appointments as of March 31, 2014. (Id.). The OIG report then recounts that its
investigators went through the electronic health records of 200 of the 544
veterans who had still not had an appointment by that time. Id. Of that 200, 143
were still waiting to be seen, with the remainder no longer needing an
appointment for various reasons ranging from moving out of the Phoenix area all
the way to the death of the waiting patient. (Id.).
The appellant challenges the overall accuracy of the report, beginning with
the fact she was not interviewed by the OIGs investigators for it. She does not,
however, take specific issue with the accuracy of the numbers contained in this
section of the OIG report. Rather, she contends that this specification should
fail because: 1) Ms. Helmans team did make significant, effective efforts to

Exhibit 6, p. 17
17
reduce the primary care backlog, as described in the text of the specification; 2)
those aware of the actual circumstances at the Phoenix VA knew the backlog
could not have been immediately eliminated; and 3) the Phoenix VA backlog
was well known to senior Agency leadership at both the VISN 18 and VACO
levels. (AF, Tab 70, Appellants Merits Brief, p. 40).
The agency has not proven the appellant failed to take immediate action to
remedy the situation[.] As set forth in the very same paragraphs of the OIG
Final Report on which the agency relies, a plan was instituted at the time to
divide these backlogged patients up among primary care providers to get them in
sooner, and this was, in fact, done, with each provider getting approximately 67
of these patients. (AF, Tab 6, Subtab 6, Final OIG Report, p. 120). The remedy
was not fully effective, such that each and every one of these veterans had been
seen by March 31, 2014 upon the OIGs follow up, but the vast majority had
been. This specification does not assert that the appellant should have seen to it
that all of these patients were seen before March 31, 2014 but did not, although it
could have been written that way had the agency chosen to do so. Again, the
agency must prove specifically what it charges, and I may not modify its
language for it. See Minor, 115 M.S.P.R. at 311; Walker, 102 M.S.P.R. at 477;
Gottlieb, 39 M.S.P.R. at 609.
See also Parbs v. U.S. Postal Service, 107
M.S.P.R. 559, 564 (2007) (the agency is required to prove the charge as it is set
out in the notice of proposed removal, however, not some other offense that
might be sustainable by the facts of the case).
Charge 1, Specification B, also alleges, in the alternative, that the appellant
did not notif[y] [her] senior leadership about this 2,501 patient backlog in
primary care. 5 With this second prong of Specification B, the appellant takes
It is unclear what specific persons or offices the term senior leadership is meant to
encompass. Perhaps that is by design, perhaps not. As will be explained below, failure
to identify them and submit evidence from them about whether or not the appellant

Exhibit 6, p. 18
18
issue with the implication that the agencys senior leadership was unaware of
problems with getting all veterans who put in for appointments and needed to be
seen actually seen.
The agency concedes, through the declaration of Barbara
Schuster, Associate Director of the Veterans Health Administration Access and

Clinical Administration Program, that VHA was aware of pockets of
scheduling issues occurring sporadically throughout the nation[.] (AF, Tab 71,
Schuster Declaration, p. 50). I find it more likely than not that at least some
senior agency leaders were aware, or should have been, of nationwide problems
getting veterans scheduled for timely appointments at or around the times of the
events described in this specification, and that the agencys Phoenix facilities, as
a part of the nationwide system, also had those problems. (AF, Tab 70, Petzel
Affidavit, p. 74; Bowers Declaration, pp. 76-80).
Nevertheless, the implied
assertion that senior leaders were unaware of that problem and would have
provided help had they only known is not something the agency needs to prove in
order to sustain this specification.
It is a description of surrounding
circumstances, accurate or not, for the appellants alleged failure to notify, which
is the misconduct at issue. See Larry v. Department of Justice, 76 M.S.P.R. 348,
355 (1997); Lawton v. Department of Veterans Affairs, 53 M.S.P.R. 153, 156
(1992).
In reviewing the evidence for this specification, I am mindful that the
appellant does not need to disprove the charges against her.
Cf. Jackson v.
Veterans Administration, 768 F.2d 1325, 1329 (Fed. Cir. 1985) (the agency [is]
in the position of a plaintiff bearing the burden of first coming forward with
evidence to establish the fact of misconduct, the burden of proof, and the ultimate
burden of persuasion, with respect to the basis for the charge or charges. The
employee (while denominated appellant) has the advantageous evidentiary
informed them of the October 2012 2,501 patient backlog does not redound to the
agencys advantage.

Exhibit 6, p. 19
19
position of a defendant with respect to that aspect of the case).
This
specification sets forth two particular actions the appellant is alleged not to have
done with regard to a particular set of circumstances and refers the reader to the
Final OIG Report detailing those circumstances. An agency may rely on a failure
to deny specific, detailed charges as part of its proof. See Berkner v. Department
of Commerce, 116 M.S.P.R. 277, 279, 285 (2011) (an appellants failure to deny
specific allegations was considered in determining whether an agency had met its
burden); Bixby v. U.S. Dept. of Agriculture, 24 M.S.P.R. 13, 19 & n.4 (1984)
(same); Duncan v. U.S. Dept. of Educ., 15 M.S.P.R. 31, 32 n.2 (1983) (same). A
failure to deny detailed charges is not, however, sufficient by itself. Delancy v.
U.S. Postal Service, 88 M.S.P.R. 129, 133 (2001) (where the letter of charges is
not merely conclusory, but sets forth in great factual detail the employees errors
and deficiencies, and where the notice is corroborated by other evidence, the
letter of charge may be considered as forming part of the agencys valid proof)
(emphasis original).
In none of her own statements, or those of her attorneys made on her
behalf, at any point after she received the agencys PAM, or even the first,
rescinded proposed removal, does the appellant assert that she did alert someone
above her about the 2,501 veteran backlog for primary care appointments
revealed in October 2012. (AF, Tab 1, Appellants Response to PAM; Tab 40,
Ex. ww, Appellants Response to Proposed Removal; Tab 70, Appellants Merits
Brief; Tab 72, Appellants Response Brief).
Although she submitted a
declaration from her immediate superior, Susan Bowers, in which Bowers attests
that she regularly worked with and had many conversations with Ms. Helman
about what and how VISN 18 officials would assist PVAHCS to improve the
scheduling process, and thus decrease the backlog of veteran clients waiting for
appointments[,] at no point does Bowers aver that the appellant ever raised the
issue of the October 2012 2,501 veteran backlog with her.
Appellants Merits Brief, Bowers Decl. p. 76).
(AF, Tab 71,

Exhibit 6, p. 20
20
The question then becomes, what other proof has the agency offered to
establish the appellant did not notify senior leadership about this backlog. See
Delancy, 88 M.S.P.R. at 133. Based on how the agency framed this specification,
it must prove a negative, that senior leadership was not notified about this
October 2012 backlog by the appellant. Absent an admission by the appellant,
which she has not offered, to prove the lack of notification, the agency would
have to adduce affidavits from whatever real persons comprised senior
leadership at the time saying, She did not notify me about that. It has not
done so. I conclude that a detailed proposal which is not specifically denied is,
without more, too slender a reed to constitute preponderant evidence. See
Delancy, 88 M.S.P.R. at 133. This specification is not sustained.
The penultimate specification for this charge, Specification C, alleges:
On or around June 6, 2012, Dr. Katherine Mitchell, then Director
of the PVAHCS Emergency Department, sent a report of contact
to Catherine Gibson, Nurse Manager for the Emergency
Department. In this report of contact, Dr. Mitchell disclosed that
certain nurses in the Emergency Department lacked triage skills
and were being insubordinate. On or around December 3, 2012,
Dr. Mitchell was reassigned as Director of the Emergency
Department to a position as Director of the Post-Deployment
Clinic. Dr. Mitchells reassignment was directed by Dr. James
Felicetta, PVAHCS Chief of Medicine, who reported to Dr.
Darren Deering, PVAHCS Chief of Staff. Dr. Deering was your
direct subordinate. You knew or should have known that Dr.
Mitchells reassignment could be perceived as retaliation for her
disclosures. You should have intervened in Dr. Felicettas
decision to reassign Dr. Mitchell.
(AF, Tab 1, PAM, p. 10).
To start, although this specification refers to a disclosure made by Dr.
Mitchell on or about June 6, 2012 to ED Nurse Manager Gibson, in its merits
brief, the agency does not even mention this disclosure but instead relies on a
disclosure made by Dr. Mitchell directly to the appellant in February 2012. (AF,
Tab 1, PAM, pp. 9-11; Tab 71, Agencys Merits Brief, pp. 15-19).
That

Exhibit 6, p. 21
21
purported disclosure is nowhere referred to in the PAM, even in passing. (AF,
Tab 1, PAM, pp. 9-12). The agency cannot charge the appellant knew or should
have known that failing to stop the reassignment of Dr. Mitchell could have been
perceived as retaliation because of one set of events, those which flow from Dr.
Mitchells June 6, 2012 report of contact to Gibson, and then attempt to prove
now she should have known that because of an entirely different set of uncharged
events. See LaChance, 147 F.3d at 1372 (The principle underlying [King v.]
Nazelrod [43 F.3d 663 (Fed. Cir. 1994)] is that the agency must prove what it
charges; where the specification contains the only meaningful description of the
charge, Nazelrod supports the Boards conclusion that the agency must prove
what it has alleged in the specification) (emphasis added); Alvarado v.
Department of Air Force, 103 M.S.P.R. 1, 7 (2006) (we are bound to decide this
case according to how the charge is written, not how it could or should have been
written). Having identified no evidence in its merits or rebuttal briefs about the
June 6, 2012 disclosure and what the appellant should have known about that, this
specification is not sustained.
Finally, Specification D of Charge 1 alleges:
Between May 2011 and April 2012, PVAHCS Public Affairs
Specialist Paula Pedene cooperated with an administrative
investigation concerning PVAHCS leadership and made numerous
disclosures to PVAHCS leadership about staffing and resources
and experiencing a hostile work environment. Ms. Pedene also
made a disclosure to Veterans Integrated Service Network 18
about PVAHCS leadership failing to restore certain public affairs
functions. On or about December 10, 2012, PVAHCS Associate
Director Lance Robinson, your direct subordinate, reassigned Ms.
Pedene to the Education Service pending an investigation into an
alleged computer security breach. Numerous other PVAHCS
employees who may have committed computer security breaches
were not reassigned.
You knew or should have known that Ms. Pedene had made
disclosures to PVAHCS leadership. You knew or should have
known that Ms. Pedenes reassignment could be perceived as

Exhibit 6, p. 22
22
retaliation for her disclosures. You should have intervened in Mr.
Robinson's decision to reassign Ms. Pedene.
(AF, Tab 1, PAM, p. 10).
In support of this specification, the agency begins with a May 10, 2011
memorandum from Pedene to the Medical Center Director in Phoenix at the time,
and the Associate Director, as well.
Memorandum, Subtab 21, pp. 25-28).
(AF, Tab 9, Pedene Public Affairs

Its subject was Public Affairs
Recommendations. (Id.) In it, Pedene requested realignment of the reporting

structure in Phoenix so that the Public Affairs Officer reported directly to the
Medical Center Director. (Id.) She also requests restoration of $50,000.00 for
production of an agency television show, To Your Health, restoration of
contractual support for PR writers and replacement of a position in Public
Affairs with an Audio Visual Production Specialist. (Id.)
Pedene posits that
[t]he funding for the PR writer function will assist with news releases, fact
sheets, media advisories and the like which have all declined without the
contractual support.
(Id.)
She also asks that the Public Affairs Officer be
empowered to Take action to raise the publics awareness of VHAs willingness

to accept gifts and the productive use of GPF gifts; and, Communicate VHA gift
needs to potential donors for Parade and Community Outreach in accordance
with VHA Directive 4721. (Id.)
She asserts that this authority would allow
the PAO to make the community aware of parade and community outreach needs
that extend beyond the facilities current budget allocations. (Id.) Pedene also
requested restoration of support of the VA Veterans Day Parade Committee and
activities surrounding this VA Regional Event[.] (Id.) Pedene then lists several
other suggested changes and empowerments for the public affairs function. (Id.)
She concludes the substance of the memorandum by noting [e]very item listed in
this memo had been in place and has been systematically removed during the past
two years[,] and that, Public Relations should be granted at least 1/10 th of 1%

Exhibit 6, p. 23
23
of the company's overall operating budget for a standard program. For us that
means $460,000. The current PR budget is $258,000 including salaries. (Id.)
The agency, however, has mischaracterized this memorandum. The agency
states On May 10, 2011, Paula Pedene, the Public Affairs Officer for PVAHCS,
submitted a memorandum to Appellant through PVAHCSs Associate Director
Lance Robinson requesting, among other things, a restructuring of PVACHSs
public affairs strategy and additional funding. (AF, Tab 71, Agencys Merits
Brief, p. 19). By the agencys own admission, the appellant did not start her
employment at the PVAHCS until February 26, 2012. (AF, Tab 71, Agencys
Merits Brief, p. 4) (Appellant was employed as the Director of the Phoenix VA
Health Care System (PVAHCS) from February 26, 2012 to November 24, 2014
citing Tab 18, SF-50s, pp. 23 & 33). The agency does not explain why this
memorandum would have been sent to the appellant approximately nine months
before she began to work there, and I find it more likely than not that it was not.
Moreover, although it is not completely clear when Robinsons tenure as an
Assistant Director in Phoenix began, for reasons discussed below I find it more
likely than not it was after this May 10, 2011 memorandum was written.
Before writing this memorandum, on May 5, 2011, Pedene was interviewed
by members of an agency Administrative Investigation Board looking in to
matters involving fee basis, sexual harassment, and hostile work environment at
the VA Medical Center in Phoenix, Arizona. (AF, Tab 11, Pedene Interview
Transcript, Subtab 26, p. 5). She had previously provided some documentation to
this board. (Id.) Pedenes interview centered on actions taken over the previous
two years by the director who preceded the appellant in Phoenix, Perez, and an
Assistant Director, a Dr. Bacorn, who directly supervised Pedene.
(Id., pp. 3-
60).
Next, the agency points to a memorandum dated July 8, 2011, from Pedene
to the VISN 18 Director, to be routed through the Phoenix Medical Center
Director.
The agency avers, On July 8, 2011, in a message sent through

Exhibit 6, p. 24
24
Appellant to the Network Director for Veterans Integrated Service Network
(VISN) 18, Ms. Pedene noted that she was facing a hostile work environment
because of PVAHCSs Associate Director Robinson, a direct subordinate of
Appellant, when the Associate Director tried to divest Ms. Pedene of the
responsibility of coordinating the annual Veterans Day Parade.
(AF, Tab 71,
Agencys Merits Brief, p. 19). This, as with the May 10, 2011 memorandum, is
simply a misrepresentation of the facts of this case. 6 The appellant did not begin
her tenure as the Medical Center Director in Phoenix until February 26, 2012. As
such, I find the memorandum was not routed through the appellant as she had not
yet begun her employment in Phoenix.
mentions Robinson at all.
Furthermore, the memorandum never
(AF, Tab 9, Pedene Hostile Environment
Memorandum, Subtab 20, pp. 22-24). It alleges that Dr. Bacorn was perpetuating
a hostile environment. The very first sentence reads, I am writing to inform you
that it appears as if the hostile work environment, initiated under Gabriel Perez,
is still present at the PVAHCS, under the auspices of the actions being conducted
by the Associate Director (AD) Dr. Bacorn. (Id., p. 22).
The agency has also mischaracterized another memorandum from Pedene.
It relies on a November 25, 2011 memorandum addressed to VISN 18 Network
Director titled Request for action regarding restoration request. (AF, Tab 9,
Subtab 22, Pedene Action Request Memorandum, p. 30). The agency states As
of November 25, 2011, Ms. Pedene continued to face a hostile work environment.
This time, she by-passed Appellant and went directly to Appellants supervisor
Susan Bowers with her complaints. (AF, Tab 71, Agencys Merits Brief, p. 19).
It is unclear which of the agency attorneys who have entered their appearance in this
case actually authored these passages. Pedenes memoranda are addressed to position
titles, not actual persons, and the agency may have lost sight of who was where when.
While they do not help defend against the appellants argument that the agency is
engaged in a win-at-all-costs railroading campaign, I assume these misrepresentations
were inadvertent.

Exhibit 6, p. 25
25
Again, however, at the time of this memorandum, if the appellant had not yet
arrived in Phoenix, Pedene could not have been bypassing her. 7
Another piece of documentary evidence the agency stands on in support of
this specification, although not a few weeks after Ms. Pedenes last
memorandum to the VISN Director as the agency advances, does at least
postdate the start of the appellants employment in Phoenix. On December 10,
2012, Robinson issued a memorandum to Pedene which advised her she was
being temporarily administratively reassigned for an initial period of thirty (30)
days because a complaint was filed against [her] for possible misconduct. The
misconduct alleged is of a very serious nature and during the investigation [sic]
would be inappropriate for [her] to retain access to [her] current confidential files
or [sic] in contact with individuals who may be later identified as negatively
affected by [her] actions.
(AF, Tab 9, Subtab 23, Robinson Reassignment
Memorandum, p. 33.)
The allegations against Pedene were that she had committed a computer
security violation when Ms. Pedene (who is legally blind) allowed her husband,
an official VA volunteer, to access her computer to transfer pictures he took of
the Phoenix VA (sic) Parade, into a PowerPoint presentation.
(AF, Tab 11,
Subtab 27, Pedene ROI, p. 66). After Pedene had apparently filed a
whistleblowers complaint with the Office of Special Counsel, the agency
conducted an internal investigation in to Pedenes activities and the appellants
and Robinsons responses to them. (AF, Tab 11, Subtab 27, Pedene ROI, p. 64.)
The report generated from that investigation concluded, in pertinent parts, as
follows:
For purposes of this review, it is accepted that Ms. Pedenes
actions as identified herein constitute protected whistleblowing
7
In this memorandum, Pedene takes issue with certain actions and inactions of Interim
Director, Dr. Jamie Robbins, and an unidentified Associate Director and Asst.
Director. (IAF, Tab 9, Subtab 22, Pedene Action Request Memorandum, pp.30-31).

Exhibit 6, p. 26
26
activity. Even though the initial protected disclosure occurred in
May 2011 prior to the arrival of Ms. Helman and Mr. Robinson,
both of them were aware of Ms. Pedenes prior whistleblower
activity and her continued efforts to restore staffing and budget
reductions she attributed to that activity. [***]
(Id., p. 81).
The allegation that Ms. Pedenes whistleblowing activity was a
contributing factor to her detail in Education Service is sustained.
Numerous employees alleged to have been involved in similar
computer or privacy violations were not detailed to other
positions. Additionally, neither the original detail nor subsequent
extensions were properly documented in accordance with VA
policy. [***] Although Ms. Pedene clearly violated VA IT
security policy and corrective action was warranted, as confirmed
by OGC and VACO HR, her violations do not establish clear and
convincing evidence that Ms. Pedene would have been treated in
the same manner in the absence of whistleblowing. Lastly, it
must be noted that Ms. Pedene inadvertently committed an earlier
privacy violation in January 2012 for which she received no
adverse personnel action. This "no action" arguably militates
against a retaliatory motive, but does not sufficiently overcome
the obvious disparate treatment Ms. Pedene received following
the computer incident in December 2012.
(Id., p. 82).
The appellants attack on the agencys case for this specification is both
legal and factual. The appellant argues first that failing to stop a reassignment
which could be perceived as retaliation, as the specification states, is not
actionable misconduct because the standard is too amorphous, in that, any action
could look objectionable to someone, somewhere, at some time, the standard
departs from related precedent, the agency has not previously held managers to
such a standard and, if the appellant had stopped the reassignment because it
could be perceived as retaliation for whistleblowing, she would have directly run
afoul of the Whistleblower Protection Act because she would have failed to take a
personnel action because of a protected disclosure. (AF, Tab 70, Appellants
Merits Brief, pp. 44-46).

Exhibit 6, p. 27
27
While it has some surface appeal, the short answer to the first objection is
that I am not in the business of running the agency or deciding what standards of
conduct it ought to set for its senior managers in managing its institutions; the
agency is free to bind their hands with Gordian knots if it chooses. Cf. American
Federation of Government Employees, Local 2017 v. Brown, 680 F.2d 722, 726
(11th Cir. 1982); Jackson v. Department of Veterans Affairs, 97 M.S.P.R. 13, 1819 (2004). The particular language of the statute at issue, Section 713(a)(1) of
title 38, authorizes a removal if the Secretary determines the performance or
misconduct of the individual warrants it. This section gives very broad authority
to the Secretary of Veterans Affairs in determining what constitutes misconduct
for an employee in the Senior Executive Service at that agency.
As to departing from precedent, in the cases the appellant cites, the
employees were charged by the Office of Special Counsel with actually violating
the Whistleblower Protection Act (WPA) or another provision of law. Costello v.
Merit Systems Protection Bd., 182 F.3d 1372, 1375 (Fed. Cir. 1999) (the Office
of Special Counsel filed complaints with the Board against Costello and Strehle,
seeking disciplinary actions (under 5 U.S.C. 1215) against them for alleged
violations of the Whistleblower Protection Act); Special Counsel ex rel. Perfetto
v. Dep't of Navy, 85 M.S.P.R. 454, 458-59 (2000) (In a stay request, OSC need
not prove, as part of a prima facie case, that the protected activity was a
significant factor in the agencys termination decision. Rather, that is part of its
burden of proof on the merits); Special Counsel v. Nielson, 71 M.S.P.R. 161,
177 (1996) (The respondent was charged with violating 5 U.S.C.
2302(b)(9)(A) and (C)). I am aware of no precedent which would require the
agency to charge the appellant with actually violating a law, even if it believed
she had done so, and the appellant does not cite any.
An agency may draft
misconduct charges in the manner it thinks best. Having drafted a charge which
states the appellant knew or should have known that Ms. Pedenes reassignment
could be perceived as retaliation for her disclosures[,] the agency does not need

Exhibit 6, p. 28
28
to prove the appellant actually violated the provisions of the WPA, only that
circumstances were such that a perception of retaliation could arise. That does
require reference to the WPAs standards, but not actual proof of violation.
The issue of not having previously charged a senior manager with such an
offense speaks to the propriety of the penalty, not the viability of the charge
itself.
See Lewis v. Department of Veterans Affairs, 113 M.S.P.R. 657, 664
(2010) (lack of notice of a change in policy is a factor in penalty determinations).

Finally, I conclude the appellant misconstrues the WPA.
While her
interpretation may follow from a literal reading of the act, interpreting it in the
manner she suggests would lead to absurd results, and I decline to do so. See
Wassenaar v. Office of Personnel Management, 21 F.3d 1090, 1092 (Fed. Cir.
1994). The act is meant to protect whistleblowers from harm. See Schmittling v.
Department of Army, 92 M.S.P.R. 572, 579 (2002) (the purpose language of
the WPA suggests that Congress sought to broadly protect whistleblowers from
adverse consequences as a result of prohibited personnel practices, whether
those adverse consequences result from personnel actions that are taken or
personnel actions that are not taken). In the context of this scenario, leaving
Pedene in her position would not have been an infliction of harm on her. The
WPA does not shield the appellant as she argues.
With her factual challenge, the appellant contends the report of
investigation is unreliable and points out that she, Robinson and OIG Special
Agent Richard Cady were not interviewed for the report. (AF, Tab 11, Subtab 27,
Pedene ROI, p. 66) (listing persons interviewed). Moreover, none of the persons
interviewed, save Pedene, an interested party, were under oath and, the agency
has proffered no explanation for why that is. (Id.) See Borninkhof v. Department
of Justice, 5 M.S.P.R. 77, 87 (1981) (in weighing the probative value of hearsay,
considerations include whether the out of court statements were made under oath,
and if not, why not, and whether they were made by persons disinterested in the
events). Additionally, the witness statements and exhibits the report refers to

Exhibit 6, p. 29
29
were not appended to the report, (AF, Tab 11, Subtab 27, Pedene ROI, p. 64-84),
and I cannot look past even the first level of hearsay to evaluate that same
evidence now. These proceedings are de novo, the agency must prove its case by
preponderant evidence and I cannot simply assume the accuracy of the report in
light of the evidence the appellant has adduced about it.
The supplemental declarations from Mary Monet and Laurie Butler the
agency introduced in support of this charge do not help and actually undermine
its position somewhat. The reports generated by Monet are not actually appended
to her declaration, although there is an electronic place holder for them. (AF,
Tab 71, Agencys Merits Brief, Monet Decl., pp. 62-63). In Butlers declaration
she avers she directed her staff to search a PVAHCS database which tracks all
disciplinary and adverse actions taken there.
(AF, Tab 71, Agencys Merits
Brief, Butler Decl., p. 60). The search included the terms private, privacy,
HIPAA, violation, access, disclosure, disclose, disclosed, reassign, reassignment,
and reassigned. (Id.) That search resulted in 24 cases from January 2012 to
August 22, 2014 where an employee was charged with a privacy access and/or
disclosure violation. This involves the case of Dr. Katherine Mitchell. (Id.).
Butler also directed her staff to pull all available disciplinary files (paper copy)
for the 24 actions that were identified. (Id. p. 61). They could locate only 21 of
the 23 files. 8 (Id.). She further avers In none of the 21 instances of privacy
access/disclosure violations that I reviewed, other than in the case of Dr.
Katherine Mitchell, was the offending employee placed on administrative absence
or reassigned. (Id.). If the agency really did mean these declarations support its
case regarding the reassignment of Pedene, records relating to her reassignment
were not there, which casts some doubt on the accuracy of those records. The
agency apparently relied on those records, or some such records, for its finding
I take the change of 24 to 23 to be a typographical error.

Exhibit 6, p. 30
30
that [n]umerous employees alleged to have been involved in similar computer or
privacy violations were not detailed to other positions.
The appellant introduced an affidavit and declaration from Robinson
wherein he avers Cady asked him to temporarily reassign Pedene while the OIG
investigated allegations of financial impropriety by her. 9 (AF, Tab 70, Ex. 4,
Robinson Aff., p. 86; Ex. 4a, Robinson Decl., p. 89). Attempting to blunt this
last point, the agency introduced a declaration from Cady where he states, In
January 2013, my office looked into an investigative referral regarding Ms. Paula
Pedene at the Phoenix VA Health Care System (PVAHCS). I never directed
PVAHCS Associate Director Lance Robinson to reassign Ms. Pedene to another
position. (AF, Tab 71, Agencys Merits Brief, Cady Decl., p. 42). I find it more
likely than not both statements are true. 10
Cady did not direct Robinson to
reassign Pedene, because as an investigating agent he likely had no authority to

direct the taking of a personnel action, and he did request that Robinson reassign
her so that, if there actually was wrongdoing to be uncovered, Pedene would not
be in a position to cover her tracks as easily or otherwise interfere with the
investigation.
To make out a prima facie case of whistleblower retaliation before the
Board, one must allege: (1) he or she engaged in whistleblowing activity by
making a protected disclosure, and (2) the disclosure was a contributing factor in
the agencys decision to take or fail to take a personnel action.
Ormond v.
Department of Justice, 118 M.S.P.R. 337, 339 (2012) (citing Yunus v. Department
The report sets out the appellants involvement in the misuse of funds allegation and
why her actions in that regard appeared retaliatory, but the agency did not charge her
with anything related to that, only the reassignment by Robinson.
10
The agency argues that Appellant has claimed that OIG Agent Cady advised that
Robinson reassign Pedene. Agent Cady specifically denies this. (Decl. of Agent Cady,
3.) (IAF, Tab 71, Agencys Merits Brief, p. 20 n.11). Again, that is simply not what
Cady says in the declaration.

Exhibit 6, p. 31
31
of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001)).
A protected
disclosure is a disclosure that a person reasonably believes evidences a violation

of any law, rule, or regulation, gross mismanagement, a gross waste of funds, an
abuse of authority, or a substantial and specific danger to public health or safety.
5 U.S.C. 2302(b)(8)(A).
I conclude that Pedenes statements to the
Administrative Investigation Board or the appellant herself could be construed as

disclosing an abuse of authority. However, if an agency can prove, by clear and
convincing evidence it would have taken the same actions in the absence of the
protected disclosure, no unlawful retaliation has occurred.
See Whitmore v.
Department of Labor, 680 F.3d 1353, 1367 (Fed. Cir. 2012).

Putting aside for now the Miller issue discussed with Specification A,
supra, in considering all the evidence identified by the parties for this
specification, I conclude the agency has not demonstrated, by preponderant
evidence, the appellant knew or should have known that Ms. Pedenes
reassignment could be perceived as retaliation for her disclosures.
The evidence the agency introduced is marginally probative at best. The
report generated from the internal investigation does not pass muster under
Borninkhof and cannot carry the day for the agency by itself. Even if it did carry
significant probative value, one of the things it points out is that Pedene was
observed violating agency computer security policies, apparently for a second
time. See Russell v. Department of Justice, 76 M.S.P.R. 317, 325 (1997) (An
employee is not completely shielded from his misconduct by anti-discrimination
laws or the WPA. Rather, those laws shield an employee only to the extent the
record supports a finding that he would not have been disciplined except for his
status as a whistleblower or a member of a protected class). The OIGs
involvement in Pedenes reassignment is not mentioned in the report the agency
heavily relies on. Moreover, something not addressed in the report is that before
Robinson reassigned Pedene, he consulted with the PVAHCS Human Resources
Officer, Maria Schloendorn, who counseled that Pedene should be reassigned

Exhibit 6, p. 32
32
while the Office of Inspector General conducted its investigation. (AF, Tab 70,
Ex. 6, Agencys Response to Appellants Request for Admission 70). There is no
contention by the agency that Cady or Schloendorn had any reason to know about
Pedenes disclosures or that Robinson was prone to ignoring Schloendorns
advice. When the agencys evidence is weighed against the facts that an OIG
agent specifically requested Ms. Pedenes reassignment, and that Robbins asked
his Human Resources Officer what he should do about that request and she
advised he should reassign, I conclude Robinson would have taken the same
action, Pedenes disclosures notwithstanding. The agency has not met its burden
on this specification, and the charge as a whole is not sustained.
With its second charge, Charge 2 is labeled Conduct Unbecoming a Senior
Executive, and has two specifications. (Tab 1, PAM, p. 10.) This is also a
generic charge with no specific elements of proof. It is established by proving
that the appellant committed the acts alleged in support of the broad label. See
LaChance, 147 F.3d at 1371; Canada v. Department of Homeland Security, 113
M.S.P.R. 509, 513 (2010).
Charge 2, Specification A reads as follows:
On September 20, 2013, you placed Dr. Mitchell on
administrative absence pending investigation into an allegation
that she violated patient privacy by providing Senator McCain
with a list of patients who had committed suicide. Between
January 2, 2012 and August 22, 2014, PVAHCS investigated
numerous data breaches. There is no evidence any of the subjects
of these investigations were placed on administrative absence.
You knew or should have known that Dr. Mitchell made a
disclosure to Senator McCain. You knew or should have known
that placing Dr. Mitchell on administrative absence could be
perceived as retaliation for her disclosures.
(AF, Tab 1, PAM, p. 10.)
In its merits brief, the agency argues that the appellant either engaged in
retaliation or in conduct that could be perceived as retaliation. (AF, Tab 71,
Agency Merits Brief, p. 22). I will not address whether the conduct alleged in

Exhibit 6, p. 33
33
this specification constituted actual retaliation because the agency charged the
appellant only with engaging in conduct that she knew or should have known
could be perceived as retaliation. (AF, Tab 1, PAM, p. 10). It is immaterial
whether the appellants actions were actually retaliatory because the agency did
not charge her with actual retaliation. See LaChance, 147 F.3d at 1372. Rather,
it charged her with creating the possible perception of retaliation. The agency
cannot rewrite the specification at this stage of the proceedings to include
allegations that it could have included in the charging document but did not. See
Minor, 115 M.S.P.R. at 311.
As for the proof of what was actually charged, I find that the agency has
met its burden, and the underlying facts do not appear to be in real dispute. The
agency submitted a copy of the documents that Dr. Mitchell sent to Senator
McCains office, which show that, on August 20, 2013, Dr. Mitchell disclosed the
first names and last initials of four Phoenix VAHCS patients who had committed
suicide. (AF, Tab 9, pp. 18-19). The record also shows that, on September 20,
2013, the appellant executed a memorandum notifying Dr. Mitchell that she
would be placed on administrative leave effective immediately. (AF, Tab 7, p.
64). A December 19, 2013 memorandum of counseling signed by Dr. Mitchells
immediate supervisor confirms that her disclosure to Senator McCain was the
reason for her placement on administrative leave. (Id. p. 66). The appellants
and Dr. Mitchells declarations corroborate these events and the appellants
personal awareness of them. (AF, Tab 70, Appellants Decl., pp. 71-73, Tab 71,
Mitchell Decl., p. 65).
I also find that the agency has proven that the appellant knew or should
have known that placing Dr. Mitchell on administrative absence could be
(AF, Tab 1, PAM, p. 10).
Dr.
Mitchells disclosures appear calculated to address what she reasonably believed

was a substantial and specific danger to public health and safety, i.e., the
inadequacy of the Phoenix VAHCSs suicide prevention efforts, which in Dr.

Exhibit 6, p. 34
34
Mitchells opinion, contributed to the deaths of the patients named in the
disclosure. (AF, Tab 9, pp. 18-19). See 5 U.S.C. 2302(b)(8)(A); Parikh v.
Department of Veterans Affairs, 116 M.S.P.R. 197, 206-207 (2011) (the appellant
made
non-frivolous
allegation
that
substandard
care
at
Veterans
Administration hospital presented a substantial and specific danger to public

health and safety because such substandard care could lead to patient deaths). In
addition, the appellant herself admits that Dr. Mitchells disclosures were the
reason that she placed Dr. Mitchell on administrative leave, thus establishing a
connection between Dr. Mitchells disclosures and the administrative leave. (AF,
Tab 70, Appellants Decl. pp. 71-73). I find that these facts would be sufficient
for Dr. Mitchell to establish a prima facie case under the WPA, as amended, with
the appellant as the retaliating official. See Yunus, 242 F.3d at 1371. Because
Dr. Mitchells disclosure is the very reason for placing her on administrative
leave, there is no way establish the same action would have been taken in the
absence of the disclosure. Thus, I find that the agency has established that the
appellants act of placing Dr. Mitchell on administrative leave could be perceived
as retaliatory.
Although the appellant does not dispute the facts, she argues that Charge 2,
Specification A fails to make out a case of actionable misconduct. (AF, Tab 70,
Appellants Merits Brief, pp. 48-50, Tab 72, Appellants Reply Brief, pp. 17-19).
Specifically, she argues that she relied on the advice of her immediate supervisor,
the Phoenix VA Chief of Human Resources, and two different agency attorneys in
determining that Dr. Mitchell should be placed on paid administrative leave
pending an investigation into whether the disclosure violated patient privacy.
(AF, Tab 70, Appellants Merits Brief, pp. 48-50, Appellants Decl., p. 72; Tab
72, Appellants Reply Brief, pp. 17-19). Again, as discussed above, the agency
may set its standards of conduct for its senior managers in the manner it thinks
best. She further argues that no one raised concerns of retaliation at the time, and
that no other employee had been placed on administrative leave for a suspected

Exhibit 6, p. 35
35
privacy violation during her tenure because none of those other employees had
released information outside the agency. (AF, Tab 70, Appellants Merits Brief,
p. 50; Appellants Decl., pp. 71-72; Tab 72, Appellants Reply Brief, pp. 49-50).
This evidence and argument appears to be geared toward showing that the
appellants actions were not, in fact, retaliatory, which as explained above is
beside the point. The agency did not charge the appellant with actual retaliation,
but with taking actions that could be perceived as retaliatory for [Dr. Mitchells]
disclosures. (AF, Tab 1, PAM, p. 10.) The agency has carried it burden on this
issue.
The appellants argument is akin to an argument that an appellant might
make in an appeal under 5 U.S.C. Chapter 75 that a proven charge bears no nexus
to the efficiency of the service. See 5 U.S.C. 7513 (an agency may take an
action covered by this subchapter against an employee only for such cause as will
promote the efficiency of the service); see, e.g., Jordan v. Department of the Air
Force, 36 M.S.P.R. 409, 411 (1988) (although the agency proved its charge of
selling black market motor vehicles off duty, the Board reversed the removal
because the agency failed to establish a nexus between the conduct and the
efficiency of the service). However, this appeal does not arise under 5 U.S.C.
chapter 75; it arises under 38 U.S.C. 713. Thus, a question is raised: Is there a
nexus requirement for disciplinary actions under that section?
The statute provides, in pertinent part, that [t]he Secretary may remove an
individual employed in a senior executive position at the Department of Veterans
Affairs from the senior executive position if the Secretary determines the
performance or misconduct of the individual warrants such removal. 38 U.S.C.
713(a)(1).
I find that the plain language of the statute does not contain a
specific nexus requirement as is found in 5 U.S.C. 7513(a), but it does predicate

the Secretarys removal authority on the existence of actual misconduct.
Cf.
Social Security Administration v. Long, 113 M.S.P.R. 190, 46 (2010) (the good

Exhibit 6, p. 36
36
cause standard to remove and administrative judge under 5 U.S.C. 7521 does
not contain a separate nexus requirement).
As for whether creating the possible perception of reprisal constitutes
actual misconduct, if this were an appeal under Chapter 75, I would be inclined to
agree with the appellant that it does not. Any personnel action taken against an
employee who arguably made a protected disclosure, by a manager who arguably
knew about the disclosure, raises an inference of retaliation.
See Mudd v.
Department of Veterans Affairs, 120 M.S.P.R. 365, 370-71 (2013). Nevertheless,

employees who have previously blown the whistle are not immune from
performance and conduct deficiencies; nor are they immune from budgetary and
organizational considerations that affect the agency at large, and agency
managers may be required to take action against such employees for legitimate,
nonretaliatory reasons.
See 5 U.S.C. 1221(e)(2); Morgan v. Department of
Energy, 424 F.3d 1271, 1273 (Fed. Cir. 2005) (the Board cannot not order
corrective action in a whistleblower reprisal case if the agency can prove, by
clear and convincing evidence, that it would have taken the personnel action at
issue notwithstanding the protected disclosure); Moeller v. Department of
Veterans Affairs, 62 M.S.P.R. 361, 366-67 (1994) (whistleblowing does not
shield an employee from discipline which is not motivated by retaliation for the
protected disclosure).
Thus, in the ordinary case, the possible perception of
whistleblower reprisal, in the absence of something more, would likely not

constitute misconduct. However, as discussed above, the particular language of
the statute gives the Secretary broad discretion in determining what constitutes
misconduct for the agencys SES.
Charge 2, Specification A is therefore
sustained. 11
11
Notwithstanding the above, I find that it is proper for me to consider the tenuous
nature of this misconduct, such as it is, in deciding whether the appellant has rebutted
the reasonableness of the penalty imposed on her. As explained below, this charge,
although proven, merits little weight in that regard.

Exhibit 6, p. 37
37
Specification B of this charge alleges:
Charge 2, Specification B reads as follows:
You accepted the following gifts from Dennis "Max" Lewis, Vice
President. Jefferson Consulting Group, who you knew or should
have known was a consultant to a healthcare provider that was
seeking to conduct business with one or more PVAHCS
Community-Based Outpatient Clinics (CBOCs) under your
management:
a. Airline tickets at a cost of approximately $465.07 roundtrip
from Phoenix, Arizona to Vancouver, British Columbia for travel
in May 2012;
b. Airline tickets at a cost of approximately $355.60 roundtrip
from Phoenix, Arizona to Portland, Oregon from [sic] travel in
October 2012;
c. Admission price of approximately $121.80 for a Pink Jeep
Tour in November 2012;
d. Entry fee of approximately $65 paid on November 27, 2012,
for the Runners Den/Fiesta Bowl Half marathon and 5K on
December 2, 2012;
e. Airline tickets at a cost of approximately $317.60 roundtrip
from Phoenix, Arizona to El Paso, Texas for travel in March
2013;
f. Entry fee of approximately $70.25 paid on April 29, 2013 for
the Mississippi [Blues] Marathon;
g. Airline tickets at a cost of approximately $1,015.60 roundtrip
from Phoenix, Arizona to Eureka, California for travel in May
2013;
h. Airline tickets at a cost of approximately $389.80 roundtrip
from Phoenix, Arizona to Portland, Oregon for travel in June
2013;
i. Five tickets and parking for approximately $729.50 paid on
August 24, 2013 to The Mrs. Carter Show World Tour Starring
Beyonce on December 7, 2013;
j. Entry fee of approximately $282.98 paid on or about December
11, 2013 for the 2014 P.F. Changs Rock 'n' Roll Arizona
Marathon & Half Marathon on December 2, 2013;
k. A trip to Disneyland which cost in excess of $11,000; and

Exhibit 6, p. 38
38
l. An entry fee of approximately $105 for you to participate in
the Napa Valley Marathon in 2015.
You knew or should have known that the acceptance of these gifts
creates the appearance of a conflict of interest.
(AF, Tab 1, PAM pp. 10-11). For this specification, the agency must prove: (1)
whether the appellant accepted these gifts as alleged, and if so (2) whether she
knew or should have known that such acceptance created the appearance of a
conflict of interest.
For the reasons discussed below in connection with Charge 3, I find that
the agency established that the appellant accepted the following gifts from Lewis:
Item a., roundtrip airline tickets at a cost of approximately $465.07 between
Phoenix and Vancouver for travel in May of 2012; item b., roundtrip airline
tickets between Phoenix and Portland, Oregon at a cost of approximately $355.60
for travel in October 2012; item e., roundtrip airline tickets between Phoenix,
Arizona and El Paso, Texas at a cost of approximately $317.60 for travel in
March, 2013; item h., roundtrip airline tickets from Phoenix, Arizona to Portland,
Oregon at a cost of approximately 389.80 for travel in May, 2013; item i., five
tickets and parking for approximately $729.50 paid on August 24, 2013 to the
Mrs. Carter World Show Starring Beyonc on December 7, 2013; and item j., an
entry fee of approximately $282.98 paid on or about December 11, 2013 for the
2014 P.F. Changs Rock n Roll Arizona Marathon and Half Marathon on
December 2, 2013.
Also for the reasons discussed below in connection with
Charge 3, I find that the agency failed to establish that the appellant accepted
item g., roundtrip airline tickets between Phoenix, Arizona and Eureka, California
at a cost of approximately $1,015.60 for travel in May, 2013.
Regarding item c., admission price of approximately $121.80 for a Pink
Jeep Tour in November, 2012, I find that the agency has failed to show that the
appellant accepted this as a gift from Lewis.
The record contains a receipt
showing that, on November 9, 2012, Lewis booked a Pink Jeep tour for
November 14, 2012 at the cost of $243.59. (AF, Tab 11, pp. 304-05). The record

Exhibit 6, p. 39
39
also contains a liability waiver and a trip manifest that appear to be related to this
booking. (Id. pp. 305-06). The appellants name, however, appears nowhere in
any of these documents, and the agency has not explained how it tied this item to
the appellant or concluded that this was a gift for her. In fact, this alleged gift is
mentioned nowhere in the agencys merits brief or its rebuttal brief. In short, the
agency has not identified any evidence that the appellant accepted item c. from
Lewis as alleged in the specification.
I likewise find that the agency failed to prove that the appellant accepted as
a gift from Lewis item d., an entry fee of approximately $65 paid on November
27, 2012 for the Runners Den/Fiesta Bowl Half Marathon and 5K on December 2,
2012. This allegation is not mentioned in the agencys merits brief or its rebuttal
brief. Nor has my review of the record uncovered any documentation related to
this allegation which would support it.
Regarding item f., an entry fee of approximately $70.25 paid on April 29,
2013 for the Mississippi Blues Marathon, I find that the agency has proven that
the appellant accepted this as a gift from Lewis. Specifically, the record contains
an April 29, 2013 registration confirmation for that marathon, indicating that the
appellant was the registrant and that Lewis paid the $70.25 entry fee (AF, Tab 11,
p. 329). Cadys declaration confirms that the IG uncovered this document during
its investigation. (AF, Tab 71, Cady Decl. p. 44).
Regarding item k., a trip to Disneyland costing in excess of $11,000, I
find that the agency has proven that the appellant accepted this gift from Lewis as
well. The record contains a January 13, 2014 email from Lewis to the appellant
stating Enjoy. (AF, Tab 11, p. 238). Attached to the email is a reservation
confirmation for the appellant and what appear to be six of her family members
for an 8-night stay at Disneyland, plus several upgrades and amenities. (Id., p.
239). The total amount of the reservation is blocked out on the attachment, but
the record contains an unredacted copy of it as well, showing the total amount to
be $11,205.28, and that payment in full had been made on January 13, 2014. (Id.,

Exhibit 6, p. 40
40
p. 243). The record also contains a document titled Information on Payment,
showing that Lewis engaged in a credit card transaction of exactly $11,205.28 on
that date. (Id., p. 154). Finally, the record contains a printout of a subpoenaed
Walt Disney computer record stating that a Disney employee spoke w/Dennis
Lewis who made this resv and paid for it . . . This is a secret gift to this family
and only Sharon knows the source but even she does not know the cost. (Id., p.
184). These facts are confirmed by Cadys declaration about the investigation.
(AF, Tab 71, Cady Decl., p. 46).
Regarding item l, an entry fee of approximately $105 for the appellant to
participate in the Napa Valley Marathon in 2015, I find that the agency has
proven that the appellant accepted this as a gift from Mr. Lewis. Specifically, the
record contains a March 28, 2014 registration confirmation for that marathon,
indicating that the appellant was the registrant and that Mr. Lewis paid the
$105.00 entry fee. (AF, Tab 11. p. 246). Cadys declaration again confirms that
the OIG uncovered this document during its investigation. (AF, Tab 71, Cady
Decl., p. 46).
Having proven that the appellant accepted nine of the twelve alleged gifts
from Lewis, the agency must now prove, as it charged, that the appellant knew or
should have known that the acceptance of those gifts created the appearance of a
conflict of interest. See LaChance, 147 F.3d at 1371. For the following reasons, I
find that the agency has met its burden of proof.
First, I find that the appellant knew that Lewis was a Vice President at
Jefferson Consulting at the time that she accepted these gifts from him, and that
she knew that Jefferson Consulting was doing work for companies doing business
or seeking to do business directly with the agency.
The record contains an
August 7, 2013 email from the President of Jefferson Consulting Group to the
appellant introducing a Humana employee for purposes of discussing Humanas
experience and ideas to provide a near term alternative solution to VHAs need
for larger, community-based clinics with expanded capabilities, and offering to

Exhibit 6, p. 41
41
participate in the discussion as needed. (AF, Tab 12, p. 266). The record also
contains two business-related email exchanges between Lewis and the appellant,
with Mr. Lewis using his business address. In the first email exchange, dated
August 28, 2012, Lewis forwarded the appellant information pertaining to the
current contractor at a VISN 18 community-based outreach clinic and the
challenges facing the clinic and its workload. (Id., pp. 273-74). In the second
email exchange, dated August 21, 2013, Lewis and the appellant discussed
agency practices in meeting with potential vendors. (Id., pp. 277-78). Based on
the foregoing, I find it more likely than not that the appellant was aware of
Lewiss position with Jefferson consulting, and that Jefferson Consulting was
involved in helping contractors to secure business with the agency.
The
appellant, at least occasionally, had business-related discussions with Lewis, and

the appellant had personally worked with Jefferson Consulting in discussions
with potential contractors. I find it difficult to believe that she accepted over
$13,000 in gifts from Lewis over a two year period, as described above, without
knowing what he did for a living.
I also find that this acceptance of gifts from him created the appearance of
a conflict of interest. Although Jefferson Consulting does not appear to have
been doing business, or attempting to do business, directly with the agency, its
client companies were. In fact, it is Jefferson Consultings very business is to
assist its clients in securing favorable government contracts, particularly with the
Department of Veterans Affairs. (AF, Tab 12, pp. 279-80). Furthermore, I find,
based on documentary evidence pertaining to the appellants involvement in
contract negotiations and her approval of a contract request, that her official
duties as Director of the Phoenix VAHCS placed her at the opposite end of the
negotiating table from Jefferson Consulting Group and its clients. (AF, Tab 11
pp. 248-51, 260-62).
I therefore find that the agency has proven that the
appellants interest in accepting the gifts from Lewis reasonably create[s] an

appearance of having an effect on her interests or duties in her role as Director

Exhibit 6, p. 42
42
of the Phoenix VAHCS. See Lane v. Department of the Army, 19 M.S.P.R. 161,
162-63 (1984). Charge 2, Specification B is sustained.
The third charge against the appellant was Failure to Report Gifts, which
included two specifications. (AF, Tab 1, PAM, pp. 11-12).
Once again, the
agency used generalized charging language, so the specifications supporting the

charge determine what the agency must prove. LaChance, 147 F.3d at 1371.
Specification A involved the failure to report calendar year 2012 gifts. It
states:
On or around March 22, 2013, you signed an Office of
Government Ethics Form 278, Executive Branch Personnel Public
Financial Disclosure Report in which you reported your financial
assets for calendar year 2012. Annual reporting is your obligation
as a member of the Senior Executive Service. Under Schedule B,
Part II: Gifts, Reimbursements and Travel Expenses, you marked
the box None in response to the following:
For you, your spouse and dependent children, report the source,
a brief description, and the value of: (1) gifts (such as tangible
items, transportation, lodging, food, or entertainment) received
from one source totaling more than $350, and (2) travel-related
cash reimbursements received from one source totaling more than
$350.
You failed to report the following gifts which were given to you
by Dennis Max Lewis, Vice President for Jefferson Consulting
Group during calendar year 2012:
a. International airline tickets at a cost of approximately $465.07
roundtrip from Phoenix, Arizona to Vancouver, British Columbia
for travel in or about May 2012; and
from Phoenix, Arizona to Portland, Oregon from travel in or
about October 2012.
(AF, Tab 1, PAM, p. 11).
Thus, in order to prove Specification A, the agency must prove the
following elements: (1) that for calendar year 2012 the appellant signed Ethics
Form 278 on about March 22, 2013; (2) that the appellant marked None when
asked about 2012 transportation gifts in excess of $350 from a single source; and

Exhibit 6, p. 43
43
(3) that in 2012 the appellant received from Lewis a May 2012 roundtrip airline
tickets from Phoenix to Vancouver, which cost approximately $465.07, as well as
October 2012 roundtrip airline tickets from Phoenix to Portland, which cost
approximately $355.60.
First, the agency has proven that the appellant signed the required 2012
Ethics Form 278 on about March 22, 2013. (AF, Tab 11, p. 264). As with part of
Charge 2, the primary supporting evidence is provided by the sworn declaration
of Cady, the Resident Agent in Charge of a division of the OIG. (AF, Tab 71, p.
42).
12
Cady obtained the appellants Form 278 from the agencys Office of
General Counsel (AF, Tab 71, Cady Decl., pp. 46-47).
Second, Cadys
investigation confirmed that the appellant did, indeed, check none when asked
about 2012 transportation gifts in excess of $350 from a single source. (AF, Tab
11, page 266).
Third, as explained in more detail below, and despite some
evidentiary issues, the agency has proven that Lewis gave the appellant the two
referenced 2012 roundtrip airline tickets.
With respect to the $465.07 roundtrip airline ticket between Phoenix and
Vancouver in May 2012, there are two pieces of evidence that seem probative.
The first is Lewiss April 30, 2012 email in which he forwarded the United
Airlines e-ticket directly to the appellant. (AF, Tab 11, pp. 188-191). The second
is the OIG-subpoenaed United Airlines record that confirms the e-ticket was
purchased with Lewiss credit card. (AF, Tab 11, pp. 335, 337). Both pieces of
evidence are confirmed by Cadys investigation. (AF, Tab 71, Cady Decl. pp. 4344). Accordingly, I find the agency has proven the first unreported 2012 gift in
Specification A.
12
Starting in April 2014, Cadys investigation included a review of subpoenaed records

from Southwest Airlines, United Airlines, Kaiser Permanente, and Live Nation (Ticket
Master). (IAF, Tab 71, pp. 42-43). His investigation also included a review of
numerous emails obtained from the agencys email system. (Id., p. 43).

Exhibit 6, p. 44
44
Portland in October 2012, there is an evidentiary issue, but the agency has
nevertheless managed to overcome it. The evidentiary issue involves Cadys
assertion that he reviewed an email from Lewis to the appellant indicating that on
September 15, 2012, the appellant was issued a United Airlines roundtrip e-ticket
between Phoenix and Portland for travel in October 2012. ((AF, Tab 71, Cady
Decl., pp. 44). Although he makes that assertion, Cady failed to provide any
record citation for that email. Moreover, in culling the record, I could find no
such email. Nevertheless, in paragraph 17 of Cadys declaration, (AF, Tab 71, p.
44) he also relies on an OIG-subpoenaed record from United Airlines, which
indicates that on September 14, 2012, Lewis paid for two tickets, each worth
$355.60, that were issued to the appellant and Lewis. (AF, Tab 11, pp. 340-41).
Accordingly, I find the agency has also proven the second unreported 2012 Lewis
gift in Specification A. This specification is sustained.
Turning to Specification B, which involved the appellants failure to report
calendar year 2013 gifts, the agency alleged the following:
Financial Disclosure Report. Under Schedule B, Part II: Gifts,
Reimbursements and Travel Expenses, you marked the box
None in response to the following:
$350.
You failed to report receiving in-kind payment or reimbursement
for travel expenses totaling over $770.00, including a hotel room
for one night, airfare, meals, a rental car and airport parking,
resulting from a job interview with Kaiser Permanente in October
2013.

Exhibit 6, p. 45
45
You failed to report the following gifts purchased by Dennis
Max Lewis, Vice President, Jefferson Consulting Group during
calendar year 2013:
from Phoenix, Arizona to El Paso, Texas for travel in or about
March 2013;
b. Airline tickets at a cost of approximately $1,015.60 roundtrip
from Phoenix, Arizona to Eureka, California for travel in or about
May 2013;
c. Airline tickets at a cost of approximately $389.80 roundtrip
from Phoenix, Arizona to Portland, Oregon for travel in or about
June 2013;
d. Five tickets and parking for approximately $729.50 paid on or
about August 24, 2013 to The Mrs. Carter Show World Tour
Starring Beyonc on or about December 7, 2013;and
e. Entry fee of approximately $282.98 paid on or about December
11, 2013, for the 2014 P.F. Changs Rock n Roll Arizona
Marathon & Half Marathon on or about December 2, 2013.
(AF, Tab 1, PAM, p. 12).

As before, the language of Specification B determines what the agency
must prove. LaChance, 147 F.3d at 1371. Thus, the agency must prove: (1) that
for calendar year 2013 the appellant signed Ethics Form 278 on about March 22,
2014; (2) that the appellant marked None when asked about the receipt of 2013
gifts of transportation, lodging or food, as well as the receipt of 2013 travelrelated cash reimbursements; and (3) that in 2013 the appellant received from a
single source one or more of the listed items in excess of $350.
Ethics Form 278 on about March 21, 2014. (AF, Tab 11, p. 270). As with the
prior years form, Cady obtained the Form 278 from the agencys General
Counsel. (AF, Tab 71, Cady Decl., pp. 46-47).
Second, Cadys investigation
confirmed that the appellant did, indeed, check None when asked about 2013
gifts in excess of $350 from a single source. (AF, Tab 11, page 272). Third, as
explained in more detail below, and again despite some evidentiary issues, the

Exhibit 6, p. 46
46
agency has proven that the appellant received more than $350 from Kaiser
Permanente, and more than $350 from Lewis, based on most, but not all, of the
items set out in the specification.
The agency alleged that the appellant failed to report the reimbursement of
travel expenses regarding her October 2013 Kaiser Permanente job interview,
which totaled more than $770 for airfare, hotel, meals, rental car, and airport
parking. (AF, Tab 1, page 12). In support of that allegation, Cadys Declaration
confirms the review of OIG-subpoenaed documents from Kaiser Permanente,
(AF, Tab 71, Cady Decl., p. 45), which indicate that on October 7, 2013, the
appellant did indeed interview for the position of Chief Operating Officer at the
Santa Clara Medical Center. (AF, Tab 11, p. 295). However, with respect to the
expenses for that trip, Cady makes the following assertion in his declaration: I
reviewed OIG-subpoenaed documents from Kaiser Permanente (KP).
They
indicate that Ms. Helmans reimbursements for the interview described in

paragraph 29 above were paid as follows by Kaiser Permanente: $33.78 (meals),
$60.57 for one days car rental, $22.00 for airport parking, $141.34 for one
nights hotel stay, and round trip air fare of $259.80. This resulted in a total of
$517.49. (AF, Tab 71, Cady Decl. p. 45) (citing AF, Tab 11, pp. 278, 281-83,
286-88, 290-91, 293). In looking at the underlying evidence, it is somewhat more
nuanced:
Kaiser Permanente only reimbursed the appellant with a check for
$116.35 to cover meals, rental car, and airport parking, while the remaining
expenses for hotel ($141.34) and air travel ($259.80) were paid directly by Kaiser
Permanente to third-party vendors, and not to the appellant. (AF, Tab 11, p. 276).
The distinction makes somewhat of a difference because Form 278 only requires
the reporting of travel-related cash reimbursements received from one source
totaling more than $350. (AF, Tab 11, pp. 266, 272) (emphasis added). In this
case, the appellant only received a travel-related cash reimbursement of
$116.35, which is below the reporting threshold. Nevertheless, for the remainder
of the Kaiser Permanente interview trip, the appellant received more than $350 in

Exhibit 6, p. 47
47
value, which triggers the Form 278 requirement to report gifts (such as tangible
items, transportation, lodging food, or entertainment) received from one source
totaling more than $350.
(Id.).
Accordingly, I find that the agency has
established a 2013 unreported reimbursement received from Kaiser Permanente.

With respect to the five unreported 2013 gifts from Lewis, each is
addressed in turn. The first unreported 2013 Lewis gift involves roundtrip airline
tickets from Phoenix to El Paso for travel in March 2013 at a cost of
approximately $317.60. (AF, Tab 1, page 12). At the outset, it should be noted
that this item, standing alone, does not meet the $350 minimum reporting
requirement. (AF, Tab 11, pp. 266, 272). As Form 278 provides, the appellant
was only required to report gifts or travel-related cash reimbursements received
from one source totaling more than $350. (Id.). Nevertheless, to the extent it
may be combined with other unreported 2013 gifts from Lewis, the record
evidence supports the charge. Cadys Declaration confirms that he reviewed a
March 11, 2013 email from Lewis to the appellant confirming the Phoenix to El
Paso e-ticket at a cost of $317.60. (AF, Tab 71, Cady Decl., p. 44). Although
Cady again does not provide a record citation, this time, the email is included in
the record. (AF, Tab 11, pp. 204-208). The gift is also confirmed by Cadys
Declaration regarding his review of the OIG-subpoenaed documents from
Southwest Airlines, (AF, Tab 71, Cady Decl. p. 44), which references those
records. (AF, Tab 11, pp. 309-325).
The second unreported 2013 Lewis gift was a roundtrip airline ticket from
Phoenix to Eureka, California for travel in May 2013 at a cost of $1015.60. (AF,
Tab 1, PAM. p. 12). The agency has not proven this alleged gift by preponderant
evidence. Cadys declaration confirms his review of Lewiss April 4, 2013 email
to the appellant forwarding the United Airlines Eureka roundtrip e-ticket to the
appellant, which states [f]or your upcoming Avenue of the Giants Marathon.
(AF, Tab 11, pp. 211-13).
However, the problem with this allegation is also
found in Cadys declaration, which concedes that, based on OIG-subpoenaed

Exhibit 6, p. 48
48
United Airlines documents, the airfare was $1015.60, but only $507.80 was paid
(AF, Tab 71, page 44). Although that fact strongly suggests there was travel by
either the appellant or Lewis, but not both, Cady does not further explain the
discrepancy.
Moreover, the very OIG-subpoenaed documents relied upon by
Cady tend to show the passenger was Lewis, not the appellant. (AF, Tab 11, pp.
343-44). Paragraph 21 of Cadys declaration cites Tab 11, pages 343-44, which
is a difficult to decipher computer printout, but almost all the references are to
Lewis, not the appellant. Moreover, the very next two pages, which Cady does
not mention, seem to confirm Lewis as the passenger in the itinerary, and include
a copy of his boarding pass. (AF, Tab 11, pp. 345-46). There are no comparable
documents, a boarding pass or something similar, for the appellant. Accordingly,
I find that the agency has failed to prove this gift to the appellant.
The third unreported 2013 Lewis gift was a roundtrip airline ticket from
Phoenix to Portland, Oregon for travel in June 2013 at a cost of approximately
$389.80. (AF, Tab 1, PAM, p. 12).
Paragraph 24 of Cadys declaration
references his review of a June 26, 2013 email Lewis sent to the appellant
forwarding the e-ticket for this trip (AF, Tab 71, Cady Decl. p. 44). That email is
in the record. (AF, Tab 11, pp. 216-219). Moreover, Cady relies on the OIGsubpoenaed record from United Airlines, which further confirms the appellants
flight at Lewiss expense. (AF, Tab 11, page 348, column 3). Both the Lewis
email and the OIG-subpoenaed United Airline record confirm that the roundtrip
ticket was purchased in June for travel in July. (AF, Tab 11, pp. 216-219, 348). I
conclude that the agency has proven this gift allegation.
The fourth unreported 2013 Lewis gift was a set of tickets and parking fees
for the Mrs. Carter Show World Tour Starring Beyonc on about December 7,
2013 at a cost of $729.50. (AF, Tab 1, PAM, p. 12). Cady again confirms his
review of a December 13, 2013 email from the appellant to her staff regarding her
attendance at the Beyonc concert. (AF, Tab 71, Cady Decl., p. 45). That email
is found in the record. (AF, Tab 11, p. 235). In Paragraph 27 of his declaration,

Exhibit 6, p. 49
49
Cady also asserts the uncovering of an August 28, 2013 email from Lewis to the
appellant forwarding the Ticketmaster confirmation and including the message,
Enjoy! (AF, Tab 71, Cady Decl. p. 45). He again, however, fails to provide a
record citation to that email, and a search has not revealed it. Nevertheless, in
paragraph 28 of the declaration, Cady attests to his review of OIG-subpoenaed
documents from Live Nation/Ticketmaster, which confirmed that Lewis paid for
the tickets. (AF, Tab 71, Cady Decl. p. 45). Those documents are actually in the
record. (AF, Tab 11, pp. 300-302). Accordingly, I find it more likely than not
Lewis gave the appellant this gift.
The last of the five unreported 2013 Lewis gifts involved a December 2013
entry fee for the 2014 P.F. Changs Rock n Roll Arizona Marathon & Half
Marathon at a cost of $282.98.
(AF, Tab 1, PAM, pp. 12). Again, standing
alone, this allegation would be insufficient due to the $350 reporting requirement
(AF, Tab 11, pp. 266, 272).
Nevertheless, in combining it with other 2013
unreported gifts, Cadys Declaration confirms his review of Lewiss December

11, 2013 email to the appellant, which forwards the race registration confirmation
to the appellant and which was paid by an individual with Lewiss billing address
and the last four digits of Lewiss VISA credit card number. (AF, Tab 71, Cady
Decl., p. 45). That email is also in the record. (AF, Tab 11, pages 230-32). I find
that the agency has proven this last gift, as well.
In sum, with respect to the Charge 3, I find the agency has proven the
following. For Specification A, I find that the agency has proven both of its
allegations regarding unreported 2012 Lewis gifts: (1) the $465.07 roundtrip
airline ticket between Phoenix and Vancouver; and (2) the $355.60 roundtrip
airline ticket between Phoenix and Portland, Oregon.
For Specification B,
regarding the unreported 2013 Kaiser Permanente monies, I find the agency has
proven the allegation, but only with respect to the hotel and airfare. As for the
five unreported 2013 Lewis gifts, I find the agency has proven the payment for
the $317.60 roundtrip airfare between Phoenix and El Paso, the $389.80 roundtrip

Exhibit 6, p. 50
50
airfare between Phoenix and Portland, Oregon, the Beyonc world tour tickets
and parking and the P.F. Changs Rock n Roll Arizona Marathon. The agency
did not adduce preponderant evidence regarding the $1015.60 roundtrip airline
ticket between Phoenix and Eureka because the underlying paperwork suggests
that the trip was taken by Lewis, not the appellant.
In response to these charges, the appellant asserts three arguments, none of
which carries the day. First, the appellant argues that she is unable to respond to
the merits of the allegations based on due process considerations. (AF, Tab 70,
Appellants Merits Brief, pp. 53-54). As ruled previously, although no adverse
inference has been drawn against the appellant, the agency has proven the charge
without any inference. The appellant also argues that the agency has not brought
a charge of failure to report gifts against any senior executive in the past five
years, or possibly ever (AF, Tab 70, page 54). Again, this speaks to penalty not
the legality of the charge.
Finally, the appellant argues that the agency neither alleges nor cites to
any evidence that Ms. Helman used the purported gifts at issue or that she did not
repay the purported giftor for those gifts. (AF, Tab 72, Appellants Merits Brief,
p. 18). I reject that argument. First, it is irrelevant whether the appellant used or
repaid the gifts because Form 278 requires disclosure of gifts that were
received by the appellant, regardless of whether they were used or repaid. (AF,
Tab 11, pp. 266, 272). See LaChance, 147 F.3d at 1371 (the agency need only
prove what it has charged in the specification). Moreover, the record supports the
conclusion that the gifts were accepted and utilized.
For example, when Mr.
Lewis emailed the appellant travel confirmation for her flight to Eureka, he wrote
For your upcoming Avenue of the Giants Marathon. Good Luck! (AF, Tab 11,
p. 211). The Kaiser Permanente records are clear about the payments made to
and on behalf of the appellant, with no suggestion of repayment. (AF, Tab 11,
pp. 227, 276-298). Likewise, when Lewis emailed the appellant to confirm her
trip to the Rock n Roll Arizona Marathon, the appellant responded by email

Exhibit 6, p. 51
51
Whoooo hoooo! (AF, Tab 11, page 230), and Lewis replied: Hope you feel
that way after you run the marathon . :) I think youre in Sedona two day[s]
later . :) (AF, Tab 11, p. 230).
Similarly, as detailed above, the OIG-
subpoenaed airline records confirm that the appellant took the flights. I find the
agency has adduced preponderant evidence in support of this specification, and it
is sustained.
The appellant has not established her affirmative defenses.
The appellant has argued from the start that the agency violated her preremoval due process rights by failing to give her meaningful notice and
opportunity to respond to the action pending against her, and also that the postremoval proceedings here violate her due process rights because of their
abbreviated nature. (AF, Tab 1, Appeal Form, p. 6, Tab 70, Appellants Merits
Brief, pp. 19-35; Tab 72, Appellants Response Brief, pp. 5-8). As I explained in
my December 8, 2014 ruling, violation of due process is a viable affirmative
defense in proceedings under 38 U.S.C. 713. (AF, Tab 25). The appellant
bears the burden of proving this affirmative defense by preponderant evidence. 5
C.F.R. 1210.18(b)(3).
The essential requirements of due process are prior notice and an
opportunity to respond. Cleveland Board of Education v. Loudermill, 470 U.S.
532, 546 (1985). As the Supreme Court has explained, dismissals for cause will
often involve factual disputes, and consideration of the employees response may
help clarify such disputes before any deleterious action is taken. In addition,
even if the facts are clear, the appropriateness or necessity of the discharge may
not be; in such cases, the only meaningful opportunity to invoke the discretion of
the decision maker is before the termination takes effect. See id. at 543. In order
for this opportunity to respond to be meaningful, the deciding official must
actually consider an employees timely response to a proposed action.
See
Hodges v. U.S. Postal Service, 118 M.S.P.R. 591, 594 (2012) (the deciding

Exhibit 6, p. 52
52
officials complete failure to consider the appellants written response to the
proposal notice before issuing a decision constitutesin and of itselfa
violation of minimum due process of law).
In this case, the appellant alleges that the deciding official had already
decided to remove her before she responded to the notice of pending action, thus
failing to give her response meaningful consideration, and thereby violating her
pre-removal due process rights. (AF, Tab 1 at 6; Tab 70, Appellants Merits
Brief, pp. 24-32).
Specifically, she argues that the agency was under intense
political pressure to remove her, and that the deciding official bowed to this
pressure without regard to the appellants side of the story. (Id., pp. 25-30). In
support of her argument, the appellant cites to numerous public comments and
other documents by and from individuals expressing their desire that she be
removed, some of which were quite harsh. (Id., pp. 25-27). Most specifically to
her, she cites a letter from Arizona Senators John McCain and Jeff Flake to
Secretary McDonald stating that [t]he clearest example of your failure to change
the culture at the VA is the continued employment of Sharon Helman, the former
director of the Phoenix VA Health Care system, (AF, Tab 48, pp. 7-8), a news
article quoting Representative Jeff Miller as stating that the agency needs to
move much more quickly to purge other disgraced personnel from its payroll,
including the appellant, (id., p. 13), a press release from Representative Millers
office stating that the agency needs to get serious about purging villains, (id., p.
32), a hearing before the House Committee on Veterans Affairs, in which
Representative Kirkpatrick stated that he and his constituents are calling for the
[appellants] immediate firing. We want that to happen immediately. (AF, Tab
49, p. 17). The appellant also cites public comments by Secretary McDonald,
stating that he intended to hold senior leadership at the Phoenix VAHCS
accountable through appropriate disciplinary action. (AF, Tab 45, pp. 16, 19-20;
Tab 70, Apppellants Merits Brief, p. 26).
Finally, she cites a letter from
Secretary McDonald to Representative Miller, explaining delays in the agencys

Exhibit 6, p. 53
53
taking action against the appellant and assuring him that the agency will move
swiftly, within the bounds established by law, to bring these matters to closure.
(AF, Tab 72, Appellants Response Brief, pp. 30-32). More probably than not,
the agency was under political pressure, amplified through the media, to remove
her from service, and Secretary McDonald responded to this pressure by assuring
Congress and the public that the agency was taking swift action to address the
situation.
Nevertheless, the agency submitted a declaration from Deputy Secretary
Gibson, the actual deciding official in this case, explaining that he took his job as
deciding official seriously, that he did not discuss the matter with any agency
employee apart from counsel and human resources staff, that no agency official
pressured him to reach a particular result, and that despite congressional and
media attention, he personally felt no pressure to take a particular action against
the appellant, and in fact, he does not allow the media or Congress to pressure or
influence him in the performance of his official duties as Deputy Secretary. (AF,
Tab 71, Agencys Merits Brief, Gibson Decl., pp. 57-59). He further explained
his decision-making process and the evidence that he took into account in
arriving at his decision, including the appellants response to the notice of
pending action. (Id., pp. 54-59).
Weighing the circumstantial evidence of political and media pressure
against the direct evidence of impartiality by the deciding official, I find that the
appellant has not proven she was deprived of a meaningful opportunity to respond
to the PAM before her removal. See Blake v. Department of Justice, 81 M.S.P.R.
394, 413-14 (1999).
While not wholly discounting the scrutiny to which the
agency has been subjected recently, and with respect to the appellant in
particular, I find insufficient reason to disbelieve the deciding officials sworn
claim of impartiality.
Absent effective cross examination or some kind of
smoking gun, overcoming that declaration is a high hurdle. I further find that,
notwithstanding the demands from individual congressmen that the appellant be

Exhibit 6, p. 54
54
removed from service, there is insufficient evidence to find that Deputy Secretary
Gibson ever promised any particular result in her disciplinary action.
Rather,
Secretary McDonald assured Congress and the public that the process would
proceed as quickly as practicable and that the course of events would be
determined by the law and the evidence. (AF, Tab 45, pp. 16, 19-20; Tab 72 pp.
30-32).
The appellant also argues that the agency deprived her of pre-removal due
process by giving her only 5 days to respond to the notice of pending action,
which she argues was insufficient under the circumstances.
(AF, Tab 70,
Appellants Merits Brief, pp. 31-32). I agree with the appellant that 5 days was a
short amount of time to respond to this notice of pending action. Nevertheless, I
do not find the response period was so short as to constitute, on its face, a due
process violation, i.e., lack of a meaningful opportunity to respond to the charges.
See Lee v. Western Reserve Psychiatric Habilitation Center, 747 F.2d 1062,
1068-69 (6th Cir. 1982) (3 days notice was sufficient to satisfy due process in
the hospitals termination action).
Furthermore, recognizing that due process is, to a large extent, situational,
I have considered the particular facts of this case, and find that the appellant has
not established that the 5-day response period that she was afforded violated her
due process rights. 13 See Mathews v. Eldridge, 424 U.S. 319, 335 (1976). ([D]ue
process is flexible and calls for such procedural protections as the particular
situation demands.) (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)).
Specifically, I find that the appellant was aware for over 5 months, since the May
30, 2014 notice of proposed removal, that the agency was pursuing disciplinary
action against her, and of the general bases for at least some of the misconduct
alleged in the November 10, 2014 notice of pending action. (AF, Tab 1, p. 9, Tab
13
The agency asserts the appellant actually had eight days to respond. I use the shorter
period to evaluate the appellants claim.

Exhibit 6, p. 55
55
18, p. 29). Thus, this is not a case where an employee was caught off guard. I
further find that the appellant did not request an extension of time to respond to
the proposal. She argues that the VAs procedures do not allow any discretion
in the time frame for [her] response, (Tab 70, Appellants Merits Brief, p. 31),
but this characterization is not quite accurate. The agencys written procedures
provide that the Senior Executive will have 5 business days after receiving both
the Pending Action Memorandum and the evidence file to respond in writing to
the Pending Action Memorandum. (AF, Tab 12, p. 248). The procedures do not
expressly provide for an extension of this time period, but neither do they forbid
it.
(Id., pp. 242-49).
Indeed, Deputy Secretary Gibson stated in his sworn
declaration that he offered the appellant an extension of time to respond to a

discrete issue for which he obtained additional information after the appellant had
submitted her response, but the appellant declined the offer. The appellant has
not offered evidence to rebut that point. Under these circumstances, I cannot find
that the 5-day response period deprived the appellant of due process.
Regarding post-removal due process, the appellant argues that the
abbreviated 21-day statutory adjudication period is unreasonable and calculated
to deprive her of due process, and that the Boards implementing regulations
deprive her of the opportunity to conduct meaningful discovery and develop the
record.
(AF, Tab 70, Appellants Merits Brief, pp. 32-35). See 38 U.S.C.
713(e)(1), (3), 5 C.F.R. 1210.12. As an initial matter, the Boards discovery

regulations are calculated, in part, to assist administrative judges, and the parties,
in complying with the statutory 21-day adjudication period.
truncated because the entire process is truncated.
Discovery is
Furthermore, the Boards
discovery regulations are alterable at the presiding judges discretion, something

not sought here. The problems the appellant cites are all children born of the
statute. Therefore, it seems the appellants due process challenges to these postremoval proceedings are all tantamount at a due process challenge to the statute
itself. I lack the power to rule on the constitutionality of the enabling statute

Exhibit 6, p. 56
56
which provides the authority to hear this case in the first place.
See Special
Counsel v. Bianchi, 57 M.S.P.R. 627, 632 (1993).

The appellant also argues that the agency committed harmful error in the
application of its procedures when it removed her. Harmful error under 5 U.S.C.
7701(c)(2)(A) cannot be presumed; an agency error is harmful only where the
record shows that the procedural error was likely to have caused the agency to
reach a conclusion different from the one it would have reached in the absence or
cure of the error. See, e.g., Stephen v. Department of the Air Force, 47 M.S.P.R.
672, 681, 685 (1991).
The appellant also bears the burden of proving this
affirmative defense by preponderant evidence. 5 C.F.R. 1210.18(c).

In this case, the appellant argues that the agency violated its written
procedure requiring that[t]he Secretary or his designee will give full and
impartial consideration to the Senior Executives reply, if any, and all evidence of
record. (AF, Tab 12, p. 248; Tab 70, Appellants Merits Brief, pp. 57-58). The
appellant argues that a poorly constructed charging document, the defeat of
several specifications by their own language or by the Agencys own evidence,
and the agencys challenge to the appellants response to Charge 1 as irrelevant
to these proceedings indicate that the deciding official was not fair and impartial
as required. (AF, Tab 70, Appellants Merits Brief, pp. 57-58). Although I agree
with the appellant that the agencys case suffers from some infirmities, I do not
think that these, or the agency attorneys litigation strategies during this appeal,
are particularly probative of the deciding officials state of mind. Once again, as
found above, I find insufficient reason to doubt Deputy Secretary Gibsons
impartiality as expressed in his declaration.
The appellant also points to
irregularities in the agencys action to take back bonus money she was paid, such
as not turning over documents to her that possibly should have been. She does
not, however, tie those actions to the deciding official here.
Because the
appellant has not shown that the agency committed any procedural error, I find
that she has not proven her claim of harmful procedural error.

Exhibit 6, p. 57
57
The appellant has not rebutted the presumption of the reasonableness of the
penalty.
The appellant first makes a legal argument about penalty mitigation, i.e.,
the practice of reducing an agencys chosen penalty to some lesser form of
punishment.
First she contends the Board was not authorized to actually
promulgate regulations.
She also contends that the all-or-nothing rebuttable
presumption approach to penalty review established by 5 C.F.R. 1210.18 is

unwarranted and that penalty mitigation is still permissible.
She notes that
penalty mitigation has been a long standing fixture of civil service law and that in
passing 38 U.S.C. 713 Congress did not expressly rule it out, but could have, as
it did with particular regulatory and statutory sections. She further points out that
Congress did expressly make appeals under Section 713 subject to the provisions
of 5 U.S.C. 7701, and 5 U.S.C. 7701(b)(3) provides the authority to mitigate.
(AF, Tab 70, Appellants Merits Brief, pp. 57-59). The appellant may or may not
have a fair argument. However, it will not be addressed. The time to raise a
challenge to the procedures used to decide this appeal was before the motion
deadline.
For its part, the agency argues that the Boards seminal penalty
consideration decision, Douglas v. Veterans Administration, 5 M.S.P.R. 280
(1981), is not applicable to this appeal under 38 U.S.C. 713. However, it also
concedes that some of the factors set out in Douglas were factors the Deputy
Secretary himself considered in arriving at his decision. (AF, Tab 71, Agencys
Merits Brief, pp. 29-31). As the parties were previously notified, whether the
appellant can rebut the presumption of the appropriateness of the penalty imposed
in this case, removal, will be determined by the totality of the circumstances.
Simply because certain types of circumstances were discussed in Douglas does
not render them inapplicable. Therefore, the Douglas factors will be considered
along with, as ruled earlier, any other factor the parties feel is germane, even
though it is not set out in Douglas.

Exhibit 6, p. 58
58
The arguments above aside, the appellant points to several factors in her
attempt to rebut the reasonableness of her removal. At the outset, it must be
noted the appellant is attempting to rebut a presumption.
For the proven
misconduct, the penalty of removal is reasonable unless and until the appellant
adduces sufficient evidence to prove otherwise. See 2 McCormick On Evidence
342, 344 (7th ed.).
The appellant correctly anticipated that Charge 1 would not be sustained,
and she contends those charges were the most serious against her as they were the
ones the Deputy Secretary noted in the PAM as making her not suitable for the
civil service. She wrongly anticipated, however, that Charge 2, Specification A
would not be sustained. However, as noted above, the charge that a manager
either took or allowed an action which could be perceived as retaliation is not
particularly serious because any time a manager takes some personnel action
against an employee who has engaged in some kind of protected activity, a
perception of retaliation could arise, subject to the legal contours of a retaliation
claim for the particular type of protected activity, even if there is no deliberate ill
intent or carelessness on the managers part. Thus, while that specification was
sustained, it is not particularly serious misconduct. She contends that in looking
at Charge 2, Specification B, and all of Charge 3, it is not serious misconduct and
removal is unreasonable, citing a case holding inadvertent offenses lessen the
seriousness of the misconduct. I must disagree.
In the context of the appellants position, as an SES Director of a sizable
health care system with a large budget, one must be scrupulous to avoid even the
appearance of a conflict of interest and to correctly report the things of monetary
value one receives from others. See Coons v. Department of Navy, 15 M.S.P.R.
1, 5 (1983) (Creating the appearance of a conflict of interest constitutes a
serious breach of trust. The Government clearly has an interest in prohibiting
such conduct, and in ensuring that its agents and employees are not compromised
in the performance of their duties as a result of any outside influences). The

Exhibit 6, p. 59
59
higher ranking one is, the more important those things become. See Walcott v.
U.S. Postal Service, 52 M.S.P.R. 277, 284 (1992) (an agency can hold a highranking employee to a higher standard of conduct for purposes of penalty), aff'd,
980 F.2d 744 (Fed. Cir. 1992).
Moreover, I conclude that the appellants
misconduct in Charge 2, Specification B and in Charge 3, was not inadvertent.

Sincerely forgetting about one of the plane rides purchased for her might be
understandable in some circumstances but, the notion she actually forgot them all
strains credulity.
Moreover, accepting gifts such as tickets to a popular
performers concert from a person who represents companies seeking to do

business with the agency was, more probably than not, not an accident or mistake.
I conclude the appellants offenses are serious and more likely than not,
intentional.
See Murry v. General Services Administration, 93 M.S.P.R. 554,
557-58 (2003); Wynne v. Department of Veterans Affairs, 75 M.S.P.R. 127, 13536 (1997) (the nature and seriousness of the misconduct and its relation to the
employees duties, position, and responsibilities, including whether the offense
was intentional are paramount considerations).
The appellant contends she a long a history of quality service with the
agency and, until this point, it was blemish free. See Alexander v. U.S. Postal
Service, 67 M.S.P.R. 183, 190 (1995) (long service with a good history weigh in
favor of the employee). Indeed, she avers she worked her way up from a low
ranking Program Assistant position to ultimately be chosen for a series of facility
director positions. She has not adduced evidence of that earlier work history,
however.
On the other hand, the agency also adduced no evidence that the
misconduct at issue here was the last straw on top of a history of problematic
behavior, and no such evidence is apparent from the record. Ultimately, though,
it is the appellants burden to prove what she asserts to rebut the penalty and, she

Exhibit 6, p. 60
60
has not established a long, positive work history by preponderant evidence. 14
Moreover, even if the appellant had adduced such evidence, it is outweighed by
the seriousness of her misconduct and its relation to her position. See id.
With considerations about notoriety of the appellants misconduct, I am
aware of none, insofar as the sustained misconduct is concerned. The press and
Congressional attention has been on the charges the agency failed to prove. This
weighs in favor of the appellant. Then there is the issue of notice. While I find it
more likely than not the appellant was not on notice that taking an action which
might be perceived as retaliatory could be misconduct on her part, I find she was
on notice that not accurately completing the Office of Government Ethics Form
278 was actionable misconduct, because the form advised next to the signature
box that by signing she was certifying that the statements she made on the form
were true, correct and accurate to the best of her knowledge. The form also states
in the following section that another official must certify that the appellants
answers avoid even the appearance of a conflict of interest.
See Ware v.
Department of Veterans Affairs, 76 M.S.P.R. 427, 435-36 (1997) (the fact that
the appellant was clearly on notice of the procedures to be followed to avoid the
misconduct support the removal penalty).
I conclude the appellant has little rehabilitative potential.
She has
steadfastly denied any wrongdoing in the course of this appeal and attempted to
deflect attention from her own actions by pointing to political considerations and
complaining the agency has been looking in to her private life. While it is likely
that the political spectacle which followed the revelations about how the agency
was conducting its business is what led the agency to apply scrutiny to her, taking
a close look was not unwarranted under the circumstances. Moreover, even if it
was somehow inappropriate for the agency to scrutinize the appellant in the
14
The appellant points to her Ex. 1 2, 4, 8. The Exhibit 1 to the brief is a

declaration from the appellant, but it does not discuss her work history.

Exhibit 6, p. 61
61
manner it did, when the agency did look, it found serious financial improprieties
on her part. They are not to be simply ignored. Her failure to take responsibility
for any of the sustained misconduct does not support a finding of rehabilitative
potential. See Dolezal v. Department of Army, 58 M.S.P.R. 64, 71 (1993) (in
holding an appellant had little, if any, rehabilitative potential, the Board noted
the appellant still does not understand the serious nature of his misconduct. He
still contends that his [misconduct] was none of the agency's business and that
He does not appear to understand that he is held to a higher standard of conduct
because of his SES status).
In sum, considering all the factors cited by the parties, including the
discretion the agency argues it should have under 38 U.S.C. 713, I conclude the
ones outlined above are most relevant. The appellant has not established that the
penalty of removal is unreasonable under the circumstances of this case. It must,
therefore, be upheld.
DECISION
The agencys action is AFFIRMED.
_/S/__________________________
Stephen C. Mish
NOTICE TO APPELLANT
Pursuant to 38 U.S.C. 713(e)(2), this decision is final and not subject to
any further appeal.

Exhibit 7, p. 1

DENVER FIELD OFFICE
TONJA LYNN LANEY,

Appellant,
DOCKET NUMBER
DE-1221-15-0139-W-2
v.
AFFAIRS,
Agency.
DATE: October 14, 2015
Tonja Lynn Laney, Scottsdale, Arizona, pro se.

Alfred Steinmetz, Esquire, Phoenix, Arizona, for the agency.
BEFORE
David S. Brooks
Administrative Judge
INITIAL DECISION
INTRODUCTION
On January 2, 2015, the appellant timely filed this individual right of
action (IRA) appeal alleging that in reprisal for her making protected disclosures
and providing testimony to the Inspector General, the agency detailed her from
her position as Chief Fiscal Officer pending an administrative investigation and
searched her office.
Initial Appeal File 1 (IAF1), Tab 1.
The Board has
jurisdiction over this appeal pursuant to 5 U.S.C. 1214(a)(3), 1221(a), 1221(e).

IAF1, Tab 9; Initial Appeal File 2 (IAF2), Tab 7.
The hearing the appellant
requested was held on September 1, 14, and 15, with the record closing at the

Exhibit 7, p. 2
2
conclusion of the hearing. Initial Appeal File 2 (IAF2), Hearing Compact Disc
(HCD).
For the following reasons, I find the agency subjected the appellant to
whistleblower reprisal.
The appellant is hereby notified that she may file a
motion for the initiation of an addendum proceeding on damages. See 5 C.F.R.

1201.204(d)-(e).
In brief, I find that the agencys detail of the appellant was a significant
change in working conditions appealable under the Whistleblower Protection Act,
and that the agencys search of her office was simply part and parcel of the detail,
although it was not a separately appealable significant change in working
conditions under 5 U.S.C. 2302(a)(2)(A)(xi). I find that the proximate reason
for the agencys detail of the appellant and related search of her office was an
administrative investigation into allegations about her, but more importantly, I
find that the underlying administrative investigation was commenced primarily
because Maria Schloendorn, chief of the Human Resources Office, introduced
baseless allegations against the appellant in reprisal for her whistleblowing
activity.
See IAF2, Tab 15 at 372-73 (investigative report summary); HCD,
Scherpf (identifying basis of investigation), Pokorny (establishing retaliatory

animus of Schloendorn and her willingness to manufacture charges against the
appellant), Nemcek (establishing Schloendorns insistence of a search based on
files the appellant had in her office), Appellant (establishing Schloendorns
knowledge of and interest in files the appellant indicated she was going to share
with the Inspector General). There was at least one basis for the investigation
that had no direct tie to Schloendorn, namely the hostile work environment
complaint of one of the appellants staff. IAF1, Tab 11 at 4-5, 23-24. However, I
find the agencys defense of its actions fell far short of establishing by clear and
convincing evidence that it would have detailed the appellant and subsequently

Exhibit 7, p. 3
3
searched her office in the absence of the appellants whistleblowing and Inspector
General activities.
A. Background
The following is undisputed unless otherwise noted.
The appellant has
been Chief Fiscal Officer (CFO) (sometimes referred to as Chief Financial

Officer), GS-14, for the Phoenix Veterans Affairs Healthcare System (Phoenix
office) since February 2012, and prior to that she was CFO for the Amarillo
Veterans Affairs Healthcare System (Amarillo office).
HCD, Appellant.
As
CFO, the appellant oversees the Phoenix offices Fiscal Services unit. Id.
During the timeframe of 2013 to 2014, the Associate Director of the
Phoenix office was Lance Robinson, and the Assistant Director was John Scherpf;
both Robinson and Scherpf testified at the Boards hearing.
HCD, Robinson,
Scherpf. Robinson has been on administrative leave for approximately the last
500 days for reasons unrelated to the instant IRA appeal, and Scherpf left the
Phoenix office in June 2015 to accept a position with a private entity. Id.
Also during the timeframe of 2013 to 2014, the chief of the Phoenix
Human Resources Office Management Service (HR) was Maria Schloendorn;
HRs Section Chief for Employee Relations was Rodney Daughetee; Joe Masisak
was an HR Specialist who occasionally acted as HR chief; and Jennifer Nemcek
was an Employee and Labor Relations Specialist. HCD, Robinson, Daughetee,
Nemcek.
In December 2013, Caryl Pokorny joined HR as supervisor of the
Benefits section.
HCD, Pokorny.
retired from federal service.
In or after December 2014, Schloendorn
HCD, Appellant.
testified at the Boards hearing:
The following HR employees
Daughetee, who has since left the Phoenix
system for another state; Nemcek, and Pokorny.
The appellant called
Schloendorn as a witness and requested a subpoena to compel her attendance.

IAF2, Tab 7. However, during a hearing break in an unrecorded conversation
with the appellant and the agency representative, the appellant stated that

Exhibit 7, p. 4
4
Schloendorn had refused service of her subpoena when she had it delivered to
her address of record. After I apprised the appellant of the documentation that
she would need to submit for me to consider whether enforcement of the
subpoena should be sought, and after I reminded her that she was the only party
that had Schloendorn as a witness and that she thus had the right to withdraw
Schloendorn from the witness list, she did so.
I recorded the lack of any
objection to the withdrawal. HCD, Withdrawal of Schloendorn.

On November 29, 2013 (first instance of protected activity), the appellant,
in response to an email asking her to concur with a Student Loan Repayment
Program (SLRP) request, sent the following to PHXVAHCS/DIR with a carbon
copy to Robinson:
Nonconcur. Why didnt this go out to all services for a submission?
Why are the only new title 5 recommended approvals for PVAHCS
HR employees who coordinated the suspense and oversees the
program? There are other hard to fill title 5/Title 38 positions that
should be considered for this as well. This should go out to all
services for submission and ranked by pentad and/or Director before
submission.
IAF2, Tab 15 at 89 (emphasis added). After a series of email exchanges that
followed, and which included Schloendorn, Robinson sent the following to, inter
alia, Schloendorn and the appellant:
Please meet and address these issues today.
Im forwarding this message to our facility officer and requesting
that they conduct an audit to ensure that were following both our
station level policy and HR policy and OPM guidelines if they exist.
Id. at 85.
On January 23, 2014 (second instance of protected activity), the appellant
sent the following to Robinson, entitled Timekeeping irregularities:
[F]iscal service has discovered timekeeping irregularities. I am
currently recommending that we send out clear instructions
reminding supervisors and chiefs of the appropriate use of CT, OT,
and telework and then revisit in our annual timekeeping audits.

Exhibit 7, p. 5
5
Education is absolutely necessary at this point as the first employee
is clinical administration and the second is an admin HR supervisor.
Id. at 93-94. The email was forwarded to Schloendorn on January 27, 2014. Id.
at 93.
The appellants email went on to describe the Employee #1 GA-11
Admin as [n]ot telework eligible but appears working OT from home due to
irregularity of hours, Odd OT hours, and OT does not appear to be
preapproved, before listing data about ten days of work claimed by the
employee.
Id. at 94.
The appellants email described Employee #2 GS-13
Supervisor as [n]ot telework eligible but appears working OT from home due
to irregularity of hours, [t]aking leave and working CT in the same day,
[t]aking Friday off and working CT Saturday, and CT used to complete TMS
training when by law CT/OT cannot be used to complete regularly scheduled
training, before listing data about seven days of work claimed by the employee.
Id. at 95. On January 28, 2014, Masisak sent an email to Robinson, Schloendorn,
and the appellant, stating, we will need the employees[] names so they could
evaluate the concerns. Id. at 92. On the same date, the appellant sent a private
email to Robinson stating, Joe [Masisak] was the approving official on the
second timecard. Id.
On May 14, 2014 (third instance of protected activity), the appellant
provided testimony to the Office of Inspector General about a number of matters
pertaining to the Phoenix office. HCD, Appellant; IAF1, Tab 1 at 5; IAF2, Tab
15 at 79.
On May 15, 2014 (alleged retaliation), Steve Young, acting Medical Center
Director, placed the appellant on a temporary administrative detail to the Phoenix
offices Quality, Safety and Improvement Section. IAF1, Tab 11 at 34 (lasting
until return to CFO position on September 8, 2014). The notice of detail stated:
An allegation has been filed that necessitates an investigation in
which you are named as a possible subject. The misconduct alleged
is of a very serious nature and during the investigation [it] would be
inappropriate for you to remain in contact with your staff who may

Exhibit 7, p. 6
6
be complainants or witnesses.
As a result, you are being
Administratively/Involuntarily Temporarily Detailed, so that the
agency will have the opportunity to determine whether inappropriate
conduct existed.
Id.
The appellant was directed to report to Michelle Bagford, Chief of the
Quality, Safety and Improvement Section, effective May 16, 2014.
Id.
The
agency temporarily appointed Debbie Simon as acting CFO and Debbie Hagen as
assistant CFO. HCD, Simon, Hagen, Daughetee. The appellant testified without
dispute that she performed no work while on that detail. HCD, Appellant. The
administrative investigation that followed was conducted by the Administrative
Investigation Board (AIB). HCD, Scherpf.
After the appellant was informed of her detail away from her CFO position,
she was escorted by Nemcek to her office to retrieve any personal belongings, but
was prevented from taking any agency files with her, per orders Nemcek had
received. HCD, Appellant, Nemcek. I reserve the bulk of my findings on the
search for below.
However, what follows in the instant paragraph was
undisputed. After the appellant left the building, Simon and Hagen searched the
appellants office, with agency Detective Robert Mueller there for the ostensible
purpose of either observing or providing guidance on searching techniques.
HCD, Nemcek, Simon, Hagen, Daughetee, Mueller. Simon and Hagen sorted the
contents of the appellants office into the categories of work product, personal
belongings, and items they flagged as being questionable for a supervisor to have,
although they testified that it was not upon their own initiative that they flagged
questionable items. HCD, Simon, Hagen, Daughetee, Mueller. Either Simon and
Hagen or Mueller boxed the personal and questionable items, and Mueller took
the boxes to Daughetee, who stored them.
HCD, Mueller, Daughetee.
The
agency changed the appellants offices lock and taped shut the edges of her
offices door. HCD, Mueller.
On May 23, 2014, at Detective Muellers request, the appellant appeared
for questioning about the boxed contents of her office. HCD, Mueller, Appellant.

Exhibit 7, p. 7
7
As to questions about documentation she had from her prior employment at the
Amarillo office, the appellant told Mueller that many of the documents were
best practices templates for her work in Phoenix.
HCD, Appellant.
As to
questions about her documentation of travel savings awards of two Amarillo

employees, the appellant told Mueller that they were evidence directly related to
defending herself against grievances that had been filed while she was at
Amarillo, but that she had forgotten to destroy the documents after the grievances
were resolved. Id. As to questions about a key that was found in her office that
was reported missing by her predecessor, the appellant told Mueller that she did
not know the lock to which the key belonged nor did she have any way of
knowing that. Id. Based on the appellants retention of the Amarillo employee
awards documentation, Mueller asked for the U.S. Attorneys Office to criminally
charge the appellant with willful removal of government property, and the U.S.
Attorney did so. HCD, Appellant; Mueller. Mueller testified that the agency
ultimately concluded that it could not bring the charge in federal court and that it
should have pursued charges in state court. HCD, Mueller. However, the agency
stopped pursuing the charge, and it was ultimately dismissed with no further
criminal action taken on it. Id.
The Administrative Investigation Board was composed of the Associate
Director of the San Diego Medical Center, the equal employment opportunity
manager for the agencys Maine Healthcare System, the chief financial officer for
the Salt Late Medical Center, the Purchased Care Manager for the Southwest
Healthcare Network, and an Employee Relations Specialist for the West Texas
Health Care System. HCD, Scherpf; IAF1, Tab 11 at 26-32. On August 4, 2014,
the AIB issued its findings on the allegations it had received pertaining to (1)
inappropriate behavior in violation of EEO principles, (2) inappropriate behavior
in violation of leave policy, (3) behavior violating merit systems principles, and
(4) inappropriately released protected information. IAF2, Tab 15 at 372. The
Administrative Investigation Board found, in pertinent part:

Exhibit 7, p. 8
8
The issues identified in this investigation had already been reviewed
in two previous fact findings, and the fact finding found no evidence
to support the allegations.
***
Ms. Maria Schloendorn, Chief Human Resources Officer (HRO) was
not forthcoming with information that she could have offered to
assist with the investigation.
Ms. Maria Schloendorn ... was
interviewed three times during this investigation. It was necessary to
continue to interview her given the numerous times her name was
brought up in the sworn testimonies, where she was the source of
pertinent information related to this investigation. At the end of
every interview, the panel asked if there was anything we should
know that was not asked relating to this interview that we had not
asked. The testimony consistently reflected, the HROs lack of
knowledge or awareness or a deliberate attempt to misdirect the
board from information germane to the inquiry: (1) She conducted a
Fact Finding related to an anonymous letter alleging Ms. Laney was
having sex in her office and was promoting a hostile work
environment. When asked for the report, we were told there was no
copy unless the Associate Director, Lance Robinson had a copy. (2)
The board believed that she knew about an investigation done
internally by the Phoenix VA on anonymous letters having the same
allegations (scope); similar, if not exactly, to our investigation. We
all felt that this was important to know and w[ere] surprised that she
was not forthcoming with this until subsequent interviews. It was
more surprising that she would keep this information from us, given
she conducted the internal investigation and also surprising she kept
no documentation as to her findings. (3) She did not provide
documents that were requested of her.
Id. at 373 -75. The AIB sustained the charge that the appellant violated policy by
attending a scheduled court date while failing to record that time away from her
station; the AIB recommended a coach/mentor for the appellant and that she
should receive appropriate disciplinary action as determined by the table of
penalties for falsifying a timecard. Id. at 373-74, 377. However, the AIB found
that the appellant did not engage in the other three alleged inappropriate
behaviors, nor did she inappropriately release protected private information. Id.
at 373-74.
The AIB recommended: Ms. Maria Schloendorn should receive

Exhibit 7, p. 9
9
disciplinary action as appropriately identified by the table of penalties. Id. at
377.
On September 8, 2014, Scherpf returned the appellant to her position as
CFO. IAF2, Tab 15 at 16 (appellant submission); HCD, Appellant (identifying
Scherpf as the individual who informed her she was being returned). Two weeks
later, on September 22, 2014, the appellant re-obtained all the files seized from
her office, sealed in two boxes and secured in Human Resources. Id.
The appellant filed a whistleblower retaliation complaint with the Office of
Special Counsel (OSC), and thereafter filed this Board appeal. IAF1, Tabs 1, 2,
9.
I found the appellant exhausted OSCs remedies and raised nonfrivolous
allegations of whistleblower reprisal that: (a) the appellant engaged in protected

activity when she (1) reported concerns about a Student Loan Repayment
Program suspense on or about November 30, 2013, (2) reported matters related to
timekeeping irregularities on or about January 28, 2014, and (3) provided
testimony to the Inspector General on May 14, 2014; and (b) those activities were
a contributing factor in the agencys decisions to (1) detail her away from her
CFO position pending an administrative investigation and (2) search her office.
IAF1, Tab 9; IAF2, Tab 7.
B. Applicable Law and Burdens of Proof
Based on the appellants claims to have made protected disclosures and
testified with the Inspector General, she has the burden to prove, by preponderant
evidence, that (a) she engaged in protected activity under 5 U.S.C. 2302(b)(8)
and/or (b)(9)(C), and (b) such (b)(8) disclosure or (b)(9)(C) Inspector General
activity was a contributing factor in the personnel action(s) at issue. 5 U.S.C.
1221(e)(1) (applying contributing factor standard to, inter alia, 2302(b)(8)
disclosures and (b)(9)(C) cooperating with or disclosing information to the
Inspector General); Whitmore v. Department of Labor, 680 F.3d 1353, 1364
(2012); Colbert v. Department of Veterans Affairs, 121 M.S.P.R. 677, 6 (2014).
A preponderance of the evidence is that amount of relevant evidence which a

Exhibit 7, p. 10
10
reasonable person, considering the record as a whole, would accept as sufficient
to find that a contested fact is more likely true than untrue. 5 C.F.R. 1201.4(q).
I informed the appellant of her burden of proof. IAF1, Tab 12.
Section 1221 provides that if the appellant meets her burden to establish
that prima facie case of whistleblower reprisal, then the Board must order
corrective action unless the agency rebuts that prima facie case by presenting
clear and convincing evidence that it would have taken the same personnel
action(s) in the absence of the disclosure. 5 U.S.C. 1221(e)(1)(2); Whitmore,
680 F.3d at 1364.
Corrective action may include not only reinstatement in a
position, which the appellant already obtained, but also back pay and related
benefits, medical costs incurred, travel expenses, any other reasonable and
foreseeable consequential damages, and compensatory damages.
5 U.S.C.
1221(g)(1). Clear and convincing evidence is that measure or degree of proof

that produces in the mind of the trier of fact a firm belief as to the allegations
sought to be established.
5 C.F.R. 1209.4(d).
Evidence only clearly and
convincingly supports a conclusion when it does so in the aggregate considering

all the pertinent evidence in the record, and despite the evidence that fairly
detracts from that conclusion. Whitmore at 1368.
C. Findings of Fact
To resolve credibility issues, an administrative judge must identify the
factual questions in dispute, summarize the evidence on each disputed question,
state which version he believes, and explain in detail why he found the chosen
version more credible, considering such factors as: (1) the witnesss opportunity
and capacity to observe the event or act in question; (2) the witnesss character;
(3) any prior inconsistent statement by the witness; (4) a witnesss bias, or lack of
bias; (5) the contradiction of the witnesss version of events by other evidence or
its consistency with other evidence; (6) the inherent improbability of the
witnesss version of events; and (7) the witnesss demeanor.
Hillen v.

Exhibit 7, p. 11
11
Department of the Army, 35 M.S.P.R. 453, 458 (1987). 1
Credibility
determinations properly made in one matter may be weighed in determining a

individuals credibility in another matter. Hawkins v. Smithsonian Institution, 73
M.S.P.R. 397, 403-04 (1997).
I find the following facts by preponderant evidence.
1. The appellant established by preponderant evidence that she made
disclosures protected by 5 U.S.C. 2302(b)(8) and engaged in Inspector
General activity protected by 5 U.S.C. 2302(b)(9)(C).
Section 2302(b) protects employees who make disclosures meeting the
criteria of paragraph (8), and protects employees who disclose information to an
Inspector General per paragraph (9)(C). 5 U.S.C. 2302(b)(8), (b)(9)(C).
A (b)(8) disclosure is one that an appellant reasonably believes to evidence
a violation of any law, rule, or regulation; gross mismanagement; a gross waste of
funds; an abuse of authority; or a substantial and specific danger to public health
or safety. 5 U.S.C. 2302(b)(8)(A); Chambers v. Department of the Interior, 515
F.3d 1362, 1367 (Fed. Cir. 2008); Whitmore, 680 F.3d at 1366-67. A reasonable
belief exists if a disinterested observer with knowledge of the essential facts
known to and readily ascertainable by the appellant could reasonably conclude
that the actions of the government evidence one of the categories in section
2302(b)(8)(A). Lachance v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999).
The Board has found that disclosures concerning alleged violations of
federal personnel law and merit systems principles may be protected. McDonnell
v. Department of Agriculture, 108 M.S.P.R. 443, 10-13 (2008) (appellant made
a nonfrivolous allegation that she made a protected disclosure because her alleged
Hearsay evidence is admissible in Board proceedings and may be accepted as

preponderant evidence even without corroboration if, to a reasonable mind, the
circumstances are such as to lend it credence. Social Security Administration v. Long,
113 M.S.P.R. 190, 26 (2010).

Exhibit 7, p. 12
12
disclosure concerned hiring and selection improprieties under 5 U.S.C. 2301
that could have constituted prohibited personnel practices under 5 U.S.C.
2302(b)(6) and (b)(12)). The Board has defined a 5 U.S.C. 2302(b)(8)(A)(i)
rule to include agency policy or operating instructions. Rusin v. Department of
the Treasury, 92 M.S.P.R. 298, 14-19 (2002). Time and attendance abuse is a
violation of law, rule, or regulation. DiGiorgio v. Department of the Navy, 84
M.S.P.R. 6, 14 (1999); Frederick v. Department of Veterans Affairs, 63
M.S.P.R. 563, 570 (1994).
The specific issue under 5 U.S.C. 2302(b)(8) is
whether the appellant reasonably believed that the information she disclosed
evidenced wrongdoing as described by Section 2302(b)(8); the appellant need not
prove the correctness of that belief. Chavez v. Department of Veterans Affairs,
120 M.S.P.R. 285, 18 (2013).
I conclude that all three of the appellants disclosures/activities were
protected by 5 U.S.C. 2302(b)(8) or (b)(9)(C).
a. Activity 1 (Disclosure)
In analyzing this disclosure, I take guidance from the Boards rulings in
Chavez, 120 M.S.P.R. 285. The Board stated that a reasonable belief exists if a
disinterested observer with knowledge of the essential facts known to and readily
ascertainable by the appellant could reasonably conclude that the actions of the
government evidence one of the categories of wrongdoing listed in section
2302(b)(8)(A). Id. at 18. Additionally, an appellant does not need to identify a
statutory or regulatory provision by title or number when the employees
statements and the circumstances surrounding the making of those statements
clearly implicate an identifiable violation of law, rule, or regulation. Id. at 19.
The first alleged disclosure is that on November 29, 2013 at 11:39 a.m., the
appellant sent an email that stated, in pertinent part:
Nonconcur. Why didnt this go out to all services for a submission?
Why are the only new title 5 recommended approvals for PVAHCS
HR employees who coordinated the suspense and oversees the

Exhibit 7, p. 13
13
program? There are other hard to fill title 5/Title 38 positions that
should be considered for this as well. This should go out to all
services for submission and ranked by pentad and/or Director before
submission.
IAF2, Tab 15 at 89 (emphasis added).
In other words, the unit who was
responsible for administering student loan reimbursements appeared to be

receiving a disproportionate amount if not the entirety of the monies that the
agency had set aside for recruitment incentives.
Id. at 88, 90.
Robinson
testified that he perceived the appellant here to be reporting a violation of law,

rule, or regulation, and that he later received feedback from Schloendorn
acknowledging that the agency was not in compliance with SLRP requirements,
which prompted the agency, consistent with an audit that was conducted, to revise
its policies for oversight and administration of the SLRP. HCD, Robinson. The
agency admitted that [t]he appellant determined that the program was not being
administered or managed appropriately by the Human Resources Department
resulting in Mr. Robinson, Associate Director, requesting an audit of the program
by the Compliance Office.
appellants email.
IAF2, Tab 15 at 78.
IAF2, Tab 15 at 88.
Schloendorn received the
Based on these facts, I find that a
disinterested observer with knowledge of the essential facts known to and readily
ascertainable by the appellant could reasonably conclude that HRs use of the
SLRP program for its own staff evidenced a violation of agency policy as well as
an abuse of authority. Chavez, 120 M.S.P.R. 285 at 18. Further, regardless of
the details of the appellants disclosure, I find preponderant evidence that the
appellant was at least perceived by Robinson and Schloendorn to have made a
protected disclosure.
In making that finding, I note that the appellants initial appeal form
described the disclosure in terms of being that she reported to Robinson, by text
and email, her belief that a Student Loan Repayment (SLRP) suspense for FY
2014 Allocation contained a fraud. IAF1, Tab 1 at 5 (emphasis added), Tab 9.
If the appellant told Robinson that the suspense actually contained a fraud, the

Exhibit 7, p. 14
14
evidence of that is not before me, and the evidence that anyone other than
Robinson learned of her fraud allegation is also not before me. However, the
appellants submission of OSCs closure letter reveals that her disclosure was
broader than fraud and encompassed an abuse of the Student Loan Repayment
Program. IAF1, Tab 2 at 6. Further, the email chain related to the suspense
begins on November 19 and it ends on December 2, 2013, and I find that the first
time the appellant expressed her concerns about the program and refused to
concur with an approval, on November 29, 2013, she made a protected disclosure
by pointing out facts that appeared to evidence HRs possible abuse of funds that
were intended for the entire medical center by using it solely for its own staff.
IAF2, Tab 15 at 89. At a minimum I find the appellant was perceived to have
made such a disclosure.
I do not find that the appellants later questions about the same program,
on the same November 29, 2013 date, in emails at 12:31 p.m., 12:35 p.m., 12:46
p.m., and 1:19 p.m., made protected disclosures insofar as they only raised
questions about circumstances in which she might be able to concur with the
approval.
Id. at 85-87 (e.g., If so, I can concur, before I approve).
My
distinction between the 11:39 a.m. email being protected and the later emails not
being protected is based not on the later timing of them, but on the fact that the
earlier, 11:39 a.m. email identified specific facts under which the appellant found
a concurrence not acceptable, while the later emails actually described conditions
under which she might be able to find a concurrence acceptable.
b. Activity 2 (Disclosure)
The second alleged disclosure is that on January 23, 2014, the appellant
reported timekeeping irregularities to Robinson, who forwarded her email to
Schloendorn on January 27, 2014. IAF2, Tab 15 at 94-95. I find the appellants
disclosures contained particularity and disclosed what she reasonably believed
evidenced violations of time and attendance policies. DiGiorgio, 84 M.S.P.R. 6

Exhibit 7, p. 15
15
at 14; Frederick, 63 M.S.P.R. at 570. I assign persuasive value to the Boards
nonprecedential remand order in English v. Small Business Administration, DE1221-15-0090-W-1 (April 8, 2015). The Board found that the English appellant
had a reasonable belief that his disclosure evidenced a violation of law, rule, or
regulation when he disclosed that a coworker came to work late, took extended
lunches, and left early. Id. at 13. The Board reasoned:
Although the appellant did not clearly identify a specific law, rule, or
regulation, he provided sufficiently detailed statements to implicate
an identifiable violation of law, rule, or regulation. See Chavez v.
Department of Veterans Affairs, 120 M.S.P.R. 285, 18 (2013).
Id. at 13.
In making that finding, I note that the appellants initial appeal form
indicated that the disclosure was her report to Robinson that the individual he had
tasked with fact finding into the irregularities had actually approved one of the
timecards in question. IAF1, Tab 1 at 5, Tab 9. In other words, the disclosure
appeared to be centered on a conflict of interest. However, OSCs closure letter
describes the disclosure more broadly to be of time and attendance
irregularities, and that language appears in the subject line of every email sent
on the topic.
IAF1, Tab 2 at 6; IAF2, Tab 15 at 92.
Although I find the
appellants report of time and attendance irregularities were protected and within
the ambit of what she exhausted at OSC, I find her disclosure about a conflict of
interest (1) was of no more than a mere possible future conflict and (2) was not
shown to be transmitted beyond Robinson, who did not retaliate against the
appellant. First, I find no more than a mere possible future conflict of interest.
The email immediately following the appellants January 27, 2014 email is from
Masisak and states, In order to make a determination of next steps as requested,
we will need the employees[] names and all evidence of the issues found. Id.
The appellants subsequent January 28, 2014 email to Robinson states that Joe
[Masisak] was the approving official on the second timecard. Id. I do not find
preponderant evidence that Masisak was yet aware of the possible conflict of

Exhibit 7, p. 16
16
interest of his involvement, and I find no impropriety on his part in attempting to
resolve the timekeeping irregularity. Second, even if the appellants January 28,
2014 email to Robinson were a protected disclosure, there is no evidence that
Masisak, Schloendorn, or anyone else ever learned of the email, and as such, it
was not shown to be a contributing factor to the agencys actions. Thus, the
protected disclosure here is limited to the appellants reports of time and
attendance irregularities.
c. Activity 3 (Inspector General)
Third, the appellant undisputedly provided testimony to the Inspector
General on May 14, 2014 in her office. HCD, Appellant; IAF2, Tab 15 at 79
(agency admission).
Although the appellant testified as to the matters she
brought up during her interview, I find the contents of the interview are not
pertinent because she introduced no evidence that anybody ever learned of the
contents of her interview before the events of May 15, 2014. HCD, Appellant. I
find that her Inspector General testimony was plainly protected by 5 U.S.C.
2302(b)(9)(C).
Importantly, the appellant testified, without dispute, that on
May 12 or 13, 2014, Schloendorn came to her office and told her words to the
effect of Theyre going to get us all for the perceived problems occurring at the
Phoenix office, and that the appellants response was to the effect of Theyre not
going to get me, after which she told Schloendorn that she had unspecified
documentation, opened a drawer so Schloendorn could see the existence of that
documentation, and informed Schloendorn that she was going to be talking to the
Inspector General in the near future. HCD, Appellant. Moreover, as explained
further below, I find corroborating evidence by several witnesses indicating that
Schloendorn was the driving force behind the May 15, 2014 search and securing
of the appellants office. HCD, Daughetee, Nemcek.

Exhibit 7, p. 17
17
2. The appellant established by preponderant evidence that her 2302(b)(8)
protected disclosures and (b)(9)(C) Inspector General activity were a
contributing factor in the agencys actions.
An employee may demonstrate that a (b)(8) disclosure or (b)(9)(C)
Inspector General activity was a contributing factor in a covered personnel action
through circumstantial evidence, such as the acting officials knowledge of the
disclosure and the timing of the personnel action. Nasuti v. Department of State,
120 M.S.P.R. 588, 7 (2014); 5 U.S.C. 1221(e)(1).
Importantly, an appellant may also show that a protected disclosure was a
contributing factor by proving that the official taking the action had constructive
knowledge of the protected disclosure, even if the official lacked actual
knowledge. Id. In Aquino v. Department of Homeland Security, 121 M.S.P.R.
35, (2014), the Board recognized that knowledge of disclosures can be imputed to
proposing and deciding officials under a cats paw theory. Aquino, 121 M.S.P.R.
35 at 21.
In Aquino, the employees supervisor, after learning of his
disclosures, reported to upper-level management his supposed concerns about

the quality of the employees work performance, upon which the agency relied in
proposing and effectuating the employees removal. Id. The Board held that an
appellant can demonstrate that a prohibited animus toward a whistleblower was a
contributing factor in a personnel action by showing by preponderant evidence
that an individual with knowledge of the appellants protected disclosure
influenced the deciding official accused of taking the personnel action. Id. at
23.
The Board ultimately held that the agency failed to show by clear and
convincing evidence that it would have removed the appellant in the absence of
his protected disclosure. Id. at 25-27.
The issue here is whether the appellant has established that her protected
activities were a contributing factor in the agencys detail of her and related
search of her office; if she establishes such contributing factor, then she
establishes her prima facie case of whistleblower reprisal.

Exhibit 7, p. 18
18
a. The appellants two protected disclosures were a contributing factor in
the agencys detail of her and related search of her office.
I find the appellants two protected disclosures, made on November 29,
2013 about the Student Loan Repayment Program, and on January 23, 2014 about
timekeeping irregularities, were a contributing factor in the agencys decision to
detail her from her CFO position from May 15, 2014 and search her office on the
same day. The factor I find connecting the disclosures to the agencys actions is
Schloendorns involvement in the detail and search.
Although it was Acting Medical Center Director Steve Young who made
the ultimate decision to detail the appellant, I find he did so because an
administrative investigation of the appellant was being planned and Schloendorn,
as well as Scherpf and others, advised him that a detail under the circumstances
was appropriate. IAF1, Tab 11 at 34; HCD, Scherpf. Young was not called by
either party as a witness. Likewise, although Network Director Susan Bowers
assembled the Administrative Investigation Board, and Bowers was not called by
either party as a witness, Scherpf testified without dispute that the primary
driving force behind the decision to open an investigation were anonymous
letters against the appellant that he received from Schloendorn, and that Veterans
Integration Service Network 18 (VISN 18) also received anonymous letters about
the appellant. IAF1, Tab 11 at 26-27; HCD, Scherpf. Scherpf testified that he
received the letters from Schloendorn within the previous two weeks of May
15, 2014, without providing further specification as to precisely when
Schloendorn gave him the documents. HCD, Scherpf.
At hearing, the agency asked Scherpf if the documents found from pages 99
through 107 of the appellants prehearing submissions were the four anonymous
letters he received, and he testified that they were.
HCD, Scherpf (adducing
testimony about IAF2, Tab 15 at 99-107). The agency representative remarked at

hearing that page 105 appeared to be a duplicate of page 99, and after the
conclusion of the hearing, I ascertained that this section of pages contained an

Exhibit 7, p. 19
19
additional duplicate at pages 106 through 107, duplicating pages 100 through
101. Id. Also after the conclusion of the hearing, I ascertained that the agency
had previously submitted four similar but with one exception not identical
documents that it contended formed the basis of Bowers decision to convene the
Administrative Investigation Board. IAF1, Tab 11 at 4-5, 9-24. Only exhibit 3 of
the agencys original submissions, a May 8, 2014 anonymous letter about the
appellant, appeared to be identical to any of the four documents that the agency
reviewed with Scherpf at the Board hearing. Compare IAF1, Tab 11 at 19-21 to
IAF2 (agency prehearing submission), Tab 15 at 102-104 (appellant prehearing
submission, reviewed by Scherpf at hearing). However, I find that both sets of
documents in the agencys and the appellants prehearing submissions accuse
the appellant of one form of wrongdoing or another, and that the existence of
additional documents is consistent with the larger context of Scherpfs testimony
that (i) VISN-18 had also received some anonymous complaints about the
appellant and (ii) the agency had also received an allegation of a hostile work
environment from a member of the appellants staff. HCD, Scherpf; IAF1, Tab
11 at 23-24.
At bottom, I find that the appellants two disclosures were a contributing
factor in Youngs decision to detail the appellant and the agencys related
decision to search her office because the detail and related search were based, in
large
part,
on
Schloendorns
recommendations,
while
the
underlying
administrative investigation was based, in large part, on anonymous letters that

Schloendorn provided the agency. Aquino, 121 M.S.P.R. 35 at 21-27.
b. The appellants Inspector General testimony was a contributing factor in
the agencys decision to search her office as part of the detail.
To be clear, I do not find the May 15, 2014 search of the appellants office
constitutes a significant change in working conditions under 5 U.S.C.
2302(a)(2)(A)(xii). However, because I find the agencys search was part and

Exhibit 7, p. 20
20
parcel of its detail, I explain my finding of contributing factor for this component
of the detail here. Cf. Carter v. Department of the Army, 62 M.S.P.R. 393, 408
(1994).
I find no connection between the appellants Inspector General testimony
and the agencys decision to detail her, but I do find a contributing factor
between that testimony and the agencys related decision to search her office.
First, I do not find that the appellants May 14, 2014 Inspector General
testimony was a contributing factor in the agencys May 15, 2014 decision to
detail her, because there is no evidence that anybody learned of that impending
activity until Schloendorn did so on May 12 or 13, 2014, per the appellants own
testimony, and the evidence does not preponderantly establish that any of
Schloendorns involvement in getting the appellant investigated and detailed
occurred after May 12 or 13, 2014. HCD, Appellant. Instead, the only evidence
on timing is that Scherpf received the anonymous letters from Schloendorn
sometime in the two weeks prior to May 15, 2014. HCD, Scherpf. Although that
leaves open the possibility that he received the letters after May 12 or 13, 2014, I
find it more likely that he or at least VISN 18 received at least some of the
letters prior to May 12 or 13, 2014. This finding is consistent with the agencys
documentary evidence indicating that VISN 18 received one of the anonymous
letters on April 13, 2014, another on May 2, 2014, and another on or after May 8,
2014. IAF1, Tab 11 at 4, 10-19.
Second, I do find that the appellants May 14, 2014 Inspector General
testimony along with her prior two disclosures were a contributing factor in
the agencys May 15, 2014 decision to search her office.
In so finding, I
recognize that the evidence is not clear as to whether the appellant told
Schloendorn of the specific date that she was to testify, such that Schloendorn
would have known for certain that the testimony had already been taken by the
time she recommended detailing the appellant.
However, that degree of
specificity is not necessary in light of the Boards holding in Special Counsel v.

Exhibit 7, p. 21
21
Nielson that retaliation for intent to exercise rights protected by 5 U.S.C.
2302(b)(9) is prohibited by the statute.
Nielson, 71 M.S.P.R. 161, 179-80
(1996).
In finding a connection between the appellants May 14, 2014 testimony
and the agencys May 15, 2014 search of her office, I have considered the
following. First, the appellants testimony was unrebutted that after Schloendorn
expressed concern about the agency getting us all, the appellant said that the
agency would not get the appellant because she had evidence to protect her, and
the appellant showed Schloendorn exactly where that evidence was in her office
drawer. HCD, Appellant. Second, that testimony is consistent with Nemceks
July 3, 2014 written statement; Nemcek wrote:
Maria expressed a concern that Tonja had not turned in her keys and
that she still had access to her office and that she may remove, or
have someone else remove documents from her office. Maria began
to explain a prior event that occurred while she was in Ton[j]as
office with Tonja. During this event, Maria explained that Tonja had
informed Maria that she had documents in her filing cabinet as a way
to document things, Maria further explained that Tonja opened up
the filing cabinet to show her where these documents were. After
explaining this event, Maria restated her concern that Tonja may
remove, or have someone else remove documents from her office.
The conversation began to deviate from the discussion of documents
when someone in the office asked about whether or not the acting
supervisors (Ms. Debbie Simon and Ms. Kelli Hagen) had access to
the office in case they needed to access any documents or work
products. It was discussed that they should be able to access the
office to ensure that there was not a disruption of operations. Maria
reexpressed her concern that Tonja had not turned in her keys and
that she still had access to her office and that she may remove, or
have someone else, remove documents from her office. Maria
expressed her concern that Tonja could come in during the night or
over the weekend to remove documents from her office. Maria
specifically mentioned that Tonja may have her assistant, Roz,
remove things for her. After Maria mentioned for the third time her
concern that Tonja would remove, or have someone else remove
these documents, I suggested having the documents that she was
concerned about secured and removed from Tonjas office. Maria

Exhibit 7, p. 22
22
asked who should remove and secure the documents. Joe [Masisak],
Rod [Daughetee], and I all agreed that HRMS should not be involved
with the removal and securing of the documents. Maria then asked if
she should call Chief Scott Neibauer and ask him about removing
and securing the documents.
IAF1, Tab 11 at 54; HCD, Nemcek. Third, Nemcek prepared that statement at the
request of Schloendorn against her interest as an employee of Schloendorns at
the time and Schloendorn is not known to have ever refuted it. IAF1, Tab 11 at
52 (Nemceck wrote that Maria asked me to provide her with a report of
contact of everything that I remembered, because she did remember and that she
was fuzzy on the details). Fourth, Daughetee admitted that Schloendorn made at
least one remark that the appellant has a large quantity of files in her office,
although I found his description of the context of that remark to be somewhat
hard to believe. HCD, Daughetee. Daughetee testified that Schloendorn stated
that the appellant documents judiciously, but when he was asked what he
understood that to imply, he was not helpful. Id. Daughetee testified that he
perceived Schloendorn to simply be trying to make us aware, and stated words
to the effect of, I dont believe we acted on the comment, seemingly implying
that he perceived Schloendorn to want more than a mere transfer of files to the
acting officers so they could do their jobs. Id. However, when Daughetee was
asked why Schloendorn would need to make everybody aware of the
appellants documentation, he answered only, Youd have to ask Maria; it
wasnt my comment. Id.
Fifth, Detective Muellers documentation reported the following occurred
on May 15, 2014:
Daughetee related a complaint was alleged that Laney had kept files
on employees who had filed complaints against Laney and was
currently engaged in a Whistleblower reprisal issue currently
addressed by the VISN 18 staff.
Daughetee related he was tasked to have Laneys office area secured
and examined for files pertaining to her employees.
***

Exhibit 7, p. 23
23
I suggested Hagen, Simon and I examine the office with the
understanding that the scope of the search was for files for
employees.
IAF1, Tab 11 at 38. Based on the context of these remarks about files pertaining
to her employees, I find that Mueller was referring not to work product
necessary for the appellants replacements of Simon and Hagen to perform her
work, but to files that were specific in nature to individual employees and not
related to the appellants everyday job duties.
I have considered Muellers
testimony to the contrary that the purpose of the office search was simply to look
for active work product to enable Simon and Hagen to ascertain their new
responsibilities.
HCD, Mueller.
Observing Mueller testify that his reports
references to files on employees and files for employees was simply a poor
word choice, I did not believe him especially because of his preceding written
statement that there was a concern that Laney had kept files on employees who
had filed complaints against Laney. Id.
Sixth, I have considered the testimony of both Daughetee and Detective
Mueller that Simon and Hagen expressed interest in searching the appellants
office and that it was actually Simon and Hagen that flagged the questionable
items they found.
HCD, Daughetee, Mueller.
Daughetee and Muellers
testimony was contrary to the thrust of Simon and Hagens testimony that (i)
although they wanted to know what was expected of them since that they were
quite suddenly thrown in to substitute for the appellant in her absence; and (ii)
although they recognized the value of seeing what files were in the appellants
office to accomplish that; (iii) they nonetheless did not propose the search, did
not actively flag questionable items, and they conducted the search only under
Muellers guidance and suggestion as to how they conduct a search.
Simon, Hagen.
HCD,
I find it improbable that Simon and Hagen would, upon
unexpected notice that they were substituting for their supervisor, actively
propose and pursue an aggressive search of their supervisors office, and take the

Exhibit 7, p. 24
24
initiative to actively point out items that could be deemed questionable to the
supervising or observing detective. Based on the inherent improbability of that
scenario, as well as the demeanor of all four witnesses, I did not believe
Muellers and Daughetees suggestions that Simon and Hagen took the lead on
the search. Viewing the totality of the evidence, I find that Schloendorn was the
driving force behind getting others to search the appellants office, and that
Daughetee and Mueller unwittingly became the instruments of Schloendorns
desire to retaliate against the appellant.
Because Schloendorn knew that the
appellant was planning to, or had already, spoken with the Inspector General at
the time she instigated the search of the appellants office, I find the appellants
Inspector General activity was a contributing factor to the agencys ultimate
decision to search her office.
D. The agency has failed to establish by clear and convincing evidence that it
would have detailed the appellant and conducted the related search of her
office absent her protected (b)(8) disclosures and (b)(9)(C) activity.
In determining whether an agency has shown by clear and convincing
evidence that it would have taken the same personnel action in the absence of
whistleblowing, the Board will consider the following factors: (1) the strength of
the agencys evidence in support of its action; (2) the existence and strength of
any motive to retaliate on the part of the agency officials who were involved in
the decision; and (3) any evidence that the agency takes similar actions against
employees who are not whistleblowers but who are otherwise similarly situated.
Chambers v. Department of the Interior, 116 M.S.P.R. 17 at 29 (2011); Carr v.
Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999); Whitmore,
680 F.3d at 1365.
I accept that Youngs May 15, 2014 decision to detail the appellant was
because the agency was going to be investigating the appellant for misconduct of
a very serious nature, and keeping her in her office while the agency interviewed

Exhibit 7, p. 25
25
members of her staff would be inappropriate.
IAF1, Tab 11 at 34.
I find
Youngs reason to be an objectively strong reason in light of the allegations with

which the Administrative Investigation Board was going to be dealing. IAF1,
Tab 11 at 26; IAF2, Tab 15 at 372. I find no indication that Young or Scherpf
were aware of the appellants protected disclosures or activity, and Scherpf
denied having any indication that Schloendorn was acting on any bad motive in
bringing the anonymous letters to him. HCD, Scherpf. Additionally, Scherpf
testified generally that the agency has detailed other employees who were under
investigation, although he acknowledged that the decision to detail is not
automatic but is done on a case-by-case basis. Id. I find these circumstances
lend some weight to Carr factor 1, strength of the agencys reasons, and Carr
factor 3, evidence of others who did not blow the whistle but who were subjected
to the same action.
Nonetheless, I do not find that the agency ultimately
presented a specific example for Carr factor 3, i.e., any non-whistleblower who
was detailed and had her office searched.
Notwithstanding my above findings under Carr, I find that most of the
agencys evidence pertaining to Carr factor 1 is quite weak, and that the evidence
pertaining to Carr factor 2 existence of motive to retaliate is quite strong and
outweighs Carr factor 1.
Although I believe that Young and Scherpf acted
innocently in detailing the appellant, I find the cats paw principles set forth in
Aquino make their innocence quite irrelevant to the agencys liability in this case.
Aquino, 121 M.S.P.R. 35 at 21. I find the appellants detail was the result of
the agencys investigation, which was the result of the allegations against the
appellant, which primarily came from Schloendorn. I have considered the fact
that the appellants November 29, 2013 and January 23, 2014 disclosures
implicated Schloendorns office, as well as Pokornys testimony that Schloendorn
had told her that she was really upset about the issue related to the questionable
timecards.
HCD, Pokorny.
I have considered Robinsons testimony that
Schloendorn definitely had problems with the appellants identification of

Exhibit 7, p. 26
26
problems in HR and that the problems produced tension between Schloendorn and
the appellant. HCD, Robinson. I have considered Scherpfs recollection that the
administrative investigation into the appellant was based primarily on anonymous
letters he received from Schloendorn.
HCD, Scherpf.
I have considered
Pokornys testimony that Schloendorn actually told her on earlier occasions that
Schloendorn had submitted anonymous letters at various points about various
individuals and, specific to the appellant, had gotten another section chief to
submit an anonymous letter that accused the appellant of having sex in her office.
I have considered the evidence that Schloendorn had previously conducted her
own fact findings into some of the same supposed allegations, and yet she failed
to disclose that to the Administrative Investigation Board until late into its
process. IAF2, Tab 15 at 373, 375.
I have also considered the somewhat odd fact that, according to Robinson,
when Schloendorn had previously conducted fact findings into the appellant, she
never substantiated an allegation against the appellant. HCD, Robinson. That
fact, viewed in isolation, might tend to show that Schloendorn bore the appellant
no malice. However, I find far more significant the fact that Schloendorn brought
these same matters back to officials higher in the agencys chain of command
without ever disclosing the quite significant fact that she already had previously
investigated the allegations and declared them unsubstantiated. IAF2, Tab 15 at
373, 375 (noting need to interview Schloendorn three times given the numerous
times her name was brought up in the sworn testimonies, where she was the
source of pertinent information); HCD, Robinson (noting that Schloendorn did
not substantiate the claims she investigated).
I have considered the evidence of Schloendorns willingness to retaliate
against employees for other forms of protected activity. First, Pokorny testified
that when she first arrived at Schloendorns office and became her subordinate,
Schloendorn told Pokorny that she wanted her to put one of her employees on a
performance improvement plan because Schloendorn wanted that employee

Exhibit 7, p. 27
27
gone because the employee had filed multiple equal employment opportunity
(EEO) complaints against Schloendorn. Second, by the agencys admission, On
January 21, 2015, the EEOC issued a decision in which Maria Schloendorn was
found to have committed reprisal based on an employees protected activity.
IAF2, Tab 15 at 385.
I have considered the fact that it is somewhat convenient for the appellant
that Pokorny was able to testify that Schloendorn admitted to not only fabricating
evidence about the appellant and others, but also to retaliating against another
employee for EEO activity.
However, I find the evidence of Schloendorns
fabrications is quite consistent with the findings of the Administrative

Investigation Board as well as the EEOC, and under these circumstances, I
believed Pokornys testimony.
I have considered the oddity of both Detective Muellers and Daughetees
testimonies to the extent they attributed (i) the decision to search the appellants
office to Simon and Hagen, and (ii) the discovery of questionable materials to
Simon and Hagens active flagging of them. I found Mueller and Daughetees
testimony to be so contrary to what was most plausible to have happened and to
what Muellers own July 2014 report indicated about the search for employee
files, that I found it difficult to accept Mueller and Daughetees version of events.
In sum, I find far too many deficiencies in the agencys limited evidence to
permit me to conclude that the evidence clearly and convincingly shows that the
agency would have taken the same actions even in the absence of the appellants
whistleblowing and IG activity. Thus, I find the appellant has proven her claims
that her May 14, 2014 detail and related search of her office were reprisal for her
Section 2302(b)(8) protected disclosures and (b)(9)(C) Inspector General activity.
DECISION
I find the agencys detail of the appellant out of her CFO position and
related search of her office was reprisal in violation of 5 U.S.C. 2302(b)(8)

Exhibit 7, p. 28
28
and (b)(9)(C). In accordance with the below parameters, the appellant may file a
motion for initiation of an addendum proceeding on damages, pursuant to the
below provisions.
The full measure of appropriate corrective action will be
determined in the addendum proceeding, if instituted by the appellant.
FOR THE BOARD:
/S/_____________________________
David S. Brooks
Administrative Judge
NOTICE TO PARTIES CONCERNING SETTLEMENT

The date that this initial decision becomes final, which is set forth below, is
the last day that the parties may file a settlement agreement, but the
administrative judge may vacate the initial decision in order to accept such an
agreement into the record after that date. See 5 C.F.R. 1201.112(a)(4).
NOTICE TO APPELLANT
This initial decision will become final on November 18, 2015, unless a
petition for review is filed by that date. This is an important date because it is
usually the last day on which you can file a petition for review with the Board.
However, if you prove that you received this initial decision more than 5 days
after the date of issuance, you may file a petition for review within 30 days after
the date you actually receive the initial decision. If you are represented, the 30day period begins to run upon either your receipt of the initial decision or its
receipt by your representative, whichever comes first. You must establish the
date on which you or your representative received it. The date on which the
initial decision becomes final also controls when you can file a petition for
review with the Court of Appeals. The paragraphs that follow tell you how and
when to file with the Board or the federal court. These instructions are important

Exhibit 7, p. 29
29
because if you wish to file a petition, you must file it within the proper time
period.
BOARD REVIEW
You may request Board review of this initial decision by filing a petition
for review.
If the other party has already filed a timely petition for review, you may
file a cross petition for review. Your petition or cross petition for review must
state your objections to the initial decision, supported by references to applicable
laws, regulations, and the record. You must file it with:
The Clerk of the Board
Merit Systems Protection Board
1615 M Street, NW.
Washington, DC 20419
A petition or cross petition for review may be filed by mail, facsimile (fax),
personal or commercial delivery, or electronic filing. A petition submitted by
electronic filing must comply with the requirements of 5 C.F.R. 1201.14, and
may
only
be
accomplished
at
the
Board's
e-Appeal
website
(https://e-appeal.mspb.gov).
Criteria for Granting a Petition or Cross Petition for Review
Pursuant to 5 C.F.R. 1201.115, the Board normally will consider only
issues raised in a timely filed petition or cross petition for review. Situations in
which the Board may grant a petition or cross petition for review include, but are
not limited to, a showing that:
(a) The initial decision contains erroneous findings of material fact. (1)
Any alleged factual error must be material, meaning of sufficient weight to
warrant an outcome different from that of the initial decision. (2) A petitioner
who alleges that the judge made erroneous findings of material fact must explain
why the challenged factual determination is incorrect and identify specific
evidence in the record that demonstrates the error. In reviewing a claim of an

Exhibit 7, p. 30
30
erroneous finding of fact, the Board will give deference to an administrative
judges credibility determinations when they are based, explicitly or implicitly,
on the observation of the demeanor of witnesses testifying at a hearing.
(b) The initial decision is based on an erroneous interpretation of statute or
regulation or the erroneous application of the law to the facts of the case. The
petitioner must explain how the error affected the outcome of the case.
(c) The judges rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case.
(d) New and material evidence or legal argument is available that, despite
the petitioners due diligence, was not available when the record closed. To
constitute new evidence, the information contained in the documents, not just the
documents themselves, must have been unavailable despite due diligence when
the record closed.
As stated in 5 C.F.R. 1201.114(h), a petition for review, a cross petition
for review, or a response to a petition for review, whether computer generated,
typed, or handwritten, is limited to 30 pages or 7500 words, whichever is less. A
reply to a response to a petition for review is limited to 15 pages or 3750 words,
whichever is less. Computer generated and typed pleadings must use no less than
12 point typeface and 1-inch margins and must be double spaced and only use one
side of a page. The length limitation is exclusive of any table of contents, table of
authorities, attachments, and certificate of service. A request for leave to file a
pleading that exceeds the limitations prescribed in this paragraph must be
received by the Clerk of the Board at least 3 days before the filing deadline. Such
requests must give the reasons for a waiver as well as the desired length of the
pleading and are granted only in exceptional circumstances. The page and word
limits set forth above are maximum limits. Parties are not expected or required to
submit pleadings of the maximum length. Typically, a well-written petition for
review is between 5 and 10 pages long.

Exhibit 7, p. 31
31
If you file a petition or cross petition for review, the Board will obtain the
record in your case from the administrative judge and you should not submit
anything to the Board that is already part of the record. A petition for review
must be filed with the Clerk of the Board no later than the date this initial
decision becomes final, or if this initial decision is received by you or your
representative more than 5 days after the date of issuance, 30 days after the date
you or your representative actually received the initial decision, whichever was
first. If you claim that you and your representative both received this decision
more than 5 days after its issuance, you have the burden to prove to the Board the
earlier date of receipt. You must also show that any delay in receiving the initial
decision was not due to the deliberate evasion of receipt. You may meet your
burden by filing evidence and argument, sworn or under penalty of perjury (see 5
C.F.R. Part 1201, Appendix 4) to support your claim. The date of filing by mail
is determined by the postmark date. The date of filing by fax or by electronic
filing is the date of submission. The date of filing by personal delivery is the
date on which the Board receives the document. The date of filing by commercial
delivery is the date the document was delivered to the commercial delivery
service. Your petition may be rejected and returned to you if you fail to provide
a statement of how you served your petition on the other party. See 5 C.F.R.
1201.4(j). If the petition is filed electronically, the online process itself will
serve the petition on other e-filers. See 5 C.F.R. 1201.14(j)(1).
A cross petition for review must be filed within 25 days after the date of
service of the petition for review.
DAMAGES
The Board may, in a case in which it orders corrective action under 5
U.S.C. 1221 as a result of a prohibited personnel practice described in 5 U.S.C.
2302(b)(8) or 2302(b)(9)(A)(i), (B), (C), or (D), award reasonable and
foreseeable consequential damages, and compensatory damages (including

Exhibit 7, p. 32
32
interest,
reasonable
expert
witness
fees,
and
costs).
U.S.C.
1221(g)(1)(A)(ii). See, e.g., Porter v. Department of the Treasury, 80 M.S.P.R.

606 (1999); Walton v. Department of Agriculture, 78 M.S.P.R. 401 (1998).
Consequential damages may be awarded for pecuniary losses to reimburse
the appellant for specific losses and expenses resulting from the unjustified
retaliatory conduct.
They may include the payment of back pay and related
benefits, medical costs incurred, travel expenses, and any other reasonable and
foreseeable pecuniary losses.
Consequential damage awards do not include
nonpecuniary injuries such as emotional or mental distress.
All compensable
losses must be directly or proximately caused by the retaliatory agency action at

issue.
Consequential damage awards for pecuniary losses are to reimburse a
victim for actual monetary harm and are limited to the losses proven to have been
caused by the retaliatory action. An appellant must submit proof of pecuniary
damages which are quantifiable and usually can be objectively documented.
Compensatory damages may be awarded for all pecuniary losses and some
nonpecuniary losses.
All compensable losses must be directly or proximately
caused by the retaliatory agency action at issue.

Nonpecuniary losses are not subject to precise quantification and include,
but are not necessarily limited to, emotional pain, suffering, inconvenience,
mental anguish, injury to character and reputation, and loss of enjoyment of life.
There are no formulas for determining the amount of nonpecuniary losses, but
such awards should reflect the extent to which the retaliatory act caused the harm
in relation to the extent other factors might also have caused the harm. An award
should also take into consideration the nature, severity, and duration of the harm.
If pecuniary or nonpecuniary damages are claimed, appellant must submit
proof of them. Pecuniary damages are quantifiable and usually can be objectively
documented.
Nonpecuniary damages may be established by documentary
evidence, but also by statements from appellant and others including family

Exhibit 7, p. 33
33
members, friends, health care providers, counselors, or clergy.
Per 5 C.F.R.
1201.204(e)(1), a motion for initiation of an addendum proceeding to decide a

request for consequential, liquidated, or compensatory damages must be filed as
soon as possible after a final decision of the Board but no later than 60 days after
the date on which a decision becomes final. Where the initial decision in the
proceeding on the merits was issued by a judge in a MSPB regional or field
office, the motion must be filed with the regional or field office that issued the
initial decision. Where the decision in the proceeding on the merits was an initial
decision issued by a judge at the Board's headquarters or where the only decision
was a final decision issued by the Board, the motion must be filed with the Clerk
of the Board.
Any such motion must be prepared in accordance with the
provisions of 5 C.F.R. Part 1201, Subpart H, and applicable case law.

NOTICE TO AGENCY/INTERVENOR
The agency or intervenor may file a petition for review of this initial
decision in accordance with the Board's regulations.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit.
The court must receive your request for review no later than 60 calendar
days after the date this initial decision becomes final.
7703(b)(1)(A) (as rev. eff. Dec. 27, 2012).
See 5 U.S.C.
If you choose to file, be very
careful to file on time. The court has held that normally it does not have the
authority to waive this statutory deadline and that filings that do not comply with
the deadline must be dismissed. See Pinat v. Office of Personnel Management,
931 F.2d 1544 (Fed. Cir. 1991).
If you want to request review of this decision concerning your claims of
prohibited personnel practices under 5 U.S.C. 2302(b)(8), (b)(9)(A)(i),

Exhibit 7, p. 34
34
(b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge the Boards
disposition of any other claims of prohibited personnel practices, you may request
review of this decision only after it becomes final by filing in the United States
Court of Appeals for the Federal Circuit or any court of appeals of competent
jurisdiction. The court of appeals must receive your petition for review within 60
days after the date on which this decision becomes final.
See 5 U.S.C.
7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose to file, be very careful
to file on time. You may choose to request review of the Boards decision in the
United States Court of Appeals for the Federal Circuit or any other court of
appeals of competent jurisdiction, but not both. Once you choose to seek review
in one court of appeals, you may be precluded from seeking review in any other
court.
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States
Code,
at
our
website,
http://www.mspb.gov/appeals/uscode/htm.
Additional information about the United States Court of Appeals for the Federal
Circuit is available at the court's website, www.cafc.uscourts.gov. Of particular
relevance is the court's "Guide for Pro Se Petitioners and Appellants," which is
contained within the court's Rules of Practice, and Forms 5, 6, and 11.
Additional information about other courts of appeals can be found at their
respective
websites,
which
can
be
accessed
through
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
If you are interested in securing pro bono representation for your court
appeal, that is, representation at no cost to you, the Federal Circuit Bar
Association may be able to assist you in finding an attorney. To find out more,
please click on this link or paste it into the address bar on your browser:

Exhibit 7, p. 35
35
http://www.fedcirbar.org/olc/pub/LVFC/cpages/misc/govt_bono.jsp
The Merit Systems Protection Board neither endorses the services provided
by any attorney nor warrants that any attorney will accept representation in a
given case.

Exhibit 8, p. 1

Exhibit 8, p. 2

Exhibit 8, p. 3

Exhibit 8, p. 4
DEPARTMENT OF
VETERANS AFFAIRS
Memorandum
Date: July 23, 2014

From: Chair, Interdisciplinary Crisis Response Team (ICRT)
Subj: Administrative Investigation of Alleged Whistleblower Reprisal
To: Michael Culpepper and John Davis
1. You are hereby appointed to investigate the complaint of whistleblower reprisal made
by Paula Pedene, Public Affairs Officer, Phoenix VA Health Care System. Your
investigation will be focused on Ms. Pedenes reprisal complaint rather than the
substance of the underlying whistleblowing allegations themselves.
2. This memorandum authorizes you to inquire into all aspects of the matter described
above, to require VA employees to cooperate with you; to require all employees
having any knowledge of the complaint to furnish testimony under oath or affirmation
without a pledge of confidentiality; to obtain voluntary sworn testimony from other
individuals; to administer oaths and affirmations; and to gather other evidence that
you determine is necessary and relevant. These authorities are delegated for the
purposes and duration of this investigation only.
3. Your investigation shall be conducted and reported in accordance with VA Directive
and Handbook 0700.
4. On-site investigation should begin within ten days of the date of this memorandum.
You shall submit your completed report and investigative file to me within 30 days of
the date of this memorandum unless an extension is granted.
Meghan Flanz
ICRT Chair
Letter to Ms. Paula Stokes, AIB Chairperson

Attachment 1, p. 1

Exhibit 8, p. 5
Department of
Veterans Affairs
Memorandum
Date:
October 30, 2014
From:
Mike Culpepper, Co-Chair, Office of Accountability Review
Subj:
To:
Thru:
Report of Investigation Alleged Whistleblower Reprisal, Phoenix VA Health

Care System
Secretary of Veterans Affairs
Meghan Serwin Flanz, Co-Chair, Office of Accountability Review
Leigh Bradley, Special Counsel
1. Purpose: The purpose of this memo is to provide findings concerning the
subject referral as directed by your appointment memo dated July 23, 2014 (Ex.
1).
2. Scope: The investigation was convened to review the facts and
circumstances surrounding the whistleblower reprisal complaint made by Paula
Pedene, Public Affairs Officer, GS-13, Phoenix VA Health Care System
(PVAHCS). As directed, the investigation focused on Ms. Pedenes reprisal
complaint rather than the substance of the underlying disclosures.
3. Disclosures:
Ms. Pedene testified before an administrative investigation board (AIB) in

May 2011 in connection with multiple allegations of misconduct and
mismanagement involving then Medical Center Director, Gabriel Perez,
then Associate Director, Christopher Bacorn, and a variety of other
1
employees (Ex. 2 and Ex. 2a).
Also in May 2011, Ms. Pedene, at the request of then Interim Medical
Center Director, Dr. James Robbins, submitted written recommendations
to restore staffing, funding, and other resources to the Public Affairs (PA)
reduce Office that she believed had been removed during Mr. Perezs
The AIB report was issued September 23, 2011. The Board substantiated multiple allegations involving Mr.
Perez and Dr. Bacorn, including mismanagement of the fee-basis program and inappropriate behavior. However,
the Board did not find that Ms. Pedene was the victim of a hostile work environment. Specifically with regard to
Ms. Pedenes claims, the AIB found that her allegations (i.e. budget reduction, organizational realignment from
Director to Associate Director, decreased involvement in Veterans Day parade, reduced travel, etc.) were within
the Directors authority to make decisions regarding how the Public Affairs program should operate within the
existing environment of the organization (Ex. 2, p. 8). On November 8, 2011, the VA Office of Inspector
General issued Report No. 11-02280-23 in which it substantiated that PVAHCS mismanaged Non-VA Fee Care
Program funds resulting in a budget shortfall of $11.4 million (Ex. 3).
VA FORM
MAR 1989
2105
Attachment 2, p. 1

Exhibit 8, p. 6
tenure2 (Ex. 4). Mr. Robinson acknowledged during his testimony in an

AIB on July 11, 2013 that Ms. Pedene had repeatedly expressed
concerns about how she had been treated by Mr. Perez and Dr. Bacorn
and he (Mr. Robinson) was familiar with the recommendations she
submitted to restore the PAO function. Mr. Robinson further testified that
it was going to be very difficult for the facility to satisfactorily resolve all
the issues Ms. Pedene raised and his goal was to address what was
needed to get the PAO back on track and move forward (Ex. 5 and Ex.
6h, p. 12, line 12 p. 13, line 13).
In July 2011, Ms. Pedene submitted a memo to the VISN 18 Director in

which she complained that Mr. Bacorn continued to perpetuate the hostile
work environment initiated by Mr. Perez (Ex. 7).
In November 2011, Ms. Pedene submitted a memo to Susan Bowers,

then VISN 18 Director, informing Ms. Bowers about a lack of action in
restoring the PAO function (Ex. 8).3
Subsequently, Ms. Pedene filed an equal employment opportunity

complaint against Ms. Bowers, Dr. Robbins, and then interim Associate
Director, Lance Robinson, for failure to restore the PA function (Ex. 9, p.
100, line 6 p. 101, line 20).4
Ms. Pedene testified that she also informed current PVAHCS Director,
Sharon Helman, in March/April 2012, about the issues that had arisen
under Mr. Perezs leadership and that Mr. Robinson was aware of the
issues since he had previously served as interim Associate Director (Ex.
9, p. 9, line 13 p. 11).
4. Retaliation Allegations Provided by Office of Special Counsel (OSC):

In mid-to-late 2012, Associate Director Lance Robinson reduced Ms.
Pedenes staff and budget and threatened to discipline her when she told Mr.
Robinson that the reason for the reduction was a pretext for retaliation.
On December 10, 2012, Mr. Robinson notified Ms. Pedene that she was
being temporarily reassigned for an initial period of 30 days to Education
Service. The stated reason for the reassignment was a reported computer
2
See Footnote 1 and Ex. 2 showing that the AIB found the PAO staffing and budget reductions were not the
product of a hostile work environment.
3
Office of Special Counsel indicated that Ms. Pedene, along with Dr. Samuel Foote, another PVAHCS
employee, also submitted information to Ms. Bowers in January 2012 concerning financial improprieties and the
hostile work environment and discrimination perpetrated by PVAHCS managers.
4
Ms. Pedene subsequently withdrew the complaint in February 2012. Ms. Pedene alleged during her testimony
that Assistant Director John Scherpf encouraged her to withdraw the complaint (Ex. 9, p. 99, line 13, p. 105, line
7). This issue is discussed in Findings of Fact, paragraph 9 herein.
2
Attachment 2, p. 2

Exhibit 8, p. 7
the Phoenix VA [sic] Parade, into a PowerPoint presentation. Mr. Robinson
conducted an extensive investigation into all aspects of Ms. Pedenes
supervision of the Phoenix PAO, including an audit of all purchases Ms.
Pedenes office staff made going back several years (Ex. 10.)
On November 6, 2013, Mr. Robinson issued Ms. Pedene (who was still on
temporary reassignment to lower graded administrative duties) written notice
of her proposed demotion (Ex. 11 and Ex. 46).5
5. Method of Inquiry: The following employees were interviewed by telephone:6
Susan Hall, Administrative Officer for Mental Health Service, Northern

7
Arizona VA Health Care System, Prescott, AZ
Mary Monet, Privacy Officer
Tonja Laney, Chief Financial Officer
Paula Pedene, Public Affairs Officer
John Scherpf, Assistant Director
Jennifer (Russoniello) Smith, Police Officer8
Sam Trottier, Chief, Patient Operations9
Robin Getzendanner, Program Analyst, Incident Resolution Team, also

responded to a series of written questions and provided documentation
regarding the alleged unauthorized computer access and privacy violations.
Exhibits are identified in a separate listing.
6. Facts Allegation that Associate Director Lance Robinson reduced Ms.
Pedenes staff and budget in mid-to-late 2012 and threatened to discipline her
when she told Mr. Robinson that the reason for the reduction was a pretext for
retaliation.10
a. On August 15, 2012, Ms. Pedene e-mailed Mr. Robinson, noted that she
had lost two positions under the former Director, and requested to speak with
him about getting those positions back. As an option, Ms. Pedene suggested
5
At OSCs request, VA agreed to delay the processing of the proposed demotion until OSC had sufficient time to
review Ms. Pedenes whistleblower retaliation complaint. The retaliation complaint was subsequently resolved
pursuant to a settlement agreement and a decision was never rendered in the proposed demotion.
6
Unless otherwise indicated, all persons interviewed are employed at the PVAHCS. Ms. Pedenes interview was
conducted under oath. Other witness interviews were unsworn.
7
Ms. Hall formerly served as the Administrative Officer, PVAHCS, during the relevant time period.
8
Ms. Smith (formerly Russoniello) previously served as the EEO Program Manager at PVAHCS.
9
Mr. Trottier previously served as the Administrative Officer for Ambulatory Care Service at PVAHCS and was
the certifying official for PAO purchases for six years.
10
Mr. Robinson served as interim Associate Director from October 23, 2011 until February 28, 2012. He was
selected as the permanent Associate Director effective May 6, 2012.
3
Attachment 2, p. 3

Exhibit 8, p. 8
hiring two temporary GS-4 clerks. Mr. Robinson responded that he supported
the concept and recommended that she include her request in her FY 2013
business plan. On the same e-mail string, Ms. Pedene later added that she
also really needed a staff person or contractor on board by September 1,
2012 to assist with the magnitude of the [Veterans Day] parade.11 Mr.
Robinson responded that: We should not be hiring staff for the parade. That
is not a valid reason for using medical support appropriation funding which
this would come out of. After some further discussion, in which Ms. Pedene
identified other general activities supporting patient education in which the
staff assistant would also be involved, Mr. Robinson reiterated his position
that parade support shouldn't be the primary role of the position (Ex. 12).
b. Ms. Pedenes budget request for FY13 was $136,500 representing a 16%
increase from FY12. The amount approved was $96,938 which was the same
as her previous years budget. She also requested three additional full-time
equivalent employees (FTEE) including an Audio Visual Production Specialist
(GS 9/11) and 2 Clerks (GS-4) which were not approved (Ex. 13).
c. Ms. Pedene testified her FY 2013 budget was reduced by $25,000 and
she was not permitted to hire another technical career field (TCF) intern after
the incumbent found another position12 (Ex. 9, p. 43, line 16 - p. 47, line 5; p.
82, lines 10-18). Although Ms. Pedene believes these actions were
retaliatory, she testified she did not communicate her belief to Ms. Helman or
Mr. Robinson (Ex. 9, p. 23, line 19 p. 28, line 5; p. 48, line 17 p. 49, line 5).
d. Ms. Pedene stated the only reason Mr. Robinson provided to her for the
reductions was that the needs of the medical center are many and public
affairs is not a priority (Ex. 9, p. 48, lines 9 16).
e. The approved PAO budget for fiscal years (FY) 2009 - 2013 was:
FY09
FY10
FY11
FY12
FY13
Ex. 14.
155,741
108,18013
102,040
96,938 (initial) 100,362 (final)14
96,938
11
The PVAHCS served as the primary sponsor for the Phoenix Veterans Day parade since 1996. Ms. Pedene
was the coordinator for this event.
12
The Technical Career Field (TCF) program is a two-year training program for participants to develop technical
skills to meet VA's mission critical needs. TCF offers full-time employment positions with national funding to
cover salary, benefits, training and travel associated with the program.
13
The AIB report dated September 23, 2011 found that former Director, Gabriel Perez, had implemented 25%
across the board budget cuts for FY 2010. Consequently, the PAO was not the only program affected by
budget reductions. (See Footnote 1 and Ex. 2, pgs. 9-10.)
14
Ms. Laney explained that the final budget of $100,362 represented additional funds provided to the PAO near
the end of the fiscal year.
4
Attachment 2, p. 4

Exhibit 8, p. 9
f. According to a spreadsheet provided by Ms. Laney, FY 2013 budgets for

some other program areas within PVAHCS also stayed the same as FY 2012
and some were reduced (Ex. 14). Ms. Laney is not aware of any budget
reductions for the PAO for FY 2013.
g. Mr. Trottier, who served as a budget certifying official for PAO for six years,
said his discussion with Ms. Pedene in November 2012 regarding her FY 2013
budget addressed her concern that the requested PAO budget was not
approved. In an e-mail to Ms. Pedene dated November 28, 2012, Mr. Trottier
stated, My control points were also adjusted down as were others so I think
this is possibly a reflection of a bad budget year? At the time, Mr. Trottier
sought to determine what part of Ms. Pedenes requested budget for FY 2013
was disapproved and was told by Fiscal only that it was an executive decision
(Ex. 15 and 15a).
h. Ms. Pedene testified that under former Director John Fears, staffing for the
PAO grew and ultimately included a secretary (GS-6/7), a GS-4 intern position
that was usually filled with two college students working 20 hours per week,
and a GS-9/11 position. According to Ms. Pedene, Mr. Perez reduced both the
intern position and the GS-9/11 position shortly after his arrival in June 2010
15
(Ex. 6g, p. 6, lines 13 -21; Ex. 9, p. 79, line 6 p. 82, line 9;).
i. With regard to why she believes Ms. Helman and Mr. Robinson were
retaliating against her for earlier disclosures involving previous medical center
leadership, Ms. Pedene believes Ms. Helman and Mr. Robinson felt she (Ms.
Pedene) was a threat to them because of the trusted relationships she had
16
built in the community, among patients, and among staff. She also testified
that they (Ms. Helman and Mr. Robinson) probably did not trust her because
she had removed the prior director, was still in contact with Dr. Foote, and
they knew she (Ms. Pedene) would not stand for them doing wrong things to
Veterans or staff (Ex. 9, p. 117, line 19 p. 121, line 9).17
7. Facts Temporary Reassignment and Data Breach Investigation
a. VA Handbook 6500, Appendix D, Department of Veterans Affairs, National
Rules of Behavior, paragraph 2g(8), specifically provides that VA employees
will prevent unauthorized access by another user by logging off or locking any
computer before walking away (Ex. 17).
15
Ms. Pedenes testimony before the AIB did not occur until May 2011.
Ms. Pedene provided a typed document dated December 20, 2013 purportedly prepared by Kathy Sloan,
former Executive Assistant to Ms. Helman, wherein Ms. Sloan states that Ms. Helman made several malicious
remarks about Ms. Pedene. According to the document, Ms. Helman commented that the public affairs program
at Ms. Helmans prior duty station could run circles around Ms. Pedenes program and also referred to Ms.
Pedenes office as a bit of a shrine due to the amount of awards and pictures displayed. (Ex.16).
17
Dr. Sam Foote is a retired VA physician who is a primary whistleblower concerning scheduling and wait-time
issues at PVAHCS.
16

Attachment 2, p. 5

Exhibit 8, p. 10
b. VA Handbook 6500.2, Management of Data Breaches Involving Sensitive

Personal Information (SPI), provides required procedures for VA components
to manage data breaches, including detection, correlation, notification,
remediation, and reporting.
VA defines data breach as the loss, theft, or other unauthorized

access, other than those incidental to the scope of employment, to data
containing sensitive personal information (SPI), in electronic or printed
form that results in the potential compromise of the confidentiality or
integrity of the data.
Unauthorized access is further defined, in pertinent part, as access to

SPI by an unauthorized user, that is, someone who does not have VA
permission to access the information or has not met the requirements
to access the data, such as a background information if required, or
both.
In determining whether VA should notify or offer credit reporting

services to individuals involved in the data breach, the Data Breach
Core Team (DCBT) first determines whether a data breach occurred.
Ex. 18.
c. VA Handbook 5021, Part I, Chapter 1, Paragraph 7b, provides in pertinent
part that ordinarily, the employee will be retained in a pay and active duty
status in his or her position at current grade and salary during any inquiry or
investigation. However, in those instances where it is determined that the
employee's continued presence at his or her worksite during an inquiry or
investigation might pose a threat to the employee or others, result in loss of or
damage to Government property, or otherwise jeopardize legitimate
Government interests, other alternatives may be considered including (a).
Detailing the employee to other duties where he or she is no longer a threat to
safety, to VA's mission, or to Government property; (b). Allowing the employee
to take leave; or (c). As a last resort, placing the employee in a paid non-duty
status pending completion of the inquiry or investigation (Ex. 19).
d. VA Handbook 5005, Part III, Chapter 2, Paragraph 13, provides that a
detail of 30 days or more is considered a formal detail and must be initiated by
a Standard Form (SF) 52, Request for Personnel Action, and forwarded to the
HR Office for processing. Another SF 52 is required to extend or terminate
the detail. Additionally, if the formal detail is from a classified position to an
unclassified position, a brief explanation of the duties will be entered in the
"Remarks space of the SF 52 in lieu of the position identification in the "TO"
column (Ex. 20).

Attachment 2, p. 6

Exhibit 8, p. 11
e. VA Handbook 5013, Part I, Paragraph 10, provides that when an

employee is detailed, a performance plan will be provided for the position to
which he or she is detailed. If the detail lasts for 120 days or more, a
performance rating will be prepared at the conclusion of the detail that
appraises the employees performance while in the temporary position. A
copy of this rating shall be shared with the employee and then forwarded to
the servicing human resources management office or employing organization
for consideration at the end of the appraisal period (Ex. 21).
f. On about January 6, 2012, Ms. Pedene sent an e-mail to approximately 75
members of the Public Relations Society of America (PRSA) to which she
inadvertently attached a mailing list containing the names and addresses of
about 71,467 Veterans.18 Ms. Pedene reported the incident to her supervisor,
Mr. Robinson, then interim Associate Director. Ms. Pedene recalled the
message and after about three months, with the assistance of Ms. Monet,
ultimately obtained confirmation from her colleagues that the e-mail had been
deleted. Based on the facilitys successful mitigation efforts, the National
Security Operations Center (NSOC) categorized this event as a policy
violation rather than a data breach and did not require the facility to notify the
Veterans. No action of any type was taken against Ms. Pedene. Mr.
Robinson concurred that the event was inadvertent and caused by Ms.
Pedenes peripheral vision issues (Ex. 22, FY 2012 sheet; Ex. 6e, p. 15, line 1
p. 21, line 11; Ex. 6h, p. 6, line 21 p. 9, line 11).
g. In late November 2012, Ms. Pedene logged on to a VA computer using her
user name and password and allowed her husband, who was serving as a VA
Volunteer, to upload photographs of the recent Veterans Day parade into a
PowerPoint presentation. Ms. Pedene explained that she had two upcoming
deadlines and had no one else available to upload the photographs (Ex. 9, p.
51, line 15 p. 54, line 7; Ex. 6g, p. 5, line 20 p. 8, line 15). She also stated
she was monitoring her husband by checking on him every 15-20 minutes (Ex.
9, p. 54, lines 4-11).
h. Mr. Scherpf observed Mr. Pedene at the computer, which was located in
the reception area outside the Executive Offices, and notified Mr. Robinson
that Mr. Pedene was working on the computer.19 Mr. Scherpf asked Mr.
Robinson whether Mr. Pedene had a network access code. According to Mr.
Scherpf, Mr. Robinson stated he did not know, so Mr. Scherpf asked whether
he should check with IT to see whether Mr. Pedene was properly logged on to
the computer. Mr. Robinson agreed with that approach and Mr. Scherpf
obtained a usage summary from IT. The usage summary showed that only
Ms. Pedene had logged on to the computer Mr. Pedene had been using (Ex.
6i, p. 3, line 21 p. 9, line 17 and Ex. 5, attchs D and E).
18
Ms. Pedene used the mailing list to distribute a quarterly newsletter.

Mr. Scherpfs verbal statement during the telephonic interview for this inquiry was generally consistent with
his sworn testimony provided to the AIB on June 11, 2013.
19

Attachment 2, p. 7

Exhibit 8, p. 12
i. Mr. Robinson questioned Ms. Pedene about the incident and she
acknowledged that she had allowed her husband access to the computer for
the sole purpose of uploading photos to a PowerPoint presentation which had
been placed on the computer desktop. Ms. Pedene stated that at no time
did her husband have access to other programs. Ms. Pedene testified that
Mr. Robinson told her that You know were not supposed to have people who
do not have computer access on the computer system. Ms. Pedene
acknowledged that she understood, but explained that she (Ms. Pedene) had
been told by her assistant, Laura Templeman, that it was an accepted practice
so long as the user was being monitored.20 Ms. Pedene stated Ms.
Templeman had done this numerous times and had verified this information
with the Privacy Office (Ex 6g, p. 7, lines 5-14; p. 9, lines 2-10 and Ex. 9, p.
54, line 15 p. 55, line 4). According to Ms. Pedene, Mr. Robinson stated
that he considered this a serious offense and Ms. Pedene responded by
saying Do what you have to do, Lance (Ex. 9, p. 54, line 8 p. 55, line 14).
j. Mr. Robinson notified Ms. Monet of this event on December 4, 2012 and
the matter was reported to the NSOC on December 5, 2012. Ms. Monet
informed NSOC that an investigation of the scope and purpose of exposure
would ensue (Ex. 5, attch E).
k. On December 6, 2012 NSOC responded that the incident did not meet the
21
criteria for a data breach and did not require any notifications (Ex. 25). Ms.
Getzendanner, in responding to the teams questions, stated It is against VA
policy to allow someone else on the network, but we did not believe at that
point that an actual data breach occurred (Ex. 26). NSOC also notified the
facility that it could proceed with resolving the event and requesting the event
closed (Ex. 25).22 Ms. Monet responded to NSOC as follows:
This ticket has high breach potential which has not yet been
determined. The facility notification to resolve ticket will be
addressed once the breach potential has been reviewed and
reported. At this time, Pentad member advised that finding
of other person providing same unauthorized access has
20
Ms. Templeman denied making this statement to Ms. Pedene. Conversely Ms. Templeman acknowledged that
she logged non-VA employees on to VA computers, but that she was instructed to do so by Ms. Pedene.
Likewise, Charles Melton, former TCF intern in the PA Office for Ms. Pedene, confirmed Ms. Pedene told him
and Ms. Templeman to allow parade volunteers to use their computer log-ins. (Ex. 23 and Ex. 6j, p. 7, lines 210; p. 12, lines 18-25; See also Ex. 24).
21
The first issue addressed by the DBCT to determine whether notice or credit monitoring should occur is
Could VA SPI have been exposed in a readable or usable form to an unauthorized user or for an unauthorized
purpose, other than incidental to employment, in violation of any of the applicable provisions? If the answer is
no, no further action is required (Ex. 18).
22
Ms. Monet, during her verbal interview, explained that a finding that no data breach occurred does not mean
that unauthorized access in violation of applicable privacy or other computer security regulations, such as the
Rules of Behavior, did not occur.
8
Attachment 2, p. 8

Exhibit 8, p. 13
strong validity to be investigated.23 Access reports will be

requested to determine scope of potential breach.
Ex. 27.
l. On December 7, 2012, Mr. Robinson notified the HR Officer and the
Assistant HR Officer of his findings and that he wished to consider next steps,
including suspension of Ms. Pedenes computer access (Ex. 5, attch D).
m. On December 10, 2012, Mr. Robinson temporarily reassigned Ms. Pedene
to Education Service for an initial period of 30 days.24 Ms. Schloendorn, the
HR Officer, was present when Mr. Robinson issued the reassignment memo
(Ex. 9, p. 58, lines 9-14). The stated reason provided to Ms. Pedene in the
reassignment memo was to investigate serious alleged misconduct; however,
specific allegations were not identified (Ex. 10). Although the detail lasted
more than 180 days, Ms. Pedene never received a memo extending the
detail. According to Ms. Pedene, regional counsel would only indicate that the
investigation was continuing (Ex. 9, p. 58, line 15 p. 59, line 16.)
n. Ms. Pedenes detail to Education Service was not documented with an SF
52 as required by VA Handbook 5005 (Ex. 28). Ms. Pedenes temporary
supervisor, Susan Hall, did provide Ms. Pedene with a list of unclassified
duties to be performed during the detail including the development of three
PVAHCS training policies, coordinating continuing medical education courses
and administrative officers training curriculum, providing assistance with
Talent Management System, and library reception duties (Ex. 29).
o. Ms. Pedene did not receive a performance rating of record from Mr.
Robinson for FY 2013 as required by VA Handbook 5005 (Ex. 28).
p. Ms. Hall stated Mr. Robinson told her that he had told Ms. Pedene not to
perform any PAO duties and consequently, he wanted Ms. Hall to act as a
surrogate for Ms. Pedenes Outlook account to ensure she (Ms. Pedene)
was complying with his instructions (Ex. 30). Ms. Hall stated she did not think
Ms. Pedene was aware of this and she (Ms. Hall) was uncomfortable doing it.
Nevertheless, after Ms. Hall received access to Ms. Pedenes Outlook
account, Ms. Hall indicated that she viewed the messages and did not find
anything indicating Ms. Pedene was performing PAO duties. She stated Mr.
Robinson asked her once whether she had checked on Ms. Pedenes e-mail
and she told him that she had not seen anything. She stated she never
23
The reference to other person refers to Laura Templeman. (See paragraph 7i and footnote 20 herein.)
The term temporary reassignment is not a recognized personnel action. The Office of Personnel
Managements Guide to Processing Personnel Actions, Chapter 14, defines detail as a temporary assignment
to a different position for a specified time when the employee is expected to return to his or her regular duties at
the end of the assignment. Accordingly, Ms. Pedenes temporary reassignment is more accurately identified as a
detail.
9
24
Attachment 2, p. 9

Exhibit 8, p. 14
checked on Ms. Pedenes account again and Mr. Robinson did not raise the
issue any more.25
q. From December 11 December 17, 2013, the facility reported to NSOC
that it had identified Ms. Pedenes husband and staff from another VA facility
as having access to the PVAHCS Facebook account and that their access,
along with Ms. Pedenes, had been terminated. The facility also reported that
multiple photographs of a Veteran inpatient had been placed on the PVAHCS
Facebook page and that a request to Medical Media had been submitted to
determine whether a consent form had been signed.
r. On or about December 17, 2013, the facility appealed the initial DBCT
decision that no breach had occurred and provided the following additional
26
information to NSOC :
Consultation with HR regarding non-facility staff
Administrative access to Facebook account. Contact with
facility, pending. It is now established that this is a Privacy
Incident with exposure of Veteran information including
identification and pictures of medical condition without
consent or authorization on facility's website. The individuals
who had access to do this included one non-VHA individual
and another unknown individual at another VHA facility. It
was determined that the Administrators of facility Facebook
account were found upon routine inspection by VHA Media
Office.
Administrator access to the PVAHCS Facebook account had been

granted to a VA contractor.
Recent PAO email files show one Veterans personal health

information (PHI) was sent to a member of the media without
encryption. No further disclosure was documented.
Other recent emails show an unencrypted email containing PHI of four

Veterans containing their first and last names, telephone numbers,
deceased status and one address was sent to another employee.
Investigation is continuing.
25
Ms. Hall also testified regarding this issue during the facilitys AIB on June 10, 2013 (Ex. 6c, p. 5, line 16 p.
6, line 11.)
26
Ms. Getzendanner stated it is not uncommon for facilities to appeal no breach findings if more information is
later discovered indicating an actual data breach did occur (Ex. 26).
10
Attachment 2, p. 10

Exhibit 8, p. 15
The report concluded that the above findings coupled with the husbands
witnessed computer access indicated PHI exposure to a non-VHA individual.
Scope of exposure is still under investigation.
Ex. 5f, Ex. 27, and Ex. 31.
s. On January 10, 2013, NSOC notified the facility that the DBCT agreed that
these events were more than policy violations and requested additional
information (Ex. 31). Ms. Monet provided the requested information on
January 11, 2013 including information about low volume, unencrypted emails containing PHI/PII being sent and a prior disclosure of a PHI/PII data file
in 2012 (Ex. 5, attch E, pgs. 4-5). On January 15, 2014, the DBCT considered
the additional information and determined that a next of kin letter should be
sent (Ex. 26 and Ex. 32).
t. On January 31, 2013, NSOC notified the facility that this event had been
closed and no data breach had occurred. Ms. Getzendanner informed the
interview team that this notification was incorrect. It appeared to her that the
person who closed out the ticket either did not see the additional information
that had been submitted by the facility or that due to recent holidays, the
information somehow crossed paths. Ms. Getzendanner stated the basis for
the finding that a data breach had occurred was the lack of patient consent for
the Facebook photograph (Ex. 26, Ex. 33).
u. By letter dated March 8, 2013, Ms. Helman notified the family of the
Veteran patient whose photographs were posted on the facility Facebook
page that proper consent had not been obtained from the patient. The letter
further described steps that could be taken to prevent identity theft and
monitor credit reporting (Ex. 34).
v. On April 16, 2014, shortly prior to her transfer from PVAHCS to another VA
facility, Ms. Hall issued Ms. Pedene two documents which purported to be fully
successful performance evaluations for FY 2013 and FY 2014 in connection
with her temporary reassignment to Education Services (Ex. 35).
w. Between January 1, 2012 and September 11, 2014, the PVAHCS Privacy
Officer logged approximately 90 privacy tickets representing reported privacy
27
violations (Ex. 22). The facility was asked whether any of the employees
being investigated for unauthorized access or disclosure were either placed
on authorized absence or detailed to other positions. Other than Ms. Pedene
and another employee identified as a whistleblower in a separate matter, the
27
Primary violation categories included: misuse or mishandling of information; unauthorized access (both
electronic and physical); and missing or stolen equipment. Many of the complaints involved employees allegedly
accessing the medical records of co-workers who were also patients. At least two of the privacy tickets involved
unauthorized patient photographs or video being taken. Several others tickets involved employees allegedly
allowing others to use the employees access code and password to access computers.
11
Attachment 2, p. 11

Exhibit 8, p. 16
facility identified only one person who had been placed on AA or detailed for
similar issues (Ex. 36).
8. Facts: Alleged Misuse of Appropriated Funds
a. Mr. Trottier stated that he did not see any inappropriate purchases or red
flags during the six year period he served as certifying official for the PAO
budget. Nevertheless, in October 2012 his supervisor, Brad Curry, told him
Mr. Robinson wanted to talk to him about Ms. Pedenes budget. Mr. Trottier
stated Mr. Robinson told him Ms. Pedene was having problems with her
budget and he (Mr. Trottier) needed to know she had thrown him (Mr.
Trottier) under the bus. According to Mr. Trottier, Mr. Robinson told him that
Ms. Pedene was terribly unethical and had improperly spent money on the
parade and a local facility award program called the PRIDE program. Mr.
Trottier stated Mr. Robinson told him that he (Mr. Trottier) had been drawn
into the investigation. Mr. Trottier stated that he later had two similar
conversations with Mr. Robinson in December 2012 and February or March of
2013 respectively. Mr. Trottier stated Mr. Robinson used phrases such as the
investigation is taking off and youre going to be called into it and it doesnt
look good for her. Mr. Trottier said his impression was that Mr. Robinson was
trying to portray Ms. Pedene as an unsavory character and was trying to
discredit her. During the last conversation, Mr. Trottier said Mr. Robinson told
him that he (Mr. Robinson) appreciated his help even though Mr. Trottier was
not called as a witness in the subsequent AIB. Mr. Trottier said that Mr. Curry
also told him later that Mr. Robinson really appreciated Mr. Trottiers
professionalism (Ex. 37).28
b. On December 11, 2012, Ms. Laney notified Mr. Robinson via e-mail that a
random audit of the PAO fund control point identified the use of appropriated
funds for the Veterans Day parade that appeared to conflict with guidance
provided in a Regional Counsel (RC) memo dated February 14, 2002.29 She
28
Although unrelated to the specific issues reviewed herein, Mr. Trottier stated that in December 2013 he was
informed that Mr. Curry had been using government vehicles and drivers assigned to the Beneficiary Travel
Section to drive him on campus and to rummage sales. Mr. Trottier said that he reported this apparent misuse of
government vehicles to Mr. Robinson and Mr. Robinson responded by telling him that he (Mr. Trottier) had been
a manager for a long time and needed to know when to keep things to himself because there may come a time
when he (Mr. Trottier) would not want to work for Mr. Curry. Mr. Trottier told Mr. Robinson that he had done
his job and given him the information. According to Mr. Trottier, about two weeks later, Mr. Curry told him that
he knew Mr. Trottier had gone to Mr. Robinson and tried to get him in trouble. Mr. Trottier stated that he
informed the Mobility Manager of these conversations so he would not make the same mistake as Mr. Trottier
and report the alleged misuse.
29
The RC memo provides in pertinent part that the facility can use appropriated funds to pay costs directly
attributable to the participation of its own employees, but cannot pay expenses for the benefit of other
participants. Specifically RC stated that appropriated funds could not be used for items such as fencing, security,
trophies, portable toilets, and similar expenses for conducting the parade; however funds could be used for a VA
float, outreach materials, VA staff to carry out these endeavors, and other reasonable costs of direct VA
participation (Ex. 5, attch B-1).
12
Attachment 2, p. 12

Exhibit 8, p. 17
also identified several allegedly inappropriate purchase card purchases and

indicated the review would be expanded to include all four quarters in 2012.
Lastly, she recommended future purchases be preapproved or alternatively,
suspended until a full review is conducted (Ex. 5, attchs B-1 and L, and Ex.
38).30
c. On December 15, 2012, Mr. Robinson approved Ms. Laneys request to
pre-approve PAO purchases, but did not wish to suspend payments because
several additional invoices would be presented in the future. He also wanted
Ms. Laney to complete her FY 2012 analysis as soon as possible because an
AIB was being conducted sometime after the first of the year and would most
likely include this issue.31 Mr. Robinson also inquired whether there may be
misappropriation in FY 2011 that should be reviewed and suggested that
FQAM or another outside source should look at those issues and provide their
thoughts (Ex. 38).
d. On December 21, 2012, Mr. Robinson notified Ms. Laney that her report
needed more details and requested that she provide him with fiscal rules,
regulations, policies, and ethical standards that may have been violated. He
also stated he had discussed this matter with Ms. Helman and she had
requested that Ms. Laney review all purchases going back to the date of the
32
RC memo dated February 14, 2002 (Ex. 5, attch M, Ex. 39).
e. During the first two weeks of January 2013, Mr. Robinson, Maria
Schloendorn, HR Officer, and Dana Heck, Attorney for Phoenix Regional
Counsel, addressed the issue of whether to refer the alleged inappropriate
purchases to VA Office of Inspector General (OIG) as a criminal issue. Ms.
Schloendorn recommended the matter be referred to OIG if the AIB validated
the charge. Ms. Heck concurred with the referral to OIG if Mr. Robinson
believed the purchases constituted a crime, but opined the facts were more
likely loose enough that the OIG may not be interested in prosecuting (Ex. 40).
f. By memo dated January 16, 2013, Ms. Laney submitted her final audit
findings to Mr. Robinson. The first sentence of the audit report states: As
part of our random review [emphasis added] of Phoenix Health Care System
fund control points, we evaluated FCP 166 which belongs for [sic] Public
Affairs Supplies and Services.33 The report covered FY 2005 FY 2013 and
30
During her interview for this inquiry, Ms. Laney vehemently denied that either Ms. Helman or Mr. Robinson
told her to go after Paula in connection with this audit. Ms. Laney reiterated that Ms. Helman had simply given
her a copy of the RC memo months earlier and asked her to look at the parade when she had time to ensure it was
being handled properly. Ms. Laney stated the timing of the audit was strictly coincidental and that, in her mind,
she was simply performing a fiscal audit.
31
It is presumed Mr. Robinson was referring to an AIB to review the alleged computer security/privacy
allegations.
32
According to Ms. Laney, fiscal records were not available earlier than FY 2005.
33
Although referring to the PAO audit as random in her report, Ms. Laney provided different reasons for
conducting the audit during her interview with the administrative investigation board on June 11, 2013. She
13
Attachment 2, p. 13

Exhibit 8, p. 18
found that many purchases violated appropriations law, VA regulations, and

Phoenix VA procurement policies. Additional purchases were described as
unnecessary and unreasonable. Inappropriate purchases identified in the
report for the eight year period covered in the audit included: $59,606 for the
Veterans Day parade; $989 in personal purchases; $2,344 in membership
fees for professional associations; and $8,574 in graphic design and support
services to an individual who was not a VA vendor and whose business could
not be readily identified (Ex. 5, attch N).34
g. The audit report findings were provided to the VA Office of Inspector
General. OIG notified Mr. Robinson on April 23, 2013 that there was
insufficient evidence to pursue a criminal investigation (Ex. 41, p. 15).
h. By memo dated May 9, 2013, Ms. Helman notified the VISN 18 Director of
her concerns that OIG had not performed a diligent criminal investigation and
requested other resolution options (Ex. 42).35
i. By memo dated May 20, 2013, Ms. Helman convened an AIB to review
whether Ms. Pedene engaged in information security and misappropriation
violations. The Board was chaired by Patricia Craig, HR Manager, Southern
Arizona VA Health Care System. Board members were Gerald Doctor, Chief
Financial Officer, New Mexico VA Health Care System and Ammie Callahan,
Public Affairs Officer, Northern Arizona VA Health Care System. The AIB was
instructed to determine: (1) the validity of the allegations; (2) whether other
employees knowingly allowed the violations to continue; (3) what training and
initially explained that as a new Chief Financial Officer she needed to look at high risk areas and wanted to see
what was going on with the VA parade (Ex. 6d, p. 4, lines 7-17). When asked specifically what made her notice
this particular fund control point, Ms. Laney stated that, shortly after Ms. Helman arrived, she (Ms. Helman)
provided her with a copy of the RC memorandum regarding use of appropriated funds for the Veterans Day
parade and asked her to look into it to ensure regulations were being followed. Ms. Laney also testified that prior
to the audit; a contracting specialist informed her that there might be split purchases in the fund control point
(Ex. 6d, p. 7, lines 3-21). During her interview for the subject inquiry, Ms. Laney added that when she saw the
amount of the PAO budget (around $100,000), she also made a note to herself that she needed to look at the fund
control point. Additionally, during her interview for the subject inquiry, Ms. Laney was asked whether Ms.
Helman or Mr. Robinson asked her to conduct fiscal audits for any other program and she indicated that she was
asked to review the Nursing Education Program. Her report is dated October 9, 2013 and found a lack of clear
processes or internal controls to prevent overpayment of funds and a lack of specific evidential matter (Ex. 43).
Ms. Laney indicated these findings were not as serious as her findings during the PAO audit. Ms. Laney also
stated that the then Associate Director for Patient Care Services immediately asked for assistance in correcting
the Nursing Education findings. Although not sure, Ms. Laney believes one employee was reprimanded based
upon the Nursing Education audit findings.
34
The largest single purchases for the parade included $6,725 in 2005 for a parade balloon in the likeness of
Rosie the Riveter; $17,575 in 2006 for miscellaneous printing to include VA parade envelopes; $5,832 in 2006
for event management assistance to entail database management, Excel charting and graphing, and preparing
volunteers for parade day; and $4,310 in 2009 for a parade balloon in the likeness of a male doctor. Professional
associations included the Public Relations Society of America and the International Association of Business
Communicators. Personal purchases included an iPod docking station, Memorex radio, business cards for Ms.
Pedene, and roses for a co-workers retirement ceremony (Ex. 5, attach N).
35
The memo to the VISN 18 Director did not identify Ms. Pedene by name or position.
14
Attachment 2, p. 14

Exhibit 8, p. 19
instruction had the employee received regarding information security and

financial regulations; (4) what local and national VA policies were violated
regarding the accusations (Ex. 44 appointment memo).
j. By separate memo also dated May 20, 2013, Ms. Helman provided Ms.
Craig, AIB Chairperson, with evidence for the Boards consideration. The
memo specifically stated: Enclosed with this memorandum, you will find
supporting evidence of misconduct by the employee under investigation . . .
The memos second paragraph stated that: The attached evidence indicates
the following accusations may have validity. This memo described the
charges in greater detail than the appointment memo and also listed charges
that were not identified in the appointment memo 36 (Ex 44 evidence memo).
k. The AIB panel submitted its report on July 19, 2013 and concluded that
Ms. Pedene engaged in the following 12 improper actions: (1). Violation of VA
Privacy and Information Security Awareness and Rules of Behavior by
knowingly allowing her assistant to grant computer access to students and
volunteers under her assistants user ID and password; and (2). By granting
access to her (Ms. Pedenes) husband by logging him on under her user ID
and password; (3). Violation of Phoenix VAHCS Policy Memorandum No. 13508, Volunteer Assistance, by allowing her (Ms. Pedenes) husband to perform
37
duties for her as a volunteer ; (4). Granting Barbara Daniels, contractor; and
(5). Bill Pedene permission as administrators for the PVAHCS Facebook
page in violation of VA Directive 6515, Use of Web-based Collaboration
Technologies and PVAHCS Memorandum No. 00PA-01, News Media
Relations; (6). Posting a hospice patients photo without proper consent in
violation of PVAHCS Memorandum No. 00PA-05; (7). Ms. Pedenes e-mail
files show one Veterans PHI without encryption to member of the media; an
unencrypted e-mail containing PHI of 4 Veterans containing first and last
names, telephone numbers, and deceased status; (8). Numerous violations
36
The AIB appointment memo listed the following verbatim charges: A. Information Security Violations: i.
Access to secured VA information and technology systems given to students, interns, volunteers, family
members, contractors, members of Veterans Service Organizations or other parties; ii. Direction of employees or
subordinates to grant access to secured VA systems; iii. Secured VA data exposure; iv. Facility Facebook page
administered by a family member or by an external contractor. 1. Did the non-employees meet VA privacy and
information security requirements; 2. Was a Business Agreement in place; 3. Were there violations of VA
policy or regulation in Facebook postings. B. Insubordination to supervisory staff; C. Lack of candor with
supervisory staff; D. Personal gain from the sale and distribution of Veterans Day Parade photos taken with
government equipment; E. Misuse of government property; F. Misappropriation of government funds: i.
Personal gain from government contracts awarded for the purpose of performing job responsibilities; ii. Were
government funds used to purchase Veterans Canteen Service items for personal use including but not limited to:
ipod docking station, and a large portable stereo system; iii. Did the subject of the investigation direct employees
or subordinates to make alleged purchases; iv. Technical Career Field (TCF) Intern funds redirected to program
operations and management activities. G. Did the subject direct subordinate employees (TCF Intern) to back
date official documents and training records.
37
PVAHCS provides that volunteers may not work with, nor be supervised by, a PVAHCS employee working in
the same section, department, or service, who is a close relative such as a spouse, parent, or sibling (Ex. 5, attch
Q).
15
Attachment 2, p. 15

Exhibit 8, p. 20
of Government Accountability Office (GAO) Appropriations Law Red Book

Volume 1, Chapter 4, pertaining to the use of appropriated funds for
advertising, promotional or propaganda purposes; and (9). payment for PRSA
membership fees in FY 2011 and 2012; (10). Violation of VA Financial Policy
Volume II, Chapter 4 Awards, Ceremonies, Food or Refreshments, Gifts or
Mementos by authorizing items to be given out as incentives and promotional
gifts; (11). Violation of VA Financial Policy Volume XVI Chapter 1 Appendix
A, Government Purchase Card, when she authorized the purchase of a
Memorex Radio in FY2012, two personalized day timer portfolios in FY 2011,
an iPod in FY 2012 and 250 business card holders in FY 2012; and (12).
Failure to properly administer the PAO fund control point (Ex. 44 report).
l. The Board made four recommendations including recommending that the
Director consider taking appropriate action against Ms. Pedene up to and
including removal (Ex. 44 - report).38
m. In August 2013, the Under Secretary for Health requested that both OGC
and the VHA Workforce Management & Consulting Office (WMC) review the
AIB findings and the facilitys intent to propose Ms. Pedenes removal from
federal service. Both reviews were conducted prior to any action being
presented to Ms. Pedene. During its review OGC identified concerns with the
sufficiency of the evidence for several charges and specifically mentioned that
many of the alleged improper purchases were made in connection with earlier
Veterans Day parades and had been supported by previous leadership teams.
Although neither review concluded that the proposed charges warranted
removal, both OGC and WMC found the charges did support suspension or
demotion (Ex. 45).39
n. By memo dated November 5, 2013, Mr. Robinson proposed that Ms.
Pedene be demoted to Staff Assistant, GS-11(Ex. 46).40 WMC case notes
reflect that the proposed demotion memo included all of the previous charges
from the prior proposed removal action instead of only one charge as
discussed. A conference call was conducted with the facility in which the VHA
Chief of Staff indicated that the proposed demotion should be rescinded and
reissued in accordance with the parameters discussed. By this point,
however, Office of Special Counsel had intervened and requested VA hold the
action in abeyance while it investigated Ms. Pedenes claim of whistleblower
retaliation.41 The proposed demotion was not processed further. (Ex. 45
case notes).
38
VA Handbook 0700, Administrative Investigations, paragraph 14h, provides that AIBs shall not recommend a
specific level or type of punishment.
39
OGC separately analyzed each charge and found that two charges were either not supported by the evidence or
did not warrant discipline. Two other charges were only partially supported by the evidence.
40
Ms. Helman designated Dennis Smith, then Director, VA Maryland Health Care System, as the deciding
official for the action. It is not clear why this occurred.
41
Ms. Pedenes response to the charges contained in the proposed demotion is provided in Ex. 11.
16
Attachment 2, p. 16

Exhibit 8, p. 21
9. Facts: Alleged Improper Influence to Withdraw EEO Complaint

a. Ms. Pedene alleged during her testimony that Assistant Director John
Scherpf encouraged her to withdraw an EEO complaint she had filed against
Susan Bowers, then VISN 8 Director, Dr. James Robbins, then interim
Medical Center Director, and Lance Robinson, then interim Associate Director,
for failing to restore staffing and resources to PAO (Ex. 9, p. 99, line 13, p.
105, line 7). She stated Mr. Scherpf contacted her by telephone shortly
before Ms. Helmans arrival in February 2012 and told her she should
consider how she wanted her relationship to be with the new director because
the first thing she (Ms. Helman) will see is an EEO complaint filed by her
Public Affairs Officer. According to Ms. Pedene, Mr. Scherpf asked her if that
is really what she wants to happen.42 After speaking with her advisor that
night who she said advised her against withdrawing the complaint, Ms.
Pedene said she withdrew the complaint the following day (Ex. 47).43
b. On February 6, 2012, Ms. Rusoniello e-mailed Ms. Pedene two possible
dates to mediate her EEO complaint with a mediator assigned from Central
44
Office. In the subsequent e-mail exchange, Ms. Rusoniello reiterated that
Ms. Pedenes request to mediate PAO restoration issues could not occur until
after the new director arrived on February 27, 2012. Ms. Pedene responded
by stating in pertinent part:
All along I have asked to have this resolved PRIOR to new
management coming on board. All this does not appear to
be able to be resolved according to what I hoped, I am
unwilling to move this case to the new director as I believe
this is inappropriate.
I have discussed this with Roger French.
Therefore I am withdrawing my case.
Ex. 47.
42
Per se reprisal occurs when management officials make negative comments or take some other action that
might deter an employee from engaging in EEO activity. Per se reprisal is an automatic violation of Title VII
and does not require evidence of an adverse action.
43
During his interview for this inquiry, Mr. Scherpf denied having this conversation with Ms. Pedene and stated
his only role was as assigned mediator for performance issues; however, Ms. Pedene withdrew her complaint
before the mediation occurred. He noted Mr. Robinson was her supervisor during this time and, if such a
conversation occurred, may have been with him (Ex. 47). Ms. Pedene, when informed of Mr. Scherpfs position,
stated she was certain it was Mr. Scherpf who discussed this with her because Mr. Robinson had already left
Phoenix as interim Associate Director (Ex. 48). Mr. Robinsons e-OPF reflects, however, that his detail to
PVAHCS ended on February 28, 2012 after she had already withdrawn her complaint. See Footnote 10.
44
The EEO complaint consisted of concerns related to Ms. Pedenes performance rating and the issues identified
in Ms. Pedenes restoration memo (Ex. 4). Mr. Scherpf had originally been scheduled to mediate the
performance rating, but did not wish to mediate restoration issues prior to the arrival of the new director.
Consequently, an external mediator was being obtained to address both issues.
17
Attachment 2, p. 17

Exhibit 8, p. 22
c. On February 7, 2012, Ms. Rusoniello forwarded the e-mail chain to Mr.

Scherpf. In her e-mail to Mr. Scherpf, Ms. Russoniello stated:
The below is what I call the squeeze.45 I just had her
determine who, and more importantly, what she really
wanted to address. She made the decision to withdrawal
[sic]. Turns out the who and what were not the same for
her. [Smiley Face] So as soon as she replied to my email I
quickly called ORM and they sent her the Withdrawal
paperwork options. Done!
10. Analysis and Conclusions
For purposes of this review, it is accepted that Ms. Pedenes actions as identified
herein constitute protected whistleblowing activity. Even though the initial
protected disclosure occurred in May 2011 prior to the arrival of Ms. Helman and
Mr. Robinson, both of them were aware of Ms. Pedenes prior whistleblower
activity and her continued efforts to restore staffing and budget reductions she
attributed to that activity. The subsequent personnel actions occurred within a
period of time such that a reasonable person could conclude that Ms. Pedenes
protected activities were a contributing factor. Thus, in order to find that
retaliation did not occur, there must be clear and convincing evidence that the
same actions would have been taken even in the absence of whistleblowing.
Factors to be considered include: (1) strength of the evidence in support of the
personnel action; (2) existence and strength of any motive to retaliate on the part
of Agency officials who were involved in the decision; and (3) any evidence that
the Agency takes similar actions against employees who are not whistleblowers
but who are otherwise similarly situated.
a. Allegation that Associate Director Lance Robinson reduced Ms. Pedenes
staff and budget in mid-to-late 2012 and threatened to discipline her when she
told Mr. Robinson that the reason for the reduction was a pretext for retaliation
This allegation is not sustained. PAO staff and budget reductions occurred under
the prior administration before Ms. Helman or Mr. Robinson arrived. The FY
2013 PAO budget under Ms. Helman and Mr. Robinson was unchanged from FY
2012. Budgets for other programs were also unchanged and some were
reduced. Mr. Robinsons concern with using medical support appropriations to
hire staff to support the Veterans Day parade appears justified and is consistent
with managements interest in focusing on clinic operations. With regard to Mr.
Robinsons alleged threat to discipline her for telling him that the reason for the
45
In her interview for this inquiry, Ms. Smith (formerly Rusoniello) indicated the word squeeze meant she was
attempting to have Ms. Pedene choose whether to mediate the case or move the complaint to the formal stage.
Ms. Smith denied that she attempted in any way to force Ms. Pedene to withdraw her complaint or that anyone,
including Mr. Scherpf, asked her to do so.
18
Attachment 2, p. 18

Exhibit 8, p. 23
reduction was pretext for retaliation, Ms. Pedene testified she did not make this
statement to either Mr. Robinson or Ms. Helman.
b. Temporary Reassignment and Data Breach Investigation
The allegation that Ms. Pedenes whistleblowing activity was a contributing factor
to her detail in Education Service is sustained. Numerous employees alleged to
have been involved in similar computer or privacy violations were not detailed to
other positions. Additionally, neither the original detail nor subsequent extensions
were properly documented in accordance with VA policy. Mr. Robinson also did
not prepare a performance rating for Ms. Pedene while she was on detail as
required. Most significantly, he instructed Ms. Hall to monitor Ms. Pedenes email account without her knowledge to ensure she (Ms. Pedene) was not
performing public affairs duties while on detail. Although Ms. Pedene clearly
violated VA IT security policy and corrective action was warranted, as confirmed
by OGC and VACO HR, her violations do not establish clear and convincing
evidence that Ms. Pedene would have been treated in the same manner in the
absence of whistleblowing. Lastly, it must be noted that Ms. Pedene
inadvertently committed an earlier privacy violation in January 2012 for which she
received no adverse personnel action. This no action arguably militates against
a retaliatory motive, but does not sufficiently overcome the obvious disparate
treatment Ms. Pedene received following the computer incident in December
2012.
c. Alleged Misuse of Appropriated Funds
The allegation that Ms. Pedenes whistleblowing activity was a contributing factor
to the manner in which the fiscal audit and the subsequent administrative
investigation were conducted is sustained. Ms. Laney provided differing
explanations for conducting the audit. Initially stating the audit was random, she
later said she was reviewing high risk areas. When asked during the AIB in
2013 what specifically caused her to identify the PAO fund control point, Ms.
Laney acknowledged that Ms. Helman asked her to conduct the audit to ensure
prior guidance from Regional Counsel was being followed. After some initial
problematic findings were reported, Ms. Helman subsequently asked her to
expand the audit to include the 10 year period from 2002 2012. Such a broad
review of old purchases, which were apparently previously allowed by prior
leadership teams, implies that Ms. Helman was less concerned about ensuring
appropriate fiscal practices were followed and more concerned with obtaining as
much evidence as possible against Ms. Pedene.
The evidence submitted to the AIB at the time it was convened was
accompanied by Ms. Helmans memo describing the information as supporting
evidence of misconduct and indicating the accusations may have validity.
Such statements are highly irregular when seeking an objective, impartial review
and could serve to improperly influence the Board. Similarly, Mr. Robinsons
19

Attachment 2, p. 19

Exhibit 8, p. 24
conversation with Mr. Trottier regarding Ms. Pedenes fiscal practices appears to
be intended to unduly pressure Mr. Trottier to provide adverse testimony about
Ms. Pedene. These actions imply Ms. Helman and Mr. Robinson were seeking a
predetermined outcome and are considered retaliatory.
OGC noted during its review of the proposed removal action that many of the
alleged improper purchases were in connection with the Veterans Day parade
and were apparently supported by prior leadership teams. OGC found two of
the charges were not supportable and two more were only partially supportable.
Ultimately, neither OGC nor VA HR felt the proposed removal action was
supportable and recommended lesser action.
d. Alleged Improper Influence to Withdraw EEO Complaint
This allegation is not sustained. Ms. Pedenes e-mail to the EEO Manager
withdrawing her complaint does not include any hint that she was improperly
influenced to do so. Instead her e-mail states that all along she wanted to have
the matter concluded prior to the new directors arrival. This statement indicates
she held this concern for a lengthy period of time and is inconsistent with her
allegation that she only decided to withdraw the complaint one day after Mr.
Scherpf contacted her by telephone. In any event, Mr. Scherpf denies having
such a conversation with Ms. Pedene and there is no corroborating evidence for
her allegation.
e. Other Conclusion
Ms. Schloendorn, as HR Officer, did not ensure Ms. Pedenes detail was
properly documented or extended. Further, she did not ensure Ms. Pedene
received a performance rating of record for FY 2013. Ms. Schloendorn was
aware of the detail and should have provided better oversight of this action to
ensure it was procedurally handled in accordance with VA policy.
11. Recommendations
a. Appropriate administrative action should be initiated against Ms. Helman
and Mr. Robinson for engaging in retaliatory acts related to Ms. Pedenes detail,
and the manner in which the subsequent investigations regarding alleged
computer violations and misuse of appropriated funds were conducted.
b. Appropriate administrative action should be initiated against Mr. Robinson
for improperly attempting to influence Mr. Trottier in connection with his potential
testimony before an AIB. (See paragraph 8a herein and Ex. 37.)
20

Attachment 2, p. 20

Exhibit 8, p. 25

Attachment 2, p. 21

Exhibit 8, p. 26

DENVER FIELD OFFICE
SHARON HELMAN,
Appellant,
DOCKET NUMBER
DE-0707-15-0091-J-1
v.
AFFAIRS,
Agency.
DATE: December 22, 2014
Debra L. Roth, Esquire, Washington, D.C., for the appellant.

James P. Garay Heelan, Washington, D.C., for the appellant.
Julia H. Perkins, Esquire, Washington, D.C., for the appellant.
Bradley Flippin, Esquire, Nashville, Tennessee, for the agency.
Hansel Cordeiro, Esquire, Washington, D.C., for the agency.
Jeffrey T. Reeder, Esquire, Dallas, Texas, for the agency.
Kimberly Perkins McLeod, Esquire, Washington, D.C., for the agency.
Thomas R. Kennedy, Esquire, Denver, Colorado, for the agency.
BEFORE
Stephen C. Mish
DECISION
On December 1, 2014, the appellant timely filed this appeal challenging the
agencys November 24, 2014 action removing her from her position as the Senior

Attachment 3, p. 1

Exhibit 8, p. 27
2
Executive Service (SES) Director of its Phoenix, Arizona Medical Center, and
from the federal civil service altogether. Appeal File (AF), Tab 1. The Board
has jurisdiction over the appeal pursuant to 38 U.S.C. 713(d)(2)(A).
For the reasons set forth below, the agencys action is AFFIRMED.
Outstanding Ruling
Due to issues with the agencys discovery responses, the parties were
ordered to brief the issue of whether an adverse inference should be drawn
against the agency with regard to those responses. Having considered the parties
arguments, no adverse inference will be drawn against the agency. The shortened
process of 38 U.S.C. 713 is new. Expecting the agency to accomplish in a few
days what normally requires several weeks or more to do correctly is simply not
realistic. 1 By that same token, although as ruled previously, the appellant could
be subject to an adverse inference for not responding to the agencys discovery
requests by invoking the Fifth Amendment right against self-incrimination, she
will not be. She is caught between a Scylla and Charybdis of criminal and civil
processes focused on overlapping events.
Therefore, both parties claims are
decided based on the evidence they adduced to support them.

Findings of Fact
The preponderant evidence of record establishes the following. 2 Over the
course of a decade, the agencys Office of Inspector General (OIG) publicly
reported a variety of concerns with agency medical care facilities across the
country, which included allegations of altered patient appointment lists, and the
As the agency gains more experience in these cases, it may be expected to have a
better system for responding to discovery in place.
2
Record citations are to the pagination applied by the Boards electronic docketing
system.

Attachment 3, p. 2

Exhibit 8, p. 28
3
failure to use electronic wait lists (EWL). (AF, Tab 48, p. 16). Indeed, since
2005, the OIG has issued at least 18 reports identifying deficiencies in scheduling
at the local and national level, (AF, Tab 6, p. 38).
Specifically with respect to Phoenix VA Health Care System (PVAHCS),
on September 2, 2006, the OIG wrote a memorandum to the then-Director
regarding allegations of altered patient wait times and the failure to use the EWL
(AF, Tab 41, p. 165). In it, the OIG concluded that PVAHCS had engaged in an
accepted practice of altering appointments to avoid wait times greater than 30
days in an effort to improve performance measures (Id.).
The appellant was first appointed to the Senior Executive Service in 2007
as the director of an agency facility in Walla Walla, Washington. (AF, Tab 18,
SF-50, p. 35).
She later transferred to Hines, Illinois as the director of the
agencys facility there. (Id. p. 33). On February 26, 2013, the appellant
transferred to Phoenix and became the PVAHCS Director. (Id.). At that point,
her direct supervisor was Veterans Integrated Service Network (VISN) 18
Director Susan Bowers. (AF, Tab 71, Appellants Merits Brief, Bowers Decl. p.
76).
As the SES Director of the PVAHCS, the appellant was responsible for a
wide range of oversight of operations. (AF, Tab 6, Performance Assessment, pp.
24-34). For example, the appellant was generally tasked with broad goals such as
developing an organizational vision, balancing change and continuity, fostering
high ethical standards, and the like. (Id., pp. 25-26). These broad goals were
further fleshed out by more specific directives such as, The SE will increase
high performing inter-professional team-based care to achieve patient-driven
health care and coordination of care across all care settings, both within and
outside VHA.
(Id., p. 28). The appellant was also generally responsible for
leading the staff and, when necessary, holding employees accountable for
appropriate levels of performance and conduct. (Id., p. 25).

Attachment 3, p. 3

Exhibit 8, p. 29
4
Very early on after the appellant moved to Phoenix, likely the evening
before her first official day of work, she spoke with Dr. Katherine Mitchell, who,
at the time, was the Director of the PVAHCS Emergency Department (ED). (AF,
Tab 8, Mitchell Interview; pp. 61-62). During that meeting, Dr. Mitchell reported
to the appellant that the ED was so understaffed and so dangerous that, in her
opinion, it needed to be shut down. (Id., pp. 23, 61-62, 63).
Nevertheless,
according to Dr. Mitchell, the appellant did not follow up with her on the matter,
although, for her part, Dr. Mitchell did not follow up with the appellant, either.
(Id., p. 65). In any event, Dr. Mitchell continued to raise the issue of ED staffing
with others, as reflected in her June 6, 2012 memo to ED Nurse Manager
Catherine Gibson regarding her concerns with the conduct and insufficient skill
level of a particular ED nurse during a busy night. (AF, Tab 7, p. 73).
Not long after the appellant began her position in Phoenix, in or around
March or April of 2012, PVAHCS Public Affairs Officer Paula Pedene briefed
the appellant regarding her allegations of a hostile work environment under the
prior Director, Gabriel Perez. (AF, Tab 10, Pedene Tr., pp. 12, 14). Pedene
informed the appellant of various concerns she had about how Perez had berated
and belittled employees, and how, to her observation, the PVAHCS staff did not
trust him. (Id., 13). The meeting lasted approximately 30-45 minutes. (Id., p.
16).
On December 3, 2012, Dr. James Felicetta, the PVAHCS Chief of
Medicine, administratively reassigned Dr. Mitchell, effective December 10, 2012,
from the ED to the Operation Enduring Freedom, Operation Iraqi Freedom, and
Operation New Dawn Clinic, where she would report directly to Dr. Christopher
Burke. (AF, Tab 7, Felicettas Memorandum, p. 71). According to Dr. Felicetta,
the reassignment was because PVAHCS had identified a greater need for Dr.
Mitchells services in another area, and Dr. Felicetta took the opportunity to
express his sincerest appreciation for Dr. Mitchells hard work, dedication,

Attachment 3, p. 4

Exhibit 8, p. 30
5
and leadership that [she] provided for our veterans in the Emergency
Department. (Id.).
In late November 2012, Pedenes husband, who was an agency volunteer,
not an employee, was observed by a PVAHCS employee working on her
computer and, this employee informed Robinson of his observation. (AF, Tab 11,
Subtab 27, Pedene ROI, p. 70).
By memorandum dated December 10, 2012,
PVAHCS Associate Director Lance Robinson informed Pedene that she was being
temporarily reassigned for an initial period of 30 days to the hospitals Education
Section. (AF, Tab 9, p. 33). Robinsons stated that the reassignment was due to
an allegation of possible misconduct by Pedene, but the misconduct was not
further described (Id.).
On about July 22, 2013, Dr. Mitchell contacted Arizona Senator John
McCains office expressing various concerns about veterans medical care and
recent suicide trends at PVAHCS. (AF, Tab 7, Subtab 11, Mitchell Issue Brief, p.
68; Tab 9, Mitchell Complaint Summary, pp. 8-17). Among other things, Dr.
Mitchell requested that the OIG dispatch an investigative team to conduct a
PVAHCS investigation. (Id.). In response to Dr. Mitchells contact, by letter
dated September 4, 2013, Senator McCains office wrote to agency Deputy
Director of Legislative Affairs, Adam Anicich, and reiterated Dr. Mitchells
request for an out-of-state OIG investigation of PVAHCS regarding a variety of
topics, including the number of suicides since 2010, and the confusing and
confidential nature of the electronic wait list for veterans to be seen by a
physician. (AF, Tab 9, McCain Letter, p. 6).
By memorandum dated September 20, 2013, the appellant placed Dr.
Mitchell on administrative leave pending the outcome of a fact finding
investigation. (AF, Tab 7, Mitchell Leave Memorandum, p. 64). Although not
stated in the memorandum, the reason for the administrative leave and fact
finding is reflected in an October 2, 2013 Issue Brief regarding Dr. Mitchells
alleged inappropriate access to veteran charts (AF, Tab 7, Subtab 11, Mitchell
Attachment 3, p. 5

Exhibit 8, p. 31
6
Issue Brief, p.68).
The focus was Dr. Mitchells 16-page letter to Senator
McCains office regarding medical care issues and recent suicide trends, as well
as Dr. Mitchells request that the OIG dispatch an investigative team to PVAHCS
to conduct an investigation. (Id.).
According to the Issue Brief, Dr. Mitchell
accessed the medical chart without a role based need[.] (Id.). Additionally, on
December 19, 2013, Dr. Burke, Chief of Ambulatory Care, provided Dr. Mitchell
with a written non-disciplinary counseling regarding the fact that Dr. Mitchell
may have disclosed personally identifying health information without following
applicable policy and procedures. (AF, Tab 7, Subtab 10, Mitchell Counseling, p.
66).
According to Dr. Burke, Dr. Mitchell was being counseled for making
disclosures of personally identifying patient information that was outside the

normal functions of her position.
(Id.).
The memorandum counseled Dr.
Mitchell that, in the future, any such disclosure needed to be vetted through the
appropriate agency Privacy Officer first. (Id.).
On April 9, 2014, Congressman Jeff Miller, Chairman of the House
Committee on Veterans Affairs, announced allegations that Veterans were dying
while waiting on secret wait lists to receive care at PVAHCS. (AF, Tab 45, Ex.
bbb, Safety Letter, p. 173).
Thereafter, many politicians took interest in the
operations of the PVAHCS and the appellant, herself. For example, in a letter
dated April 14, 2014, Congressmen David Schweikert, Trent Franks and Matt
Salmon wrote to the appellant directly to express their great concerns with the
indication that, under her leadership, there were secret lists to keep patient wait
times artificially low.
(AF, Tab 35, Ex. s, Schweikert Letter, p. 22).
They
asserted that Because of [her] and [her] leadership teams choices, forty or more
veterans have died due to lack of care. (Id.). The Congressmen called upon the
appellant and other PCAHCS managers to resign. (Id.). On that same date, the
Congressmen also wrote to then-Secretary Eric Shinseki and requested that he
immediately remove the PVAHCS leadership team from their positions. (AF, Tab
35, Ex. t, Schweikert Letter, p. 23).
Attachment 3, p. 6

Exhibit 8, p. 32
7
On May 2, 2014, the appellant and Robinson were both placed on
administrative leave by order of the Secretary. (AF, Tab 35, Exs. w-y, pp. 3436). On May 21, 2014, President Obama announced that he would not stand for
misconduct within the VA health system, and that anyone found to have falsified
records would be held accountable. (AF, Tab 36, Ex. ee, Presidents Statement,
pp. 11-14).
At the same time, however, the President announced the need to
allow the investigators looking in to the matter to gather the facts and get to the
bottom of the situation before making any judgments. (Id.).
Next, on May 28, 2014, the OIG issued an Interim Report regarding
PVAHCS. (AF, Tab 6, Ex. 5, Interim OIG Report, pp. 36-70). The OIG was
asked to investigate various allegations, including gross mismanagement of VA
resources and criminal misconduct by VA senior hospital leadership, creating
systematic patient safety issues and possible wrongful deaths. (Id., p. 38). As
stated in the Interim Report, some of these issues were not new: since 2005 the
agencys OIG had issued 18 reports that identified deficiencies in scheduling at
the local and national level. (Id.).
The OIG Interim Report focused on two issues: (1) Did the facilitys
electronic wait list (EWL) purposely omit the names of veterans waiting for care
and, if so, at whose direction? (2) Were the deaths of any of these veterans
related to delays in care? (Id., p. 39). In terms of conclusions, the Interim Report
substantiated serious conditions and identified 1700 veterans who were waiting
for a primary care appointment but were not on the EWL. (Id., p. 40).
The
Interim Report also concluded that the Phoenix HCS leadership significantly
understated the time new patients waited for their primary care appointment in
their FY 2013 performance appraisal accomplishments, which is one of the
factors considered for awards and salary increases. (Id.). The OIG also found
the use of wait lists at PVAHCS, other than the office EWL, which may have
been basis for allegations regarding the creation of secret lists. (Id.).

Attachment 3, p. 7

Exhibit 8, p. 33
8
Following the release of this interim report, on May 30, 2014, the agencys
Deputy Chief of Staff Hughes Turner proposed the appellants removal. (AF, Tab
18, Subtab 3d, p. 29). The proposal letter included one charge: failure to provide
oversight. (Id.). The specifications were based on the OIG Interim Report. (Id.)
The agency, however, did not make a decision on this proposed removal.
In the meantime, the OIG was still investigating the circumstances at the
PVAHCS and was also examining allegations about the appellant, herself. On
August 26, 2014, the OIG issued its final report. (AF, Tab 6, Ex. 6, Final OIG
Report, pp. 72-214), which reached the following conclusions:
While the case reviews in this report document poor quality of care,
we are unable to conclusively assert that the absence of timely quality care
caused the deaths of these veterans. (Id., p. 77);
The OIG identified numerous veterans who were on unofficial wait
lists, but not on the official EWL. (Id., p. 78);
PVAHCS senior administrative and clinical leadership were aware
of unofficial wait lists and that access delays existed. Timely resolution of these
access problems had not been effectively addressed by PVAHCS senior
administrative and clinical leadership. (Id.);
As a result of using inappropriate scheduling practices, reported
wait times were unreliable, and we could not obtain reasonable assurance that all
veterans seeking care received the care they needed. (Id.);
The emphasis by Ms. Sharon Helman, the Director of PVAHCS, on
her Wildly Important Goal (WIG) effort to improve access to primary care
resulted in a misleading portrayal of veterans access to patient care. Despite
claimed improvements in access measures during fiscal year
(FY) 2013, we
found her accomplishments related to primary care wait times and the third-next
available appointment were inaccurate or unsupported. (Id., p. 79).
The Final OIG Report focused on five questions. (Id., p. 76). First, were
there clinically significant delays in care? On that issue, the OIG concluded that
Attachment 3, p. 8

Exhibit 8, p. 34
9
there were access barriers that adversely affected the quality of primary and
specialty care provided for them. (Id., p. 113). Second, did PVAHCS omit the
names of veterans waiting for care from its Electronic Wait List (EWL)? For that
issue, the OIG concluded as follows: PVAHCS maintained what we determined
to be unofficial wait lists, and used inappropriate scheduling processes, which
delayed veterans access to health care services.
We identified over 3,500
additional veterans who were waiting to be scheduled for appointments. Those

3,500 veterans were not on the EWL as of April 2014; most were on what we
determined to be unofficial wait lists. PVAHCS management was aware of many
of the documents that we identified as unofficial wait lists and that access delays
existed in PVAHCS. Senior PVAHCS administrative and clinical leaders did not
effectively address these access problems. (Id., p. 128). Third, were PVAHCS
personnel following established scheduling procedures? In that respect, the OIG
concluded as follows: that PVAHCS personnel did not always follow established
VHA scheduling practices, and that [s]ome schedulers acknowledged that they
manipulated appointment dates by using prohibited scheduling practices because
of pressure to meet wait time goals imposed by leaders at VHA and PVAHCS;
as a result, reported wait times were unreliable, and the actual wait times were
unknown to key stakeholders. (Id., p. 134). Fourth, did the PVAHCS culture
emphasize goals at the expense of patient care? On that issue, the OIG concluded
as follows: that PVAHCSs emphasis on goals resulted in a misleading portrayal
of veterans access to patient care. Despite Ms. Helmans claims of successful
improvements
in
access
measures
during
FY
2013,
we
found
those
accomplishments were inaccurate and unsupported. (Id., p. 144). Fifth, were

scheduling deficiencies systematic throughout VHA?
On that issue, the OIG
offered recommendations, but there were no formal conclusions. (Id.).

Also during this period following the May 30, 2014 proposed removal, the
agency was conducting internal investigations in to the actions taken against Dr.
Mitchell and Pedene. By memo dated September 16, 2014, Mike Culpepper, of
Attachment 3, p. 9

Exhibit 8, p. 35
10
the agencys Office of Accountability Review, issued a Report of Investigation
regarding Dr. Mitchells allegation that she was subject to whistleblower reprisal.
(AF, Tab 7, Ex. 14, Mitchell ROI, pp. 77-94).
Among other things, the
Culpepper Report of Investigation sustained Dr. Mitchells retaliation claim

against Dr. Deering, Dr. Piatt, and Claflin for allowing staff to persist in their
hostile and insubordinate attitude toward Dr. Mitchell, and their failure to timely
and thoroughly review Dr. Mitchells allegations. (Id., p. 93). This report also
found that Dr. Deering engaged in retaliation by reassigning Dr. Mitchell, even
though it was based on Dr. Deerings stated desire to remove Dr. Mitchell from a
malignant situation in the ED, because that situation developed as a result of
Dr. Mitchells disclosures. (Id., p. 93). The report also concluded that it was
within Dr. Mitchells area of responsibility to report on ways to reduce patient
suicides, such that it was retaliation to issue her written counseling for violating
patient privacy in that respect. (Id., p. 94). The report also sustained a finding of
retaliation with respect to Dr. Mitchells FY 10, 11 and 12 performance ratings,
which included comments regarding delays in scheduling, and adverse
interactions with nursing staff, which went to the core of Dr. Mitchells
disclosures. (Id.). The report recommended administrative action against those
who had retaliated against Dr. Mitchell. (Id.). This report did not include any
express conclusions about the appellant retaliating against Dr. Mitchell, but did
mention the appellants September 2013 decision to place Dr. Mitchell on
administrative leave, which was related to her possible release of patients
information to Senator McCain. (Id., p. 78).
With regard to Pedene, on October 30, 2014, Culpepper issued a second
report regarding Pedenes allegations of whistleblower reprisal. (AF, Tab 11, Ex.
27, Pedene ROI, pp. 64-84). This report concluded that Pedene had been subject
to retaliation regarding her reporting of the prior directors actions.
It
recommended that [a]ppropriate administrative action should be initiated against

Ms. Helman and Mr. Robinson for engaging in retaliatory acts related to Ms.
Attachment 3, p. 10

Exhibit 8, p. 36
11
Pedenes detail, and the manner in which the subsequent investigations regarding
alleged computer violations and misuse of appropriated funds were conducted
(Id., p. 83).
Following the issuance of this report, the agency rescinded the May 30,
2014 proposal notice. (AF, Tab 18, Subtab 3c, Recession Letter, p. 27). By
memorandum titled Pending Action (PAM) dated November 10, 2014, Sloan
Gibson, the Deputy Secretary of Veterans Affairs, notified the appellant he was
proposing to remove her under the provisions of the recently passed Veterans
Access, Choice and Accountability Act of 2014. (AF, Tab 1, PAM, pp. 9-13).
The new removal notice was based on three charges. Id.
The appellant responded to the proposal through counsel. In her November
17, 2014 response, the appellant contended she was being scapegoated for the
PVAHCS situation to protect higher level agency leaders and voiced her belief
that she would be removed to appease various Congresspersons no matter what
she said. (AF, Tab 1, PAM Response, p. 18-19). She also made various legal
arguments as to why the agencys actions toward her were improper and why, on
appeal, it would not be able to prove the charges it brought. (Id.)
On November 24, 2014, Deputy Secretary Gibson sustained his proposal
and removed the appellant from her position and the federal service. (AF, Tab 1,
Removal Letter, pp. 31-33). This appeal followed.
I reserve additional findings for discussion below.
Background Legal Standards
The agency must prove its charged misconduct by preponderant evidence.
See 5 C.F.R. 1210.18(a). That is the degree of proof which is more probable
than not. Blacks Law Dictionary, 1182 (6th ed.)
See also 5 C.F.R.
1201.56(c)(2) (a preponderance of the evidence is that degree of relevant

evidence that a reasonable person, considering the record as a whole, would

Attachment 3, p. 11

Exhibit 8, p. 37
12
accept as sufficient to find that a contested fact is more likely to be true than
untrue).
A misconduct charge typically consists of two parts, a name or label that
generally characterizes the misconduct and a narrative description of the alleged
acts that constitute the misconduct. See Alvarado v. Department of the Air Force,
103 M.S.P.R. 1, 9 (2006) (citing Otero v. U.S. Postal Service, 73 M.S.P.R. 198,
203 (1997)). Where an agency uses general charging language for its label,
language which does not describe the misconduct with particularity, one must
look to the specification to determine what conduct the agency is relying on as
the basis for its proposed disciplinary action. See LaChance v. Merit Systems
Protection Board, 147 F.3d 1367, 1371 (Fed. Cir. 1998). The Board is required
to review the agencys decision on a disciplinary action solely on the grounds
invoked by the agency; it may not substitute a more adequate or proper basis. See
Minor v. U.S. Postal Service, 115 M.S.P.R. 307, 311 (2010); Walker v.
Department of Army, 102 M.S.P.R. 474, 477 (2006); Gottlieb v. Veterans
Administration, 39 M.S.P.R. 606, 609 (1989).
If the agency proves misconduct by the appellant, its chosen penalty is
presumed reasonable and will be upheld unless the appellant adduces
preponderant evidence that the agencys chosen penalty is unreasonable under all
the circumstances of the case. See 5 C.F.R. 1210.18(a), (d); 2 McCormick On
Evidence 342, 344 (7th ed.) If the appellant meets that burden, the agencys
action must be reversed. See 5 C.F.R. 1210.18(a), (d).
With her affirmative defenses, the appellant must prove them by
preponderant evidence. 5 C.F.R. 1210.18(b)(3), (c). With her claim of harmful
error, the appellant must prove there was a law, rule or regulation applicable to
the removal proceedings, the agency did not follow it, and that, if it had been
followed, the agency was likely to have reached a different decision on her
removal. See 5 C.F.R. 1201.56(c)(3), 1210.18(c); Cornelius v. Nutt, 472 U.S.
648, 657-59 (1985) (harmful error is not defined in 5 U.S.C. 7701 and the
Attachment 3, p. 12

Exhibit 8, p. 38
13
Board defines it by regulation). With her claim of denial of due process, the
appellant must prove that the agency did not provide her with a meaningful
opportunity to respond to its proposal notice.
See Stone v. Federal Deposit
Insurance Corporation, 179 F.3d 1368, 1376 (Fed. Cir. 1999).

The agency has proven the appellant engaged in misconduct.
The agency brought three charges of misconduct against the appellant. The
first was styled Lack of Oversight and the agency set out four specifications to
support it.
This is generalized charging language and the specifications
supporting the charge determine what the agency must prove. See LaChance, 147
F.3d at 1371. The first, Specification A, stated, in its entirety:
In report number 14-02603-267, issued on August 26, 2014, the
Department of Veterans Affairs (VA) Office of Inspector General
(OIG) determined that the Phoenix VA Health Care System
(PVAHCS) did not include all Veterans who were waiting to be
scheduled for an appointment on an electronic wait list (EWL).
According to VHA Directive 2010-027, the EWL is the official
wait list for outpatient clinical care appointments and no other
wait lists should be used for tracking requests for outpatient
appointments. As of around April 2014, numerous Veterans were
waiting to be scheduled for an appointment at PVAHCS but were
not on the EWL. As the Director of PVAHCS, you knew or
should have known that PVAHCS was not in compliance with
VHA Directive 2010-027.
(AF, Tab 1, PAM, p. 9).
This specification cannot be sustained because, although it sets forth a state
of affairs at the PVAHCS which the agency found unacceptable, it does not
expressly set forth any particular actions or inactions by the appellant which
could constitute misconduct by her. See LaChance, 147 F.3d at 1371 (we must
look to the specification to determine what conduct the agency is relying on)
(emphasis added). One can be supplied through implication. For example, while
it is not stated in the charge, adding a line to the effect of and you did not
attempt to bring it in to compliance or perhaps you allowed that state of affairs
to persist would set forth something the appellant did or failed to do.
The

Attachment 3, p. 13

Exhibit 8, p. 39
14
problem with expressly adding what is implied, however, is that I would be
guessing at what the agency intended and adding terms to the agencys charge
letter that the agency did not put there itself. 3 Such modification of the agencys
specification at this stage of proceedings is impermissible.
See Minor, 115
M.S.P.R. at 311; Walker, 102 M.S.P.R. at 477; Gottlieb, 39 M.S.P.R. at 609.

More generally, as the Director of the PVAHCS, the appellant was not
personally tasked with doing the day-to-day data entry to place a veteran on the
EWL. (AF, Tab 6, Performance Assessment, pp. 24-34). To the extent an agency
wishes to hold a manager responsible for any failures of his or her subordinates,
i.e., those that occur on his or her watch, it may do so. See, generally, Miller v.
Department of Navy, 11 M.S.P.R. 518, 521 (1982) (A supervisor, by his very
position, may be held accountable for improprieties stemming from the actions of
his subordinates).
However, in order to do so, an agency must identify the
subordinates, show what the subordinates failures were, show why the manager
should have known about them and show that he or she failed to take action to
correct the identified failures. See id. at 519-21. See also Mauro v. Department
of Navy, 35 M.S.P.R. 86, 91-93 (1987) (same). To phrase it more colloquially, an
agency must connect the dots of fault from the identified failure by the
subordinates back up the line to the manager. The agency did not attempt to do
so here. 4 Accordingly, this specification is not sustained.
This omission is made more glaring when Specification A is compared to

Specification B, which also describes an unacceptable state of affairs, but which
explicitly states what the agency contends the appellant failed to do about it but should
have.
4
The agency argues for a different rule of law, one of strict liability, in essence. It
contends, Appellants actual knowledge of the deficiency is immaterial, since the
specification falls under a charge of lack of oversight. Effectively, whether or not
Appellant knew that PVAHCS was not in compliance with the Directive, it was her
responsibility to ensure that the facility was in compliance, and she neglected her duty
to do so. (IAF, Tab 71, p. 12). It cites no authority for such a no-fault proposition, I
am aware of none and I decline to adopt it. Statutes are to be interpreted by starting
Attachment 3, p. 14

Exhibit 8, p. 40
15
The next specification, Specification B, supporting the charge of Lack of
Oversight alleged that:
According to OIG report number 14-02603-267, around October
2012, PVAHCS data management staff identified a backlog of
approximately 2,500 new patient appointments in Primary Care
that were scheduled later than December 1, 2012. Some of these
appointments were scheduled for almost a year in the future.
Despite efforts to reduce the backlog, approximately 544 of the
2,501 Veterans had not received Primary Care appointments as of
March 31, 2014. As of August 26, 2014, approximately 143 of
these patients had still not received a Primary Care appointment.
As the Director of PVAHCS, you knew or should have known that
the backlog for Primary Care appointments could have
jeopardized patient care and safety. Consequently, you should
have taken immediate action to remedy the situation or notified
your senior leadership so they were aware and could assist
PVAHCS.
(AF, Tab 1, PAM, p. 9).
Thus, the agency must prove the appellant either did not take immediate
action to remedy the situation or that she did not notif[y] [her] senior
leadership of it. See LaChance, 147 F.3d at 1371; Chauvin v. Department of the
Navy, 38 F.3d 563, 565 (Fed. Cir. 1994); James v. Department of the Air Force,
73 M.S.P.R. 300, 304 (1997). In support of this specification, the agency relies
almost exclusively on a particular page of the OIG Final Report. (AF, Tab 71,
Agencys Merits Brief, pp. 12-15).
This is permissible.
See Addison v.
Department of Health and Human Services, 46 M.S.P.R. 261, 269 (1990) (While
with the plain meaning of their language. Hawkins v. United States, 469 F.3d 993, 1000
(Fed. Cir. 1996). Section 713 speaks in terms of misconduct. That term is defined in
the statute to mean neglect of duty, malfeasance, or failure to accept a directed
reassignment[.] 38 U.S.C. 713(g)(2). Neglect of duty is not itself specifically
defined, and the common definition of neglect is to give little attention or respect to:
disregard or to leave undone or unattended to esp. through carelessness. MerriamWebsters Collegiate Dictionary, 829 (11th ed. 2003). Thus, even under the agencys
theory of neglect of duty, the agency would have to prove there was something the
appellant was supposed to do, some task or undertaking she was to accomplish, but that
she left undone or disregarded.

Attachment 3, p. 15

Exhibit 8, p. 41
16
it is true that the agency did not introduce the original workpapers on which the
removal action was based, the Board has found that the introduction of such
original sources is not required to sustain an agency action). That portion of the
OIG Final Report recounts that, in October of 2012, approximately eight months
after the appellant started in Phoenix, data management employees of the division
of the agency known as the Health Administration Service (HAS) identified
new patient appointments in Primary Care that were scheduled later than
December 1, 2012. (AF, Tab 6, Subtab 6, Final OIG Report, p. 120). According
to the OIG report, [s]ome of these appointments were scheduled for almost a
year in the future and these delayed appointments represented a backlog of
2,501 appointments. (Id.). The report states that [t]he goal at the time was to
divide that backlog of new patient appointments up among the primary care
providers available and get them earlier appointments. (Id.). According to the
report, HAS staff distributed these waiting patients among 43 providers, 28 of the
providers at the main Phoenix facility with the remainder at external agency
clinics. (Id.). As set forth in the report, [d]espite the effort to redistribute the
veterans to other providers with the intent of getting an earlier appointment, we
determined 544 of the 2,501 veterans had not received Primary Care
appointments as of March 31, 2014. (Id.). The OIG report then recounts that its
investigators went through the electronic health records of 200 of the 544
veterans who had still not had an appointment by that time. Id. Of that 200, 143
were still waiting to be seen, with the remainder no longer needing an
appointment for various reasons ranging from moving out of the Phoenix area all
the way to the death of the waiting patient. (Id.).
The appellant challenges the overall accuracy of the report, beginning with
the fact she was not interviewed by the OIGs investigators for it. She does not,
however, take specific issue with the accuracy of the numbers contained in this
section of the OIG report. Rather, she contends that this specification should
fail because: 1) Ms. Helmans team did make significant, effective efforts to
Attachment 3, p. 16

Exhibit 8, p. 42
17
reduce the primary care backlog, as described in the text of the specification; 2)
those aware of the actual circumstances at the Phoenix VA knew the backlog
could not have been immediately eliminated; and 3) the Phoenix VA backlog
was well known to senior Agency leadership at both the VISN 18 and VACO
levels. (AF, Tab 70, Appellants Merits Brief, p. 40).
The agency has not proven the appellant failed to take immediate action to
remedy the situation[.] As set forth in the very same paragraphs of the OIG
Final Report on which the agency relies, a plan was instituted at the time to
divide these backlogged patients up among primary care providers to get them in
sooner, and this was, in fact, done, with each provider getting approximately 67
of these patients. (AF, Tab 6, Subtab 6, Final OIG Report, p. 120). The remedy
was not fully effective, such that each and every one of these veterans had been
seen by March 31, 2014 upon the OIGs follow up, but the vast majority had
been. This specification does not assert that the appellant should have seen to it
that all of these patients were seen before March 31, 2014 but did not, although it
could have been written that way had the agency chosen to do so. Again, the
agency must prove specifically what it charges, and I may not modify its
language for it. See Minor, 115 M.S.P.R. at 311; Walker, 102 M.S.P.R. at 477;
Gottlieb, 39 M.S.P.R. at 609.
See also Parbs v. U.S. Postal Service, 107
M.S.P.R. 559, 564 (2007) (the agency is required to prove the charge as it is set
out in the notice of proposed removal, however, not some other offense that
might be sustainable by the facts of the case).
Charge 1, Specification B, also alleges, in the alternative, that the appellant
did not notif[y] [her] senior leadership about this 2,501 patient backlog in
primary care. 5 With this second prong of Specification B, the appellant takes
It is unclear what specific persons or offices the term senior leadership is meant to
encompass. Perhaps that is by design, perhaps not. As will be explained below, failure
to identify them and submit evidence from them about whether or not the appellant
Attachment 3, p. 17

Exhibit 8, p. 43
18
issue with the implication that the agencys senior leadership was unaware of
problems with getting all veterans who put in for appointments and needed to be
seen actually seen.
The agency concedes, through the declaration of Barbara
Schuster, Associate Director of the Veterans Health Administration Access and

Clinical Administration Program, that VHA was aware of pockets of
scheduling issues occurring sporadically throughout the nation[.] (AF, Tab 71,
Schuster Declaration, p. 50). I find it more likely than not that at least some
senior agency leaders were aware, or should have been, of nationwide problems
getting veterans scheduled for timely appointments at or around the times of the
events described in this specification, and that the agencys Phoenix facilities, as
a part of the nationwide system, also had those problems. (AF, Tab 70, Petzel
Affidavit, p. 74; Bowers Declaration, pp. 76-80).
Nevertheless, the implied
assertion that senior leaders were unaware of that problem and would have
provided help had they only known is not something the agency needs to prove in
order to sustain this specification.
It is a description of surrounding
circumstances, accurate or not, for the appellants alleged failure to notify, which
is the misconduct at issue. See Larry v. Department of Justice, 76 M.S.P.R. 348,
355 (1997); Lawton v. Department of Veterans Affairs, 53 M.S.P.R. 153, 156
(1992).
In reviewing the evidence for this specification, I am mindful that the
appellant does not need to disprove the charges against her.
Cf. Jackson v.
Veterans Administration, 768 F.2d 1325, 1329 (Fed. Cir. 1985) (the agency [is]
in the position of a plaintiff bearing the burden of first coming forward with
evidence to establish the fact of misconduct, the burden of proof, and the ultimate
burden of persuasion, with respect to the basis for the charge or charges. The
employee (while denominated appellant) has the advantageous evidentiary
informed them of the October 2012 2,501 patient backlog does not redound to the
agencys advantage.

Attachment 3, p. 18

Exhibit 8, p. 44
19
position of a defendant with respect to that aspect of the case).
This
specification sets forth two particular actions the appellant is alleged not to have
done with regard to a particular set of circumstances and refers the reader to the
Final OIG Report detailing those circumstances. An agency may rely on a failure
to deny specific, detailed charges as part of its proof. See Berkner v. Department
of Commerce, 116 M.S.P.R. 277, 279, 285 (2011) (an appellants failure to deny
specific allegations was considered in determining whether an agency had met its
burden); Bixby v. U.S. Dept. of Agriculture, 24 M.S.P.R. 13, 19 & n.4 (1984)
(same); Duncan v. U.S. Dept. of Educ., 15 M.S.P.R. 31, 32 n.2 (1983) (same). A
failure to deny detailed charges is not, however, sufficient by itself. Delancy v.
U.S. Postal Service, 88 M.S.P.R. 129, 133 (2001) (where the letter of charges is
not merely conclusory, but sets forth in great factual detail the employees errors
and deficiencies, and where the notice is corroborated by other evidence, the
letter of charge may be considered as forming part of the agencys valid proof)
(emphasis original).
In none of her own statements, or those of her attorneys made on her
behalf, at any point after she received the agencys PAM, or even the first,
rescinded proposed removal, does the appellant assert that she did alert someone
above her about the 2,501 veteran backlog for primary care appointments
revealed in October 2012. (AF, Tab 1, Appellants Response to PAM; Tab 40,
Ex. ww, Appellants Response to Proposed Removal; Tab 70, Appellants Merits
Brief; Tab 72, Appellants Response Brief).
Although she submitted a
declaration from her immediate superior, Susan Bowers, in which Bowers attests
that she regularly worked with and had many conversations with Ms. Helman
about what and how VISN 18 officials would assist PVAHCS to improve the
scheduling process, and thus decrease the backlog of veteran clients waiting for
appointments[,] at no point does Bowers aver that the appellant ever raised the
issue of the October 2012 2,501 veteran backlog with her.
(AF, Tab 71,
Appellants Merits Brief, Bowers Decl. p. 76).

Attachment 3, p. 19

Exhibit 8, p. 45
20
The question then becomes, what other proof has the agency offered to
establish the appellant did not notify senior leadership about this backlog. See
Delancy, 88 M.S.P.R. at 133. Based on how the agency framed this specification,
it must prove a negative, that senior leadership was not notified about this
October 2012 backlog by the appellant. Absent an admission by the appellant,
which she has not offered, to prove the lack of notification, the agency would
have to adduce affidavits from whatever real persons comprised senior
leadership at the time saying, She did not notify me about that. It has not
done so. I conclude that a detailed proposal which is not specifically denied is,
without more, too slender a reed to constitute preponderant evidence. See
Delancy, 88 M.S.P.R. at 133. This specification is not sustained.
The penultimate specification for this charge, Specification C, alleges:
On or around June 6, 2012, Dr. Katherine Mitchell, then Director
of the PVAHCS Emergency Department, sent a report of contact
to Catherine Gibson, Nurse Manager for the Emergency
Department. In this report of contact, Dr. Mitchell disclosed that
certain nurses in the Emergency Department lacked triage skills
and were being insubordinate. On or around December 3, 2012,
Dr. Mitchell was reassigned as Director of the Emergency
Department to a position as Director of the Post-Deployment
Clinic. Dr. Mitchells reassignment was directed by Dr. James
Felicetta, PVAHCS Chief of Medicine, who reported to Dr.
Darren Deering, PVAHCS Chief of Staff. Dr. Deering was your
direct subordinate. You knew or should have known that Dr.
Mitchells reassignment could be perceived as retaliation for her
disclosures. You should have intervened in Dr. Felicettas
decision to reassign Dr. Mitchell.
(AF, Tab 1, PAM, p. 10).
To start, although this specification refers to a disclosure made by Dr.
Mitchell on or about June 6, 2012 to ED Nurse Manager Gibson, in its merits
brief, the agency does not even mention this disclosure but instead relies on a
disclosure made by Dr. Mitchell directly to the appellant in February 2012. (AF,
Tab 1, PAM, pp. 9-11; Tab 71, Agencys Merits Brief, pp. 15-19).
That

Attachment 3, p. 20

Exhibit 8, p. 46
21
purported disclosure is nowhere referred to in the PAM, even in passing. (AF,
Tab 1, PAM, pp. 9-12). The agency cannot charge the appellant knew or should
have known that failing to stop the reassignment of Dr. Mitchell could have been
perceived as retaliation because of one set of events, those which flow from Dr.
Mitchells June 6, 2012 report of contact to Gibson, and then attempt to prove
now she should have known that because of an entirely different set of uncharged
events. See LaChance, 147 F.3d at 1372 (The principle underlying [King v.]
Nazelrod [43 F.3d 663 (Fed. Cir. 1994)] is that the agency must prove what it
charges; where the specification contains the only meaningful description of the
charge, Nazelrod supports the Boards conclusion that the agency must prove
what it has alleged in the specification) (emphasis added); Alvarado v.
Department of Air Force, 103 M.S.P.R. 1, 7 (2006) (we are bound to decide this
case according to how the charge is written, not how it could or should have been
written). Having identified no evidence in its merits or rebuttal briefs about the
June 6, 2012 disclosure and what the appellant should have known about that, this
specification is not sustained.
Finally, Specification D of Charge 1 alleges:
Between May 2011 and April 2012, PVAHCS Public Affairs
Specialist Paula Pedene cooperated with an administrative
investigation concerning PVAHCS leadership and made numerous
disclosures to PVAHCS leadership about staffing and resources
and experiencing a hostile work environment. Ms. Pedene also
made a disclosure to Veterans Integrated Service Network 18
about PVAHCS leadership failing to restore certain public affairs
functions. On or about December 10, 2012, PVAHCS Associate
Director Lance Robinson, your direct subordinate, reassigned Ms.
Pedene to the Education Service pending an investigation into an
alleged computer security breach. Numerous other PVAHCS
employees who may have committed computer security breaches
were not reassigned.
You knew or should have known that Ms. Pedene had made
disclosures to PVAHCS leadership. You knew or should have
known that Ms. Pedenes reassignment could be perceived as

Attachment 3, p. 21

Exhibit 8, p. 47
22
retaliation for her disclosures. You should have intervened in Mr.
Robinson's decision to reassign Ms. Pedene.
(AF, Tab 1, PAM, p. 10).
In support of this specification, the agency begins with a May 10, 2011
memorandum from Pedene to the Medical Center Director in Phoenix at the time,
and the Associate Director, as well.
Memorandum, Subtab 21, pp. 25-28).
(AF, Tab 9, Pedene Public Affairs

Its subject was Public Affairs
Recommendations. (Id.) In it, Pedene requested realignment of the reporting

structure in Phoenix so that the Public Affairs Officer reported directly to the
Medical Center Director. (Id.) She also requests restoration of $50,000.00 for
production of an agency television show, To Your Health, restoration of
contractual support for PR writers and replacement of a position in Public
Affairs with an Audio Visual Production Specialist. (Id.)
Pedene posits that
[t]he funding for the PR writer function will assist with news releases, fact
sheets, media advisories and the like which have all declined without the
contractual support.
(Id.)
She also asks that the Public Affairs Officer be
empowered to Take action to raise the publics awareness of VHAs willingness

to accept gifts and the productive use of GPF gifts; and, Communicate VHA gift
needs to potential donors for Parade and Community Outreach in accordance
with VHA Directive 4721. (Id.)
She asserts that this authority would allow
the PAO to make the community aware of parade and community outreach needs
that extend beyond the facilities current budget allocations. (Id.) Pedene also
requested restoration of support of the VA Veterans Day Parade Committee and
activities surrounding this VA Regional Event[.] (Id.) Pedene then lists several
other suggested changes and empowerments for the public affairs function. (Id.)
She concludes the substance of the memorandum by noting [e]very item listed in
this memo had been in place and has been systematically removed during the past
two years[,] and that, Public Relations should be granted at least 1/10 th of 1%

Attachment 3, p. 22

Exhibit 8, p. 48
23
of the company's overall operating budget for a standard program. For us that
means $460,000. The current PR budget is $258,000 including salaries. (Id.)
The agency, however, has mischaracterized this memorandum. The agency
states On May 10, 2011, Paula Pedene, the Public Affairs Officer for PVAHCS,
submitted a memorandum to Appellant through PVAHCSs Associate Director
Lance Robinson requesting, among other things, a restructuring of PVACHSs
public affairs strategy and additional funding. (AF, Tab 71, Agencys Merits
Brief, p. 19). By the agencys own admission, the appellant did not start her
employment at the PVAHCS until February 26, 2012. (AF, Tab 71, Agencys
Merits Brief, p. 4) (Appellant was employed as the Director of the Phoenix VA
Health Care System (PVAHCS) from February 26, 2012 to November 24, 2014
citing Tab 18, SF-50s, pp. 23 & 33). The agency does not explain why this
memorandum would have been sent to the appellant approximately nine months
before she began to work there, and I find it more likely than not that it was not.
Moreover, although it is not completely clear when Robinsons tenure as an
Assistant Director in Phoenix began, for reasons discussed below I find it more
likely than not it was after this May 10, 2011 memorandum was written.
Before writing this memorandum, on May 5, 2011, Pedene was interviewed
by members of an agency Administrative Investigation Board looking in to
matters involving fee basis, sexual harassment, and hostile work environment at
the VA Medical Center in Phoenix, Arizona. (AF, Tab 11, Pedene Interview
Transcript, Subtab 26, p. 5). She had previously provided some documentation to
this board. (Id.) Pedenes interview centered on actions taken over the previous
two years by the director who preceded the appellant in Phoenix, Perez, and an
Assistant Director, a Dr. Bacorn, who directly supervised Pedene.
(Id., pp. 3-
60).
Next, the agency points to a memorandum dated July 8, 2011, from Pedene
to the VISN 18 Director, to be routed through the Phoenix Medical Center
Director.
The agency avers, On July 8, 2011, in a message sent through

Attachment 3, p. 23

Exhibit 8, p. 49
24
Appellant to the Network Director for Veterans Integrated Service Network
(VISN) 18, Ms. Pedene noted that she was facing a hostile work environment
because of PVAHCSs Associate Director Robinson, a direct subordinate of
Appellant, when the Associate Director tried to divest Ms. Pedene of the
responsibility of coordinating the annual Veterans Day Parade.
(AF, Tab 71,
Agencys Merits Brief, p. 19). This, as with the May 10, 2011 memorandum, is
simply a misrepresentation of the facts of this case. 6 The appellant did not begin
her tenure as the Medical Center Director in Phoenix until February 26, 2012. As
such, I find the memorandum was not routed through the appellant as she had not
yet begun her employment in Phoenix.
mentions Robinson at all.
Furthermore, the memorandum never
(AF, Tab 9, Pedene Hostile Environment
Memorandum, Subtab 20, pp. 22-24). It alleges that Dr. Bacorn was perpetuating
a hostile environment. The very first sentence reads, I am writing to inform you
that it appears as if the hostile work environment, initiated under Gabriel Perez,
is still present at the PVAHCS, under the auspices of the actions being conducted
by the Associate Director (AD) Dr. Bacorn. (Id., p. 22).
The agency has also mischaracterized another memorandum from Pedene.
It relies on a November 25, 2011 memorandum addressed to VISN 18 Network
Director titled Request for action regarding restoration request. (AF, Tab 9,
Subtab 22, Pedene Action Request Memorandum, p. 30). The agency states As
of November 25, 2011, Ms. Pedene continued to face a hostile work environment.
This time, she by-passed Appellant and went directly to Appellants supervisor
Susan Bowers with her complaints. (AF, Tab 71, Agencys Merits Brief, p. 19).
It is unclear which of the agency attorneys who have entered their appearance in this
case actually authored these passages. Pedenes memoranda are addressed to position
titles, not actual persons, and the agency may have lost sight of who was where when.
While they do not help defend against the appellants argument that the agency is
engaged in a win-at-all-costs railroading campaign, I assume these misrepresentations
were inadvertent.

Attachment 3, p. 24

Exhibit 8, p. 50
25
Again, however, at the time of this memorandum, if the appellant had not yet
arrived in Phoenix, Pedene could not have been bypassing her. 7
Another piece of documentary evidence the agency stands on in support of
this specification, although not a few weeks after Ms. Pedenes last
memorandum to the VISN Director as the agency advances, does at least
postdate the start of the appellants employment in Phoenix. On December 10,
2012, Robinson issued a memorandum to Pedene which advised her she was
being temporarily administratively reassigned for an initial period of thirty (30)
days because a complaint was filed against [her] for possible misconduct. The
misconduct alleged is of a very serious nature and during the investigation [sic]
would be inappropriate for [her] to retain access to [her] current confidential files
or [sic] in contact with individuals who may be later identified as negatively
affected by [her] actions.
(AF, Tab 9, Subtab 23, Robinson Reassignment
Memorandum, p. 33.)
The allegations against Pedene were that she had committed a computer
the Phoenix VA (sic) Parade, into a PowerPoint presentation.
(AF, Tab 11,
Subtab 27, Pedene ROI, p. 66). After Pedene had apparently filed a
whistleblowers complaint with the Office of Special Counsel, the agency
conducted an internal investigation in to Pedenes activities and the appellants
and Robinsons responses to them. (AF, Tab 11, Subtab 27, Pedene ROI, p. 64.)
The report generated from that investigation concluded, in pertinent parts, as
follows:
For purposes of this review, it is accepted that Ms. Pedenes
actions as identified herein constitute protected whistleblowing
7
In this memorandum, Pedene takes issue with certain actions and inactions of Interim
Director, Dr. Jamie Robbins, and an unidentified Associate Director and Asst.
Director. (IAF, Tab 9, Subtab 22, Pedene Action Request Memorandum, pp.30-31).

Attachment 3, p. 25

Exhibit 8, p. 51
26
activity. Even though the initial protected disclosure occurred in
May 2011 prior to the arrival of Ms. Helman and Mr. Robinson,
both of them were aware of Ms. Pedenes prior whistleblower
activity and her continued efforts to restore staffing and budget
reductions she attributed to that activity. [***]
(Id., p. 81).
The allegation that Ms. Pedenes whistleblowing activity was a
contributing factor to her detail in Education Service is sustained.
Numerous employees alleged to have been involved in similar
computer or privacy violations were not detailed to other
positions. Additionally, neither the original detail nor subsequent
extensions were properly documented in accordance with VA
policy. [***] Although Ms. Pedene clearly violated VA IT
security policy and corrective action was warranted, as confirmed
by OGC and VACO HR, her violations do not establish clear and
convincing evidence that Ms. Pedene would have been treated in
the same manner in the absence of whistleblowing. Lastly, it
must be noted that Ms. Pedene inadvertently committed an earlier
privacy violation in January 2012 for which she received no
adverse personnel action. This "no action" arguably militates
against a retaliatory motive, but does not sufficiently overcome
the obvious disparate treatment Ms. Pedene received following
the computer incident in December 2012.
(Id., p. 82).
The appellants attack on the agencys case for this specification is both
legal and factual. The appellant argues first that failing to stop a reassignment
which could be perceived as retaliation, as the specification states, is not
actionable misconduct because the standard is too amorphous, in that, any action
could look objectionable to someone, somewhere, at some time, the standard
departs from related precedent, the agency has not previously held managers to
such a standard and, if the appellant had stopped the reassignment because it
could be perceived as retaliation for whistleblowing, she would have directly run
afoul of the Whistleblower Protection Act because she would have failed to take a
personnel action because of a protected disclosure. (AF, Tab 70, Appellants
Merits Brief, pp. 44-46).

Attachment 3, p. 26

Exhibit 8, p. 52
27
While it has some surface appeal, the short answer to the first objection is
that I am not in the business of running the agency or deciding what standards of
conduct it ought to set for its senior managers in managing its institutions; the
agency is free to bind their hands with Gordian knots if it chooses. Cf. American
Federation of Government Employees, Local 2017 v. Brown, 680 F.2d 722, 726
(11th Cir. 1982); Jackson v. Department of Veterans Affairs, 97 M.S.P.R. 13, 1819 (2004). The particular language of the statute at issue, Section 713(a)(1) of
title 38, authorizes a removal if the Secretary determines the performance or
misconduct of the individual warrants it. This section gives very broad authority
to the Secretary of Veterans Affairs in determining what constitutes misconduct
for an employee in the Senior Executive Service at that agency.
As to departing from precedent, in the cases the appellant cites, the
employees were charged by the Office of Special Counsel with actually violating
the Whistleblower Protection Act (WPA) or another provision of law. Costello v.
Merit Systems Protection Bd., 182 F.3d 1372, 1375 (Fed. Cir. 1999) (the Office
of Special Counsel filed complaints with the Board against Costello and Strehle,
seeking disciplinary actions (under 5 U.S.C. 1215) against them for alleged
violations of the Whistleblower Protection Act); Special Counsel ex rel. Perfetto
v. Dep't of Navy, 85 M.S.P.R. 454, 458-59 (2000) (In a stay request, OSC need
not prove, as part of a prima facie case, that the protected activity was a
significant factor in the agencys termination decision. Rather, that is part of its
burden of proof on the merits); Special Counsel v. Nielson, 71 M.S.P.R. 161,
177 (1996) (The respondent was charged with violating 5 U.S.C.
2302(b)(9)(A) and (C)). I am aware of no precedent which would require the
agency to charge the appellant with actually violating a law, even if it believed
she had done so, and the appellant does not cite any.
An agency may draft
misconduct charges in the manner it thinks best. Having drafted a charge which
states the appellant knew or should have known that Ms. Pedenes reassignment
could be perceived as retaliation for her disclosures[,] the agency does not need
Attachment 3, p. 27

Exhibit 8, p. 53
28
to prove the appellant actually violated the provisions of the WPA, only that
circumstances were such that a perception of retaliation could arise. That does
require reference to the WPAs standards, but not actual proof of violation.
The issue of not having previously charged a senior manager with such an
offense speaks to the propriety of the penalty, not the viability of the charge
itself.
See Lewis v. Department of Veterans Affairs, 113 M.S.P.R. 657, 664
(2010) (lack of notice of a change in policy is a factor in penalty determinations).

Finally, I conclude the appellant misconstrues the WPA.
While her
interpretation may follow from a literal reading of the act, interpreting it in the
manner she suggests would lead to absurd results, and I decline to do so. See
Wassenaar v. Office of Personnel Management, 21 F.3d 1090, 1092 (Fed. Cir.
1994). The act is meant to protect whistleblowers from harm. See Schmittling v.
Department of Army, 92 M.S.P.R. 572, 579 (2002) (the purpose language of
the WPA suggests that Congress sought to broadly protect whistleblowers from
adverse consequences as a result of prohibited personnel practices, whether
those adverse consequences result from personnel actions that are taken or
personnel actions that are not taken). In the context of this scenario, leaving
Pedene in her position would not have been an infliction of harm on her. The
WPA does not shield the appellant as she argues.
With her factual challenge, the appellant contends the report of
investigation is unreliable and points out that she, Robinson and OIG Special
Agent Richard Cady were not interviewed for the report. (AF, Tab 11, Subtab 27,
Pedene ROI, p. 66) (listing persons interviewed). Moreover, none of the persons
interviewed, save Pedene, an interested party, were under oath and, the agency
has proffered no explanation for why that is. (Id.) See Borninkhof v. Department
of Justice, 5 M.S.P.R. 77, 87 (1981) (in weighing the probative value of hearsay,
considerations include whether the out of court statements were made under oath,
and if not, why not, and whether they were made by persons disinterested in the
events). Additionally, the witness statements and exhibits the report refers to
Attachment 3, p. 28

Exhibit 8, p. 54
29
were not appended to the report, (AF, Tab 11, Subtab 27, Pedene ROI, p. 64-84),
and I cannot look past even the first level of hearsay to evaluate that same
evidence now. These proceedings are de novo, the agency must prove its case by
preponderant evidence and I cannot simply assume the accuracy of the report in
light of the evidence the appellant has adduced about it.
The supplemental declarations from Mary Monet and Laurie Butler the
agency introduced in support of this charge do not help and actually undermine
its position somewhat. The reports generated by Monet are not actually appended
to her declaration, although there is an electronic place holder for them. (AF,
Tab 71, Agencys Merits Brief, Monet Decl., pp. 62-63). In Butlers declaration
she avers she directed her staff to search a PVAHCS database which tracks all
disciplinary and adverse actions taken there.
(AF, Tab 71, Agencys Merits
Brief, Butler Decl., p. 60). The search included the terms private, privacy,
HIPAA, violation, access, disclosure, disclose, disclosed, reassign, reassignment,
and reassigned. (Id.) That search resulted in 24 cases from January 2012 to
August 22, 2014 where an employee was charged with a privacy access and/or
disclosure violation. This involves the case of Dr. Katherine Mitchell. (Id.).
Butler also directed her staff to pull all available disciplinary files (paper copy)
for the 24 actions that were identified. (Id. p. 61). They could locate only 21 of
the 23 files. 8 (Id.). She further avers In none of the 21 instances of privacy
access/disclosure violations that I reviewed, other than in the case of Dr.
Katherine Mitchell, was the offending employee placed on administrative absence
or reassigned. (Id.). If the agency really did mean these declarations support its
case regarding the reassignment of Pedene, records relating to her reassignment
were not there, which casts some doubt on the accuracy of those records. The
agency apparently relied on those records, or some such records, for its finding
I take the change of 24 to 23 to be a typographical error.

Attachment 3, p. 29

Exhibit 8, p. 55
30
that [n]umerous employees alleged to have been involved in similar computer or
privacy violations were not detailed to other positions.
The appellant introduced an affidavit and declaration from Robinson
wherein he avers Cady asked him to temporarily reassign Pedene while the OIG
investigated allegations of financial impropriety by her. 9 (AF, Tab 70, Ex. 4,
Robinson Aff., p. 86; Ex. 4a, Robinson Decl., p. 89). Attempting to blunt this
last point, the agency introduced a declaration from Cady where he states, In
January 2013, my office looked into an investigative referral regarding Ms. Paula
Pedene at the Phoenix VA Health Care System (PVAHCS). I never directed
PVAHCS Associate Director Lance Robinson to reassign Ms. Pedene to another
position. (AF, Tab 71, Agencys Merits Brief, Cady Decl., p. 42). I find it more
likely than not both statements are true. 10
Cady did not direct Robinson to
reassign Pedene, because as an investigating agent he likely had no authority to

direct the taking of a personnel action, and he did request that Robinson reassign
her so that, if there actually was wrongdoing to be uncovered, Pedene would not
be in a position to cover her tracks as easily or otherwise interfere with the
investigation.
To make out a prima facie case of whistleblower retaliation before the
Board, one must allege: (1) he or she engaged in whistleblowing activity by
making a protected disclosure, and (2) the disclosure was a contributing factor in
the agencys decision to take or fail to take a personnel action.
Ormond v.
Department of Justice, 118 M.S.P.R. 337, 339 (2012) (citing Yunus v. Department
The report sets out the appellants involvement in the misuse of funds allegation and
why her actions in that regard appeared retaliatory, but the agency did not charge her
with anything related to that, only the reassignment by Robinson.
10
The agency argues that Appellant has claimed that OIG Agent Cady advised that
Robinson reassign Pedene. Agent Cady specifically denies this. (Decl. of Agent Cady,
3.) (IAF, Tab 71, Agencys Merits Brief, p. 20 n.11). Again, that is simply not what
Cady says in the declaration.

Attachment 3, p. 30

Exhibit 8, p. 56
31
of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001)).
A protected
disclosure is a disclosure that a person reasonably believes evidences a violation

of any law, rule, or regulation, gross mismanagement, a gross waste of funds, an
abuse of authority, or a substantial and specific danger to public health or safety.
5 U.S.C. 2302(b)(8)(A).
I conclude that Pedenes statements to the
Administrative Investigation Board or the appellant herself could be construed as

disclosing an abuse of authority. However, if an agency can prove, by clear and
convincing evidence it would have taken the same actions in the absence of the
protected disclosure, no unlawful retaliation has occurred.
See Whitmore v.
Department of Labor, 680 F.3d 1353, 1367 (Fed. Cir. 2012).

Putting aside for now the Miller issue discussed with Specification A,
supra, in considering all the evidence identified by the parties for this
specification, I conclude the agency has not demonstrated, by preponderant
evidence, the appellant knew or should have known that Ms. Pedenes
reassignment could be perceived as retaliation for her disclosures.
The evidence the agency introduced is marginally probative at best. The
report generated from the internal investigation does not pass muster under
Borninkhof and cannot carry the day for the agency by itself. Even if it did carry
significant probative value, one of the things it points out is that Pedene was
observed violating agency computer security policies, apparently for a second
time. See Russell v. Department of Justice, 76 M.S.P.R. 317, 325 (1997) (An
employee is not completely shielded from his misconduct by anti-discrimination
laws or the WPA. Rather, those laws shield an employee only to the extent the
record supports a finding that he would not have been disciplined except for his
status as a whistleblower or a member of a protected class). The OIGs
involvement in Pedenes reassignment is not mentioned in the report the agency
heavily relies on. Moreover, something not addressed in the report is that before
Robinson reassigned Pedene, he consulted with the PVAHCS Human Resources
Officer, Maria Schloendorn, who counseled that Pedene should be reassigned
Attachment 3, p. 31

Exhibit 8, p. 57
32
while the Office of Inspector General conducted its investigation. (AF, Tab 70,
Ex. 6, Agencys Response to Appellants Request for Admission 70). There is no
contention by the agency that Cady or Schloendorn had any reason to know about
Pedenes disclosures or that Robinson was prone to ignoring Schloendorns
advice. When the agencys evidence is weighed against the facts that an OIG
agent specifically requested Ms. Pedenes reassignment, and that Robbins asked
his Human Resources Officer what he should do about that request and she
advised he should reassign, I conclude Robinson would have taken the same
action, Pedenes disclosures notwithstanding. The agency has not met its burden
on this specification, and the charge as a whole is not sustained.
With its second charge, Charge 2 is labeled Conduct Unbecoming a Senior
Executive, and has two specifications. (Tab 1, PAM, p. 10.) This is also a
generic charge with no specific elements of proof. It is established by proving
that the appellant committed the acts alleged in support of the broad label. See
LaChance, 147 F.3d at 1371; Canada v. Department of Homeland Security, 113
M.S.P.R. 509, 513 (2010).
Charge 2, Specification A reads as follows:
On September 20, 2013, you placed Dr. Mitchell on
administrative absence pending investigation into an allegation
that she violated patient privacy by providing Senator McCain
with a list of patients who had committed suicide. Between
January 2, 2012 and August 22, 2014, PVAHCS investigated
numerous data breaches. There is no evidence any of the subjects
of these investigations were placed on administrative absence.
You knew or should have known that Dr. Mitchell made a
disclosure to Senator McCain. You knew or should have known
that placing Dr. Mitchell on administrative absence could be
(AF, Tab 1, PAM, p. 10.)
In its merits brief, the agency argues that the appellant either engaged in
retaliation or in conduct that could be perceived as retaliation. (AF, Tab 71,
Agency Merits Brief, p. 22). I will not address whether the conduct alleged in

Attachment 3, p. 32

Exhibit 8, p. 58
33
this specification constituted actual retaliation because the agency charged the
appellant only with engaging in conduct that she knew or should have known
could be perceived as retaliation. (AF, Tab 1, PAM, p. 10). It is immaterial
whether the appellants actions were actually retaliatory because the agency did
not charge her with actual retaliation. See LaChance, 147 F.3d at 1372. Rather,
it charged her with creating the possible perception of retaliation. The agency
cannot rewrite the specification at this stage of the proceedings to include
allegations that it could have included in the charging document but did not. See
Minor, 115 M.S.P.R. at 311.
As for the proof of what was actually charged, I find that the agency has
met its burden, and the underlying facts do not appear to be in real dispute. The
agency submitted a copy of the documents that Dr. Mitchell sent to Senator
McCains office, which show that, on August 20, 2013, Dr. Mitchell disclosed the
first names and last initials of four Phoenix VAHCS patients who had committed
suicide. (AF, Tab 9, pp. 18-19). The record also shows that, on September 20,
2013, the appellant executed a memorandum notifying Dr. Mitchell that she
would be placed on administrative leave effective immediately. (AF, Tab 7, p.
64). A December 19, 2013 memorandum of counseling signed by Dr. Mitchells
immediate supervisor confirms that her disclosure to Senator McCain was the
reason for her placement on administrative leave. (Id. p. 66). The appellants
and Dr. Mitchells declarations corroborate these events and the appellants
personal awareness of them. (AF, Tab 70, Appellants Decl., pp. 71-73, Tab 71,
Mitchell Decl., p. 65).
I also find that the agency has proven that the appellant knew or should
have known that placing Dr. Mitchell on administrative absence could be
(AF, Tab 1, PAM, p. 10).
Dr.
Mitchells disclosures appear calculated to address what she reasonably believed

was a substantial and specific danger to public health and safety, i.e., the
inadequacy of the Phoenix VAHCSs suicide prevention efforts, which in Dr.
Attachment 3, p. 33

Exhibit 8, p. 59
34
Mitchells opinion, contributed to the deaths of the patients named in the
disclosure. (AF, Tab 9, pp. 18-19). See 5 U.S.C. 2302(b)(8)(A); Parikh v.
Department of Veterans Affairs, 116 M.S.P.R. 197, 206-207 (2011) (the appellant
made
non-frivolous
allegation
that
substandard
care
at
Veterans
Administration hospital presented a substantial and specific danger to public

health and safety because such substandard care could lead to patient deaths). In
addition, the appellant herself admits that Dr. Mitchells disclosures were the
reason that she placed Dr. Mitchell on administrative leave, thus establishing a
connection between Dr. Mitchells disclosures and the administrative leave. (AF,
Tab 70, Appellants Decl. pp. 71-73). I find that these facts would be sufficient
for Dr. Mitchell to establish a prima facie case under the WPA, as amended, with
the appellant as the retaliating official. See Yunus, 242 F.3d at 1371. Because
Dr. Mitchells disclosure is the very reason for placing her on administrative
leave, there is no way establish the same action would have been taken in the
absence of the disclosure. Thus, I find that the agency has established that the
appellants act of placing Dr. Mitchell on administrative leave could be perceived
as retaliatory.
Although the appellant does not dispute the facts, she argues that Charge 2,
Specification A fails to make out a case of actionable misconduct. (AF, Tab 70,
Appellants Merits Brief, pp. 48-50, Tab 72, Appellants Reply Brief, pp. 17-19).
Specifically, she argues that she relied on the advice of her immediate supervisor,
the Phoenix VA Chief of Human Resources, and two different agency attorneys in
determining that Dr. Mitchell should be placed on paid administrative leave
pending an investigation into whether the disclosure violated patient privacy.
(AF, Tab 70, Appellants Merits Brief, pp. 48-50, Appellants Decl., p. 72; Tab
72, Appellants Reply Brief, pp. 17-19). Again, as discussed above, the agency
may set its standards of conduct for its senior managers in the manner it thinks
best. She further argues that no one raised concerns of retaliation at the time, and
that no other employee had been placed on administrative leave for a suspected
Attachment 3, p. 34

Exhibit 8, p. 60
35
privacy violation during her tenure because none of those other employees had
released information outside the agency. (AF, Tab 70, Appellants Merits Brief,
p. 50; Appellants Decl., pp. 71-72; Tab 72, Appellants Reply Brief, pp. 49-50).
This evidence and argument appears to be geared toward showing that the
appellants actions were not, in fact, retaliatory, which as explained above is
beside the point. The agency did not charge the appellant with actual retaliation,
but with taking actions that could be perceived as retaliatory for [Dr. Mitchells]
disclosures. (AF, Tab 1, PAM, p. 10.) The agency has carried it burden on this
issue.
The appellants argument is akin to an argument that an appellant might
make in an appeal under 5 U.S.C. Chapter 75 that a proven charge bears no nexus
to the efficiency of the service. See 5 U.S.C. 7513 (an agency may take an
action covered by this subchapter against an employee only for such cause as will
promote the efficiency of the service); see, e.g., Jordan v. Department of the Air
Force, 36 M.S.P.R. 409, 411 (1988) (although the agency proved its charge of
selling black market motor vehicles off duty, the Board reversed the removal
because the agency failed to establish a nexus between the conduct and the
efficiency of the service). However, this appeal does not arise under 5 U.S.C.
chapter 75; it arises under 38 U.S.C. 713. Thus, a question is raised: Is there a
nexus requirement for disciplinary actions under that section?
The statute provides, in pertinent part, that [t]he Secretary may remove an
individual employed in a senior executive position at the Department of Veterans
Affairs from the senior executive position if the Secretary determines the
performance or misconduct of the individual warrants such removal. 38 U.S.C.
713(a)(1).
I find that the plain language of the statute does not contain a
specific nexus requirement as is found in 5 U.S.C. 7513(a), but it does predicate

the Secretarys removal authority on the existence of actual misconduct.
Cf.
Social Security Administration v. Long, 113 M.S.P.R. 190, 46 (2010) (the good

Attachment 3, p. 35

Exhibit 8, p. 61
36
cause standard to remove and administrative judge under 5 U.S.C. 7521 does
not contain a separate nexus requirement).
As for whether creating the possible perception of reprisal constitutes
actual misconduct, if this were an appeal under Chapter 75, I would be inclined to
agree with the appellant that it does not. Any personnel action taken against an
employee who arguably made a protected disclosure, by a manager who arguably
knew about the disclosure, raises an inference of retaliation.
See Mudd v.
Department of Veterans Affairs, 120 M.S.P.R. 365, 370-71 (2013). Nevertheless,

employees who have previously blown the whistle are not immune from
performance and conduct deficiencies; nor are they immune from budgetary and
organizational considerations that affect the agency at large, and agency
managers may be required to take action against such employees for legitimate,
nonretaliatory reasons.
See 5 U.S.C. 1221(e)(2); Morgan v. Department of
Energy, 424 F.3d 1271, 1273 (Fed. Cir. 2005) (the Board cannot not order
corrective action in a whistleblower reprisal case if the agency can prove, by
clear and convincing evidence, that it would have taken the personnel action at
issue notwithstanding the protected disclosure); Moeller v. Department of
Veterans Affairs, 62 M.S.P.R. 361, 366-67 (1994) (whistleblowing does not
shield an employee from discipline which is not motivated by retaliation for the
protected disclosure).
Thus, in the ordinary case, the possible perception of
whistleblower reprisal, in the absence of something more, would likely not

constitute misconduct. However, as discussed above, the particular language of
the statute gives the Secretary broad discretion in determining what constitutes
misconduct for the agencys SES.
Charge 2, Specification A is therefore
sustained. 11
11
Notwithstanding the above, I find that it is proper for me to consider the tenuous
nature of this misconduct, such as it is, in deciding whether the appellant has rebutted
the reasonableness of the penalty imposed on her. As explained below, this charge,
although proven, merits little weight in that regard.

Attachment 3, p. 36

Exhibit 8, p. 62
37
Specification B of this charge alleges:
Charge 2, Specification B reads as follows:
You accepted the following gifts from Dennis "Max" Lewis, Vice
President. Jefferson Consulting Group, who you knew or should
have known was a consultant to a healthcare provider that was
seeking to conduct business with one or more PVAHCS
Community-Based Outpatient Clinics (CBOCs) under your
management:
from Phoenix, Arizona to Vancouver, British Columbia for travel
in May 2012;
from Phoenix, Arizona to Portland, Oregon from [sic] travel in
October 2012;
c. Admission price of approximately $121.80 for a Pink Jeep
Tour in November 2012;
d. Entry fee of approximately $65 paid on November 27, 2012,
for the Runners Den/Fiesta Bowl Half marathon and 5K on
December 2, 2012;
e. Airline tickets at a cost of approximately $317.60 roundtrip
from Phoenix, Arizona to El Paso, Texas for travel in March
2013;
f. Entry fee of approximately $70.25 paid on April 29, 2013 for
the Mississippi [Blues] Marathon;
g. Airline tickets at a cost of approximately $1,015.60 roundtrip
from Phoenix, Arizona to Eureka, California for travel in May
2013;
h. Airline tickets at a cost of approximately $389.80 roundtrip
from Phoenix, Arizona to Portland, Oregon for travel in June
2013;
i. Five tickets and parking for approximately $729.50 paid on
August 24, 2013 to The Mrs. Carter Show World Tour Starring
Beyonce on December 7, 2013;
j. Entry fee of approximately $282.98 paid on or about December
11, 2013 for the 2014 P.F. Changs Rock 'n' Roll Arizona
Marathon & Half Marathon on December 2, 2013;
k. A trip to Disneyland which cost in excess of $11,000; and

Attachment 3, p. 37

Exhibit 8, p. 63
38
l. An entry fee of approximately $105 for you to participate in
the Napa Valley Marathon in 2015.
You knew or should have known that the acceptance of these gifts
creates the appearance of a conflict of interest.
(AF, Tab 1, PAM pp. 10-11). For this specification, the agency must prove: (1)
whether the appellant accepted these gifts as alleged, and if so (2) whether she
knew or should have known that such acceptance created the appearance of a
conflict of interest.
For the reasons discussed below in connection with Charge 3, I find that
the agency established that the appellant accepted the following gifts from Lewis:
Item a., roundtrip airline tickets at a cost of approximately $465.07 between
Phoenix and Vancouver for travel in May of 2012; item b., roundtrip airline
tickets between Phoenix and Portland, Oregon at a cost of approximately $355.60
for travel in October 2012; item e., roundtrip airline tickets between Phoenix,
Arizona and El Paso, Texas at a cost of approximately $317.60 for travel in
March, 2013; item h., roundtrip airline tickets from Phoenix, Arizona to Portland,
Oregon at a cost of approximately 389.80 for travel in May, 2013; item i., five
tickets and parking for approximately $729.50 paid on August 24, 2013 to the
Mrs. Carter World Show Starring Beyonc on December 7, 2013; and item j., an
entry fee of approximately $282.98 paid on or about December 11, 2013 for the
2014 P.F. Changs Rock n Roll Arizona Marathon and Half Marathon on
December 2, 2013.
Also for the reasons discussed below in connection with
Charge 3, I find that the agency failed to establish that the appellant accepted
item g., roundtrip airline tickets between Phoenix, Arizona and Eureka, California
at a cost of approximately $1,015.60 for travel in May, 2013.
Regarding item c., admission price of approximately $121.80 for a Pink
Jeep Tour in November, 2012, I find that the agency has failed to show that the
appellant accepted this as a gift from Lewis.
The record contains a receipt
showing that, on November 9, 2012, Lewis booked a Pink Jeep tour for
November 14, 2012 at the cost of $243.59. (AF, Tab 11, pp. 304-05). The record
Attachment 3, p. 38

Exhibit 8, p. 64
39
also contains a liability waiver and a trip manifest that appear to be related to this
booking. (Id. pp. 305-06). The appellants name, however, appears nowhere in
any of these documents, and the agency has not explained how it tied this item to
the appellant or concluded that this was a gift for her. In fact, this alleged gift is
mentioned nowhere in the agencys merits brief or its rebuttal brief. In short, the
agency has not identified any evidence that the appellant accepted item c. from
Lewis as alleged in the specification.
I likewise find that the agency failed to prove that the appellant accepted as
a gift from Lewis item d., an entry fee of approximately $65 paid on November
27, 2012 for the Runners Den/Fiesta Bowl Half Marathon and 5K on December 2,
2012. This allegation is not mentioned in the agencys merits brief or its rebuttal
brief. Nor has my review of the record uncovered any documentation related to
this allegation which would support it.
Regarding item f., an entry fee of approximately $70.25 paid on April 29,
2013 for the Mississippi Blues Marathon, I find that the agency has proven that
the appellant accepted this as a gift from Lewis. Specifically, the record contains
an April 29, 2013 registration confirmation for that marathon, indicating that the
appellant was the registrant and that Lewis paid the $70.25 entry fee (AF, Tab 11,
p. 329). Cadys declaration confirms that the IG uncovered this document during
its investigation. (AF, Tab 71, Cady Decl. p. 44).
Regarding item k., a trip to Disneyland costing in excess of $11,000, I
find that the agency has proven that the appellant accepted this gift from Lewis as
well. The record contains a January 13, 2014 email from Lewis to the appellant
stating Enjoy. (AF, Tab 11, p. 238). Attached to the email is a reservation
confirmation for the appellant and what appear to be six of her family members
for an 8-night stay at Disneyland, plus several upgrades and amenities. (Id., p.
239). The total amount of the reservation is blocked out on the attachment, but
the record contains an unredacted copy of it as well, showing the total amount to
be $11,205.28, and that payment in full had been made on January 13, 2014. (Id.,
Attachment 3, p. 39

Exhibit 8, p. 65
40
p. 243). The record also contains a document titled Information on Payment,
showing that Lewis engaged in a credit card transaction of exactly $11,205.28 on
that date. (Id., p. 154). Finally, the record contains a printout of a subpoenaed
Walt Disney computer record stating that a Disney employee spoke w/Dennis
Lewis who made this resv and paid for it . . . This is a secret gift to this family
and only Sharon knows the source but even she does not know the cost. (Id., p.
184). These facts are confirmed by Cadys declaration about the investigation.
(AF, Tab 71, Cady Decl., p. 46).
Regarding item l, an entry fee of approximately $105 for the appellant to
participate in the Napa Valley Marathon in 2015, I find that the agency has
proven that the appellant accepted this as a gift from Mr. Lewis. Specifically, the
record contains a March 28, 2014 registration confirmation for that marathon,
indicating that the appellant was the registrant and that Mr. Lewis paid the
$105.00 entry fee. (AF, Tab 11. p. 246). Cadys declaration again confirms that
the OIG uncovered this document during its investigation. (AF, Tab 71, Cady
Decl., p. 46).
Having proven that the appellant accepted nine of the twelve alleged gifts
from Lewis, the agency must now prove, as it charged, that the appellant knew or
should have known that the acceptance of those gifts created the appearance of a
conflict of interest. See LaChance, 147 F.3d at 1371. For the following reasons, I
find that the agency has met its burden of proof.
First, I find that the appellant knew that Lewis was a Vice President at
Jefferson Consulting at the time that she accepted these gifts from him, and that
she knew that Jefferson Consulting was doing work for companies doing business
or seeking to do business directly with the agency.
The record contains an
August 7, 2013 email from the President of Jefferson Consulting Group to the
appellant introducing a Humana employee for purposes of discussing Humanas
experience and ideas to provide a near term alternative solution to VHAs need
for larger, community-based clinics with expanded capabilities, and offering to
Attachment 3, p. 40

Exhibit 8, p. 66
41
participate in the discussion as needed. (AF, Tab 12, p. 266). The record also
contains two business-related email exchanges between Lewis and the appellant,
with Mr. Lewis using his business address. In the first email exchange, dated
August 28, 2012, Lewis forwarded the appellant information pertaining to the
current contractor at a VISN 18 community-based outreach clinic and the
challenges facing the clinic and its workload. (Id., pp. 273-74). In the second
email exchange, dated August 21, 2013, Lewis and the appellant discussed
agency practices in meeting with potential vendors. (Id., pp. 277-78). Based on
the foregoing, I find it more likely than not that the appellant was aware of
Lewiss position with Jefferson consulting, and that Jefferson Consulting was
involved in helping contractors to secure business with the agency.
The
appellant, at least occasionally, had business-related discussions with Lewis, and

the appellant had personally worked with Jefferson Consulting in discussions
with potential contractors. I find it difficult to believe that she accepted over
$13,000 in gifts from Lewis over a two year period, as described above, without
knowing what he did for a living.
I also find that this acceptance of gifts from him created the appearance of
a conflict of interest. Although Jefferson Consulting does not appear to have
been doing business, or attempting to do business, directly with the agency, its
client companies were. In fact, it is Jefferson Consultings very business is to
assist its clients in securing favorable government contracts, particularly with the
Department of Veterans Affairs. (AF, Tab 12, pp. 279-80). Furthermore, I find,
based on documentary evidence pertaining to the appellants involvement in
contract negotiations and her approval of a contract request, that her official
duties as Director of the Phoenix VAHCS placed her at the opposite end of the
negotiating table from Jefferson Consulting Group and its clients. (AF, Tab 11
pp. 248-51, 260-62).
I therefore find that the agency has proven that the
appellants interest in accepting the gifts from Lewis reasonably create[s] an

appearance of having an effect on her interests or duties in her role as Director
Attachment 3, p. 41

Exhibit 8, p. 67
42
of the Phoenix VAHCS. See Lane v. Department of the Army, 19 M.S.P.R. 161,
162-63 (1984). Charge 2, Specification B is sustained.
The third charge against the appellant was Failure to Report Gifts, which
included two specifications. (AF, Tab 1, PAM, pp. 11-12).
Once again, the
agency used generalized charging language, so the specifications supporting the

charge determine what the agency must prove. LaChance, 147 F.3d at 1371.
Specification A involved the failure to report calendar year 2012 gifts. It
states:
Financial Disclosure Report in which you reported your financial
assets for calendar year 2012. Annual reporting is your obligation
as a member of the Senior Executive Service. Under Schedule B,
Part II: Gifts, Reimbursements and Travel Expenses, you marked
the box None in response to the following:
$350.
You failed to report the following gifts which were given to you
by Dennis Max Lewis, Vice President for Jefferson Consulting
Group during calendar year 2012:
a. International airline tickets at a cost of approximately $465.07
roundtrip from Phoenix, Arizona to Vancouver, British Columbia
for travel in or about May 2012; and
from Phoenix, Arizona to Portland, Oregon from travel in or
about October 2012.
(AF, Tab 1, PAM, p. 11).
Thus, in order to prove Specification A, the agency must prove the
following elements: (1) that for calendar year 2012 the appellant signed Ethics
Form 278 on about March 22, 2013; (2) that the appellant marked None when
asked about 2012 transportation gifts in excess of $350 from a single source; and
Attachment 3, p. 42

Exhibit 8, p. 68
43
(3) that in 2012 the appellant received from Lewis a May 2012 roundtrip airline
tickets from Phoenix to Vancouver, which cost approximately $465.07, as well as
October 2012 roundtrip airline tickets from Phoenix to Portland, which cost
approximately $355.60.
Ethics Form 278 on about March 22, 2013. (AF, Tab 11, p. 264). As with part of
Charge 2, the primary supporting evidence is provided by the sworn declaration
of Cady, the Resident Agent in Charge of a division of the OIG. (AF, Tab 71, p.
42).
12
Cady obtained the appellants Form 278 from the agencys Office of
General Counsel (AF, Tab 71, Cady Decl., pp. 46-47).
Second, Cadys
investigation confirmed that the appellant did, indeed, check none when asked
about 2012 transportation gifts in excess of $350 from a single source. (AF, Tab
11, page 266).
Third, as explained in more detail below, and despite some
evidentiary issues, the agency has proven that Lewis gave the appellant the two
referenced 2012 roundtrip airline tickets.
Vancouver in May 2012, there are two pieces of evidence that seem probative.
The first is Lewiss April 30, 2012 email in which he forwarded the United
Airlines e-ticket directly to the appellant. (AF, Tab 11, pp. 188-191). The second
is the OIG-subpoenaed United Airlines record that confirms the e-ticket was
purchased with Lewiss credit card. (AF, Tab 11, pp. 335, 337). Both pieces of
evidence are confirmed by Cadys investigation. (AF, Tab 71, Cady Decl. pp. 4344). Accordingly, I find the agency has proven the first unreported 2012 gift in
Specification A.
12
Starting in April 2014, Cadys investigation included a review of subpoenaed records

from Southwest Airlines, United Airlines, Kaiser Permanente, and Live Nation (Ticket
Master). (IAF, Tab 71, pp. 42-43). His investigation also included a review of
numerous emails obtained from the agencys email system. (Id., p. 43).

Attachment 3, p. 43

Exhibit 8, p. 69
44
Portland in October 2012, there is an evidentiary issue, but the agency has
nevertheless managed to overcome it. The evidentiary issue involves Cadys
assertion that he reviewed an email from Lewis to the appellant indicating that on
September 15, 2012, the appellant was issued a United Airlines roundtrip e-ticket
between Phoenix and Portland for travel in October 2012. ((AF, Tab 71, Cady
Decl., pp. 44). Although he makes that assertion, Cady failed to provide any
record citation for that email. Moreover, in culling the record, I could find no
such email. Nevertheless, in paragraph 17 of Cadys declaration, (AF, Tab 71, p.
44) he also relies on an OIG-subpoenaed record from United Airlines, which
indicates that on September 14, 2012, Lewis paid for two tickets, each worth
$355.60, that were issued to the appellant and Lewis. (AF, Tab 11, pp. 340-41).
Accordingly, I find the agency has also proven the second unreported 2012 Lewis
gift in Specification A. This specification is sustained.
Turning to Specification B, which involved the appellants failure to report
calendar year 2013 gifts, the agency alleged the following:
Financial Disclosure Report. Under Schedule B, Part II: Gifts,
Reimbursements and Travel Expenses, you marked the box
None in response to the following:
$350.
You failed to report receiving in-kind payment or reimbursement
for travel expenses totaling over $770.00, including a hotel room
for one night, airfare, meals, a rental car and airport parking,
resulting from a job interview with Kaiser Permanente in October
2013.

Attachment 3, p. 44

Exhibit 8, p. 70
45
You failed to report the following gifts purchased by Dennis
Max Lewis, Vice President, Jefferson Consulting Group during
calendar year 2013:
from Phoenix, Arizona to El Paso, Texas for travel in or about
March 2013;
b. Airline tickets at a cost of approximately $1,015.60 roundtrip
from Phoenix, Arizona to Eureka, California for travel in or about
May 2013;
c. Airline tickets at a cost of approximately $389.80 roundtrip
from Phoenix, Arizona to Portland, Oregon for travel in or about
June 2013;
d. Five tickets and parking for approximately $729.50 paid on or
about August 24, 2013 to The Mrs. Carter Show World Tour
Starring Beyonc on or about December 7, 2013;and
e. Entry fee of approximately $282.98 paid on or about December
11, 2013, for the 2014 P.F. Changs Rock n Roll Arizona
Marathon & Half Marathon on or about December 2, 2013.
(AF, Tab 1, PAM, p. 12).

As before, the language of Specification B determines what the agency
must prove. LaChance, 147 F.3d at 1371. Thus, the agency must prove: (1) that
for calendar year 2013 the appellant signed Ethics Form 278 on about March 22,
2014; (2) that the appellant marked None when asked about the receipt of 2013
gifts of transportation, lodging or food, as well as the receipt of 2013 travelrelated cash reimbursements; and (3) that in 2013 the appellant received from a
single source one or more of the listed items in excess of $350.
Ethics Form 278 on about March 21, 2014. (AF, Tab 11, p. 270). As with the
prior years form, Cady obtained the Form 278 from the agencys General
Counsel. (AF, Tab 71, Cady Decl., pp. 46-47).
Second, Cadys investigation
confirmed that the appellant did, indeed, check None when asked about 2013
gifts in excess of $350 from a single source. (AF, Tab 11, page 272). Third, as
explained in more detail below, and again despite some evidentiary issues, the

Attachment 3, p. 45

Exhibit 8, p. 71
46
agency has proven that the appellant received more than $350 from Kaiser
Permanente, and more than $350 from Lewis, based on most, but not all, of the
items set out in the specification.
The agency alleged that the appellant failed to report the reimbursement of
travel expenses regarding her October 2013 Kaiser Permanente job interview,
which totaled more than $770 for airfare, hotel, meals, rental car, and airport
parking. (AF, Tab 1, page 12). In support of that allegation, Cadys Declaration
confirms the review of OIG-subpoenaed documents from Kaiser Permanente,
(AF, Tab 71, Cady Decl., p. 45), which indicate that on October 7, 2013, the
appellant did indeed interview for the position of Chief Operating Officer at the
Santa Clara Medical Center. (AF, Tab 11, p. 295). However, with respect to the
expenses for that trip, Cady makes the following assertion in his declaration: I
reviewed OIG-subpoenaed documents from Kaiser Permanente (KP).
They
indicate that Ms. Helmans reimbursements for the interview described in

paragraph 29 above were paid as follows by Kaiser Permanente: $33.78 (meals),
$60.57 for one days car rental, $22.00 for airport parking, $141.34 for one
nights hotel stay, and round trip air fare of $259.80. This resulted in a total of
$517.49. (AF, Tab 71, Cady Decl. p. 45) (citing AF, Tab 11, pp. 278, 281-83,
286-88, 290-91, 293). In looking at the underlying evidence, it is somewhat more
nuanced:
Kaiser Permanente only reimbursed the appellant with a check for
$116.35 to cover meals, rental car, and airport parking, while the remaining
expenses for hotel ($141.34) and air travel ($259.80) were paid directly by Kaiser
Permanente to third-party vendors, and not to the appellant. (AF, Tab 11, p. 276).
The distinction makes somewhat of a difference because Form 278 only requires
the reporting of travel-related cash reimbursements received from one source
totaling more than $350. (AF, Tab 11, pp. 266, 272) (emphasis added). In this
case, the appellant only received a travel-related cash reimbursement of
$116.35, which is below the reporting threshold. Nevertheless, for the remainder
of the Kaiser Permanente interview trip, the appellant received more than $350 in
Attachment 3, p. 46

Exhibit 8, p. 72
47
value, which triggers the Form 278 requirement to report gifts (such as tangible
items, transportation, lodging food, or entertainment) received from one source
totaling more than $350.
(Id.).
Accordingly, I find that the agency has
established a 2013 unreported reimbursement received from Kaiser Permanente.

With respect to the five unreported 2013 gifts from Lewis, each is
addressed in turn. The first unreported 2013 Lewis gift involves roundtrip airline
tickets from Phoenix to El Paso for travel in March 2013 at a cost of
approximately $317.60. (AF, Tab 1, page 12). At the outset, it should be noted
that this item, standing alone, does not meet the $350 minimum reporting
requirement. (AF, Tab 11, pp. 266, 272). As Form 278 provides, the appellant
was only required to report gifts or travel-related cash reimbursements received
from one source totaling more than $350. (Id.). Nevertheless, to the extent it
may be combined with other unreported 2013 gifts from Lewis, the record
evidence supports the charge. Cadys Declaration confirms that he reviewed a
March 11, 2013 email from Lewis to the appellant confirming the Phoenix to El
Paso e-ticket at a cost of $317.60. (AF, Tab 71, Cady Decl., p. 44). Although
Cady again does not provide a record citation, this time, the email is included in
the record. (AF, Tab 11, pp. 204-208). The gift is also confirmed by Cadys
Declaration regarding his review of the OIG-subpoenaed documents from
Southwest Airlines, (AF, Tab 71, Cady Decl. p. 44), which references those
records. (AF, Tab 11, pp. 309-325).
The second unreported 2013 Lewis gift was a roundtrip airline ticket from
Phoenix to Eureka, California for travel in May 2013 at a cost of $1015.60. (AF,
Tab 1, PAM. p. 12). The agency has not proven this alleged gift by preponderant
evidence. Cadys declaration confirms his review of Lewiss April 4, 2013 email
to the appellant forwarding the United Airlines Eureka roundtrip e-ticket to the
appellant, which states [f]or your upcoming Avenue of the Giants Marathon.
(AF, Tab 11, pp. 211-13).
However, the problem with this allegation is also
found in Cadys declaration, which concedes that, based on OIG-subpoenaed

Attachment 3, p. 47

Exhibit 8, p. 73
48
United Airlines documents, the airfare was $1015.60, but only $507.80 was paid
(AF, Tab 71, page 44). Although that fact strongly suggests there was travel by
either the appellant or Lewis, but not both, Cady does not further explain the
discrepancy.
Moreover, the very OIG-subpoenaed documents relied upon by
Cady tend to show the passenger was Lewis, not the appellant. (AF, Tab 11, pp.
343-44). Paragraph 21 of Cadys declaration cites Tab 11, pages 343-44, which
is a difficult to decipher computer printout, but almost all the references are to
Lewis, not the appellant. Moreover, the very next two pages, which Cady does
not mention, seem to confirm Lewis as the passenger in the itinerary, and include
a copy of his boarding pass. (AF, Tab 11, pp. 345-46). There are no comparable
documents, a boarding pass or something similar, for the appellant. Accordingly,
I find that the agency has failed to prove this gift to the appellant.
The third unreported 2013 Lewis gift was a roundtrip airline ticket from
Phoenix to Portland, Oregon for travel in June 2013 at a cost of approximately
$389.80. (AF, Tab 1, PAM, p. 12).
Paragraph 24 of Cadys declaration
references his review of a June 26, 2013 email Lewis sent to the appellant
forwarding the e-ticket for this trip (AF, Tab 71, Cady Decl. p. 44). That email is
in the record. (AF, Tab 11, pp. 216-219). Moreover, Cady relies on the OIGsubpoenaed record from United Airlines, which further confirms the appellants
flight at Lewiss expense. (AF, Tab 11, page 348, column 3). Both the Lewis
email and the OIG-subpoenaed United Airline record confirm that the roundtrip
ticket was purchased in June for travel in July. (AF, Tab 11, pp. 216-219, 348). I
conclude that the agency has proven this gift allegation.
The fourth unreported 2013 Lewis gift was a set of tickets and parking fees
for the Mrs. Carter Show World Tour Starring Beyonc on about December 7,
2013 at a cost of $729.50. (AF, Tab 1, PAM, p. 12). Cady again confirms his
review of a December 13, 2013 email from the appellant to her staff regarding her
attendance at the Beyonc concert. (AF, Tab 71, Cady Decl., p. 45). That email
is found in the record. (AF, Tab 11, p. 235). In Paragraph 27 of his declaration,
Attachment 3, p. 48

Exhibit 8, p. 74
49
Cady also asserts the uncovering of an August 28, 2013 email from Lewis to the
appellant forwarding the Ticketmaster confirmation and including the message,
Enjoy! (AF, Tab 71, Cady Decl. p. 45). He again, however, fails to provide a
record citation to that email, and a search has not revealed it. Nevertheless, in
paragraph 28 of the declaration, Cady attests to his review of OIG-subpoenaed
documents from Live Nation/Ticketmaster, which confirmed that Lewis paid for
the tickets. (AF, Tab 71, Cady Decl. p. 45). Those documents are actually in the
record. (AF, Tab 11, pp. 300-302). Accordingly, I find it more likely than not
Lewis gave the appellant this gift.
The last of the five unreported 2013 Lewis gifts involved a December 2013
entry fee for the 2014 P.F. Changs Rock n Roll Arizona Marathon & Half
Marathon at a cost of $282.98.
(AF, Tab 1, PAM, pp. 12). Again, standing
alone, this allegation would be insufficient due to the $350 reporting requirement
(AF, Tab 11, pp. 266, 272).
Nevertheless, in combining it with other 2013
unreported gifts, Cadys Declaration confirms his review of Lewiss December

11, 2013 email to the appellant, which forwards the race registration confirmation
to the appellant and which was paid by an individual with Lewiss billing address
and the last four digits of Lewiss VISA credit card number. (AF, Tab 71, Cady
Decl., p. 45). That email is also in the record. (AF, Tab 11, pages 230-32). I find
that the agency has proven this last gift, as well.
In sum, with respect to the Charge 3, I find the agency has proven the
following. For Specification A, I find that the agency has proven both of its
allegations regarding unreported 2012 Lewis gifts: (1) the $465.07 roundtrip
airline ticket between Phoenix and Vancouver; and (2) the $355.60 roundtrip
airline ticket between Phoenix and Portland, Oregon.
For Specification B,
regarding the unreported 2013 Kaiser Permanente monies, I find the agency has
proven the allegation, but only with respect to the hotel and airfare. As for the
five unreported 2013 Lewis gifts, I find the agency has proven the payment for
the $317.60 roundtrip airfare between Phoenix and El Paso, the $389.80 roundtrip
Attachment 3, p. 49

Exhibit 8, p. 75
50
airfare between Phoenix and Portland, Oregon, the Beyonc world tour tickets
and parking and the P.F. Changs Rock n Roll Arizona Marathon. The agency
did not adduce preponderant evidence regarding the $1015.60 roundtrip airline
ticket between Phoenix and Eureka because the underlying paperwork suggests
that the trip was taken by Lewis, not the appellant.
In response to these charges, the appellant asserts three arguments, none of
which carries the day. First, the appellant argues that she is unable to respond to
the merits of the allegations based on due process considerations. (AF, Tab 70,
Appellants Merits Brief, pp. 53-54). As ruled previously, although no adverse
inference has been drawn against the appellant, the agency has proven the charge
without any inference. The appellant also argues that the agency has not brought
a charge of failure to report gifts against any senior executive in the past five
years, or possibly ever (AF, Tab 70, page 54). Again, this speaks to penalty not
the legality of the charge.
Finally, the appellant argues that the agency neither alleges nor cites to
any evidence that Ms. Helman used the purported gifts at issue or that she did not
repay the purported giftor for those gifts. (AF, Tab 72, Appellants Merits Brief,
p. 18). I reject that argument. First, it is irrelevant whether the appellant used or
repaid the gifts because Form 278 requires disclosure of gifts that were
received by the appellant, regardless of whether they were used or repaid. (AF,
Tab 11, pp. 266, 272). See LaChance, 147 F.3d at 1371 (the agency need only
prove what it has charged in the specification). Moreover, the record supports the
conclusion that the gifts were accepted and utilized.
For example, when Mr.
Lewis emailed the appellant travel confirmation for her flight to Eureka, he wrote
For your upcoming Avenue of the Giants Marathon. Good Luck! (AF, Tab 11,
p. 211). The Kaiser Permanente records are clear about the payments made to
and on behalf of the appellant, with no suggestion of repayment. (AF, Tab 11,
pp. 227, 276-298). Likewise, when Lewis emailed the appellant to confirm her
trip to the Rock n Roll Arizona Marathon, the appellant responded by email
Attachment 3, p. 50

Exhibit 8, p. 76
51
Whoooo hoooo! (AF, Tab 11, page 230), and Lewis replied: Hope you feel
that way after you run the marathon . :) I think youre in Sedona two day[s]
later . :) (AF, Tab 11, p. 230).
Similarly, as detailed above, the OIG-
subpoenaed airline records confirm that the appellant took the flights. I find the
agency has adduced preponderant evidence in support of this specification, and it
is sustained.
The appellant has not established her affirmative defenses.
The appellant has argued from the start that the agency violated her preremoval due process rights by failing to give her meaningful notice and
opportunity to respond to the action pending against her, and also that the postremoval proceedings here violate her due process rights because of their
abbreviated nature. (AF, Tab 1, Appeal Form, p. 6, Tab 70, Appellants Merits
Brief, pp. 19-35; Tab 72, Appellants Response Brief, pp. 5-8). As I explained in
my December 8, 2014 ruling, violation of due process is a viable affirmative
defense in proceedings under 38 U.S.C. 713. (AF, Tab 25). The appellant
bears the burden of proving this affirmative defense by preponderant evidence. 5
C.F.R. 1210.18(b)(3).
The essential requirements of due process are prior notice and an
opportunity to respond. Cleveland Board of Education v. Loudermill, 470 U.S.
532, 546 (1985). As the Supreme Court has explained, dismissals for cause will
often involve factual disputes, and consideration of the employees response may
help clarify such disputes before any deleterious action is taken. In addition,
even if the facts are clear, the appropriateness or necessity of the discharge may
not be; in such cases, the only meaningful opportunity to invoke the discretion of
the decision maker is before the termination takes effect. See id. at 543. In order
for this opportunity to respond to be meaningful, the deciding official must
actually consider an employees timely response to a proposed action.
See
Hodges v. U.S. Postal Service, 118 M.S.P.R. 591, 594 (2012) (the deciding

Attachment 3, p. 51

Exhibit 8, p. 77
52
officials complete failure to consider the appellants written response to the
proposal notice before issuing a decision constitutesin and of itselfa
violation of minimum due process of law).
In this case, the appellant alleges that the deciding official had already
decided to remove her before she responded to the notice of pending action, thus
failing to give her response meaningful consideration, and thereby violating her
pre-removal due process rights. (AF, Tab 1 at 6; Tab 70, Appellants Merits
Brief, pp. 24-32).
Specifically, she argues that the agency was under intense
political pressure to remove her, and that the deciding official bowed to this
pressure without regard to the appellants side of the story. (Id., pp. 25-30). In
support of her argument, the appellant cites to numerous public comments and
other documents by and from individuals expressing their desire that she be
removed, some of which were quite harsh. (Id., pp. 25-27). Most specifically to
her, she cites a letter from Arizona Senators John McCain and Jeff Flake to
Secretary McDonald stating that [t]he clearest example of your failure to change
the culture at the VA is the continued employment of Sharon Helman, the former
director of the Phoenix VA Health Care system, (AF, Tab 48, pp. 7-8), a news
article quoting Representative Jeff Miller as stating that the agency needs to
move much more quickly to purge other disgraced personnel from its payroll,
including the appellant, (id., p. 13), a press release from Representative Millers
office stating that the agency needs to get serious about purging villains, (id., p.
32), a hearing before the House Committee on Veterans Affairs, in which
Representative Kirkpatrick stated that he and his constituents are calling for the
[appellants] immediate firing. We want that to happen immediately. (AF, Tab
49, p. 17). The appellant also cites public comments by Secretary McDonald,
stating that he intended to hold senior leadership at the Phoenix VAHCS
accountable through appropriate disciplinary action. (AF, Tab 45, pp. 16, 19-20;
Tab 70, Apppellants Merits Brief, p. 26).
Finally, she cites a letter from
Secretary McDonald to Representative Miller, explaining delays in the agencys

Attachment 3, p. 52

Exhibit 8, p. 78
53
taking action against the appellant and assuring him that the agency will move
swiftly, within the bounds established by law, to bring these matters to closure.
(AF, Tab 72, Appellants Response Brief, pp. 30-32). More probably than not,
the agency was under political pressure, amplified through the media, to remove
her from service, and Secretary McDonald responded to this pressure by assuring
Congress and the public that the agency was taking swift action to address the
situation.
Nevertheless, the agency submitted a declaration from Deputy Secretary
Gibson, the actual deciding official in this case, explaining that he took his job as
deciding official seriously, that he did not discuss the matter with any agency
employee apart from counsel and human resources staff, that no agency official
pressured him to reach a particular result, and that despite congressional and
media attention, he personally felt no pressure to take a particular action against
the appellant, and in fact, he does not allow the media or Congress to pressure or
influence him in the performance of his official duties as Deputy Secretary. (AF,
Tab 71, Agencys Merits Brief, Gibson Decl., pp. 57-59). He further explained
his decision-making process and the evidence that he took into account in
arriving at his decision, including the appellants response to the notice of
pending action. (Id., pp. 54-59).
Weighing the circumstantial evidence of political and media pressure
against the direct evidence of impartiality by the deciding official, I find that the
appellant has not proven she was deprived of a meaningful opportunity to respond
to the PAM before her removal. See Blake v. Department of Justice, 81 M.S.P.R.
394, 413-14 (1999).
While not wholly discounting the scrutiny to which the
agency has been subjected recently, and with respect to the appellant in
particular, I find insufficient reason to disbelieve the deciding officials sworn
claim of impartiality.
Absent effective cross examination or some kind of
smoking gun, overcoming that declaration is a high hurdle. I further find that,
notwithstanding the demands from individual congressmen that the appellant be
Attachment 3, p. 53

Exhibit 8, p. 79
54
removed from service, there is insufficient evidence to find that Deputy Secretary
Gibson ever promised any particular result in her disciplinary action.
Rather,
Secretary McDonald assured Congress and the public that the process would
proceed as quickly as practicable and that the course of events would be
determined by the law and the evidence. (AF, Tab 45, pp. 16, 19-20; Tab 72 pp.
30-32).
The appellant also argues that the agency deprived her of pre-removal due
process by giving her only 5 days to respond to the notice of pending action,
which she argues was insufficient under the circumstances.
(AF, Tab 70,
Appellants Merits Brief, pp. 31-32). I agree with the appellant that 5 days was a
short amount of time to respond to this notice of pending action. Nevertheless, I
do not find the response period was so short as to constitute, on its face, a due
process violation, i.e., lack of a meaningful opportunity to respond to the charges.
See Lee v. Western Reserve Psychiatric Habilitation Center, 747 F.2d 1062,
1068-69 (6th Cir. 1982) (3 days notice was sufficient to satisfy due process in
the hospitals termination action).
Furthermore, recognizing that due process is, to a large extent, situational,
I have considered the particular facts of this case, and find that the appellant has
not established that the 5-day response period that she was afforded violated her
due process rights. 13 See Mathews v. Eldridge, 424 U.S. 319, 335 (1976). ([D]ue
process is flexible and calls for such procedural protections as the particular
situation demands.) (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)).
Specifically, I find that the appellant was aware for over 5 months, since the May
30, 2014 notice of proposed removal, that the agency was pursuing disciplinary
action against her, and of the general bases for at least some of the misconduct
alleged in the November 10, 2014 notice of pending action. (AF, Tab 1, p. 9, Tab
13
The agency asserts the appellant actually had eight days to respond. I use the shorter
period to evaluate the appellants claim.

Attachment 3, p. 54

Exhibit 8, p. 80
55
18, p. 29). Thus, this is not a case where an employee was caught off guard. I
further find that the appellant did not request an extension of time to respond to
the proposal. She argues that the VAs procedures do not allow any discretion
in the time frame for [her] response, (Tab 70, Appellants Merits Brief, p. 31),
but this characterization is not quite accurate. The agencys written procedures
provide that the Senior Executive will have 5 business days after receiving both
the Pending Action Memorandum and the evidence file to respond in writing to
the Pending Action Memorandum. (AF, Tab 12, p. 248). The procedures do not
expressly provide for an extension of this time period, but neither do they forbid
it.
(Id., pp. 242-49).
Indeed, Deputy Secretary Gibson stated in his sworn
declaration that he offered the appellant an extension of time to respond to a

discrete issue for which he obtained additional information after the appellant had
submitted her response, but the appellant declined the offer. The appellant has
not offered evidence to rebut that point. Under these circumstances, I cannot find
that the 5-day response period deprived the appellant of due process.
Regarding post-removal due process, the appellant argues that the
abbreviated 21-day statutory adjudication period is unreasonable and calculated
to deprive her of due process, and that the Boards implementing regulations
deprive her of the opportunity to conduct meaningful discovery and develop the
record.
(AF, Tab 70, Appellants Merits Brief, pp. 32-35). See 38 U.S.C.
713(e)(1), (3), 5 C.F.R. 1210.12. As an initial matter, the Boards discovery

regulations are calculated, in part, to assist administrative judges, and the parties,
in complying with the statutory 21-day adjudication period.
truncated because the entire process is truncated.
Discovery is
Furthermore, the Boards
discovery regulations are alterable at the presiding judges discretion, something

not sought here. The problems the appellant cites are all children born of the
statute. Therefore, it seems the appellants due process challenges to these postremoval proceedings are all tantamount at a due process challenge to the statute
itself. I lack the power to rule on the constitutionality of the enabling statute
Attachment 3, p. 55

Exhibit 8, p. 81
56
which provides the authority to hear this case in the first place.
See Special
Counsel v. Bianchi, 57 M.S.P.R. 627, 632 (1993).

The appellant also argues that the agency committed harmful error in the
application of its procedures when it removed her. Harmful error under 5 U.S.C.
7701(c)(2)(A) cannot be presumed; an agency error is harmful only where the
record shows that the procedural error was likely to have caused the agency to
reach a conclusion different from the one it would have reached in the absence or
cure of the error. See, e.g., Stephen v. Department of the Air Force, 47 M.S.P.R.
672, 681, 685 (1991).
The appellant also bears the burden of proving this
affirmative defense by preponderant evidence. 5 C.F.R. 1210.18(c).

In this case, the appellant argues that the agency violated its written
procedure requiring that[t]he Secretary or his designee will give full and
impartial consideration to the Senior Executives reply, if any, and all evidence of
record. (AF, Tab 12, p. 248; Tab 70, Appellants Merits Brief, pp. 57-58). The
appellant argues that a poorly constructed charging document, the defeat of
several specifications by their own language or by the Agencys own evidence,
and the agencys challenge to the appellants response to Charge 1 as irrelevant
to these proceedings indicate that the deciding official was not fair and impartial
as required. (AF, Tab 70, Appellants Merits Brief, pp. 57-58). Although I agree
with the appellant that the agencys case suffers from some infirmities, I do not
think that these, or the agency attorneys litigation strategies during this appeal,
are particularly probative of the deciding officials state of mind. Once again, as
found above, I find insufficient reason to doubt Deputy Secretary Gibsons
impartiality as expressed in his declaration.
The appellant also points to
irregularities in the agencys action to take back bonus money she was paid, such
as not turning over documents to her that possibly should have been. She does
not, however, tie those actions to the deciding official here.
Because the
appellant has not shown that the agency committed any procedural error, I find
that she has not proven her claim of harmful procedural error.
Attachment 3, p. 56

Exhibit 8, p. 82
57
The appellant has not rebutted the presumption of the reasonableness of the
penalty.
The appellant first makes a legal argument about penalty mitigation, i.e.,
the practice of reducing an agencys chosen penalty to some lesser form of
punishment.
First she contends the Board was not authorized to actually
promulgate regulations.
She also contends that the all-or-nothing rebuttable
presumption approach to penalty review established by 5 C.F.R. 1210.18 is

unwarranted and that penalty mitigation is still permissible.
She notes that
penalty mitigation has been a long standing fixture of civil service law and that in
passing 38 U.S.C. 713 Congress did not expressly rule it out, but could have, as
it did with particular regulatory and statutory sections. She further points out that
Congress did expressly make appeals under Section 713 subject to the provisions
of 5 U.S.C. 7701, and 5 U.S.C. 7701(b)(3) provides the authority to mitigate.
(AF, Tab 70, Appellants Merits Brief, pp. 57-59). The appellant may or may not
have a fair argument. However, it will not be addressed. The time to raise a
challenge to the procedures used to decide this appeal was before the motion
deadline.
For its part, the agency argues that the Boards seminal penalty
consideration decision, Douglas v. Veterans Administration, 5 M.S.P.R. 280
(1981), is not applicable to this appeal under 38 U.S.C. 713. However, it also
concedes that some of the factors set out in Douglas were factors the Deputy
Secretary himself considered in arriving at his decision. (AF, Tab 71, Agencys
Merits Brief, pp. 29-31). As the parties were previously notified, whether the
appellant can rebut the presumption of the appropriateness of the penalty imposed
in this case, removal, will be determined by the totality of the circumstances.
Simply because certain types of circumstances were discussed in Douglas does
not render them inapplicable. Therefore, the Douglas factors will be considered
along with, as ruled earlier, any other factor the parties feel is germane, even
though it is not set out in Douglas.
Attachment 3, p. 57

Exhibit 8, p. 83
58
The arguments above aside, the appellant points to several factors in her
attempt to rebut the reasonableness of her removal. At the outset, it must be
noted the appellant is attempting to rebut a presumption.
For the proven
misconduct, the penalty of removal is reasonable unless and until the appellant
adduces sufficient evidence to prove otherwise. See 2 McCormick On Evidence
342, 344 (7th ed.).
The appellant correctly anticipated that Charge 1 would not be sustained,
and she contends those charges were the most serious against her as they were the
ones the Deputy Secretary noted in the PAM as making her not suitable for the
civil service. She wrongly anticipated, however, that Charge 2, Specification A
would not be sustained. However, as noted above, the charge that a manager
either took or allowed an action which could be perceived as retaliation is not
particularly serious because any time a manager takes some personnel action
against an employee who has engaged in some kind of protected activity, a
perception of retaliation could arise, subject to the legal contours of a retaliation
claim for the particular type of protected activity, even if there is no deliberate ill
intent or carelessness on the managers part. Thus, while that specification was
sustained, it is not particularly serious misconduct. She contends that in looking
at Charge 2, Specification B, and all of Charge 3, it is not serious misconduct and
removal is unreasonable, citing a case holding inadvertent offenses lessen the
seriousness of the misconduct. I must disagree.
In the context of the appellants position, as an SES Director of a sizable
health care system with a large budget, one must be scrupulous to avoid even the
appearance of a conflict of interest and to correctly report the things of monetary
value one receives from others. See Coons v. Department of Navy, 15 M.S.P.R.
1, 5 (1983) (Creating the appearance of a conflict of interest constitutes a
serious breach of trust. The Government clearly has an interest in prohibiting
such conduct, and in ensuring that its agents and employees are not compromised
in the performance of their duties as a result of any outside influences). The
Attachment 3, p. 58

Exhibit 8, p. 84
59
higher ranking one is, the more important those things become. See Walcott v.
U.S. Postal Service, 52 M.S.P.R. 277, 284 (1992) (an agency can hold a highranking employee to a higher standard of conduct for purposes of penalty), aff'd,
980 F.2d 744 (Fed. Cir. 1992).
Moreover, I conclude that the appellants
misconduct in Charge 2, Specification B and in Charge 3, was not inadvertent.

Sincerely forgetting about one of the plane rides purchased for her might be
understandable in some circumstances but, the notion she actually forgot them all
strains credulity.
Moreover, accepting gifts such as tickets to a popular
performers concert from a person who represents companies seeking to do

business with the agency was, more probably than not, not an accident or mistake.
I conclude the appellants offenses are serious and more likely than not,
intentional.
See Murry v. General Services Administration, 93 M.S.P.R. 554,
557-58 (2003); Wynne v. Department of Veterans Affairs, 75 M.S.P.R. 127, 13536 (1997) (the nature and seriousness of the misconduct and its relation to the
employees duties, position, and responsibilities, including whether the offense
was intentional are paramount considerations).
The appellant contends she a long a history of quality service with the
agency and, until this point, it was blemish free. See Alexander v. U.S. Postal
Service, 67 M.S.P.R. 183, 190 (1995) (long service with a good history weigh in
favor of the employee). Indeed, she avers she worked her way up from a low
ranking Program Assistant position to ultimately be chosen for a series of facility
director positions. She has not adduced evidence of that earlier work history,
however.
On the other hand, the agency also adduced no evidence that the
misconduct at issue here was the last straw on top of a history of problematic
behavior, and no such evidence is apparent from the record. Ultimately, though,
it is the appellants burden to prove what she asserts to rebut the penalty and, she

Attachment 3, p. 59

Exhibit 8, p. 85
60
has not established a long, positive work history by preponderant evidence. 14
Moreover, even if the appellant had adduced such evidence, it is outweighed by
the seriousness of her misconduct and its relation to her position. See id.
With considerations about notoriety of the appellants misconduct, I am
aware of none, insofar as the sustained misconduct is concerned. The press and
Congressional attention has been on the charges the agency failed to prove. This
weighs in favor of the appellant. Then there is the issue of notice. While I find it
more likely than not the appellant was not on notice that taking an action which
might be perceived as retaliatory could be misconduct on her part, I find she was
on notice that not accurately completing the Office of Government Ethics Form
278 was actionable misconduct, because the form advised next to the signature
box that by signing she was certifying that the statements she made on the form
were true, correct and accurate to the best of her knowledge. The form also states
in the following section that another official must certify that the appellants
answers avoid even the appearance of a conflict of interest.
See Ware v.
Department of Veterans Affairs, 76 M.S.P.R. 427, 435-36 (1997) (the fact that
the appellant was clearly on notice of the procedures to be followed to avoid the
misconduct support the removal penalty).
I conclude the appellant has little rehabilitative potential.
She has
steadfastly denied any wrongdoing in the course of this appeal and attempted to
deflect attention from her own actions by pointing to political considerations and
complaining the agency has been looking in to her private life. While it is likely
that the political spectacle which followed the revelations about how the agency
was conducting its business is what led the agency to apply scrutiny to her, taking
a close look was not unwarranted under the circumstances. Moreover, even if it
was somehow inappropriate for the agency to scrutinize the appellant in the
14
The appellant points to her Ex. 1 2, 4, 8. The Exhibit 1 to the brief is a

declaration from the appellant, but it does not discuss her work history.

Attachment 3, p. 60

Exhibit 8, p. 86
61
manner it did, when the agency did look, it found serious financial improprieties
on her part. They are not to be simply ignored. Her failure to take responsibility
for any of the sustained misconduct does not support a finding of rehabilitative
potential. See Dolezal v. Department of Army, 58 M.S.P.R. 64, 71 (1993) (in
holding an appellant had little, if any, rehabilitative potential, the Board noted
the appellant still does not understand the serious nature of his misconduct. He
still contends that his [misconduct] was none of the agency's business and that
He does not appear to understand that he is held to a higher standard of conduct
because of his SES status).
In sum, considering all the factors cited by the parties, including the
discretion the agency argues it should have under 38 U.S.C. 713, I conclude the
ones outlined above are most relevant. The appellant has not established that the
penalty of removal is unreasonable under the circumstances of this case. It must,
therefore, be upheld.
DECISION
The agencys action is AFFIRMED.
_/S/__________________________
Stephen C. Mish
NOTICE TO APPELLANT
Pursuant to 38 U.S.C. 713(e)(2), this decision is final and not subject to
any further appeal.

Attachment 3, p. 61

Exhibit 8, p. 87

Attachment 4, p. 1

Exhibit 8, p. 88

Attachment 4, p. 2

Exhibit 8, p. 89

Attachment 4, p. 3

Exhibit 8, p. 90

Attachment 4, p. 4

Exhibit 8, p. 91

Attachment 5, p. 1

Exhibit 9, p. 1
TRANSCRIPT
December 14, 2015
COMMITTEE HEARING
SEN. JOHNNY ISAKSON
CHAIRMAN
SENATE COMMITTEE ON VETERANS' AFFAIRS
GILBERT, ARIZONA
SEN. JOHNNY ISAKSON HOLDS A FIELD HEARING ON KEEPING THE PROMISE FOR ARIZONA VETERANS:
THE V.A. CHOICE CARD, MANAGEMENT ACCOUNTABILITY
AND PHOENIX V.A. MEDICAL CENTER
Roll Call, Inc.
1255 22nd Street N.W.
Washington, D.C. 20037
Transcript/Programming: Tel. 301-731-1728
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Copyright 2015 Roll Call, Inc.
All materials herein are protected by United States copyright law
and may not be reproduced, distributed, transmitted, displayed,
published or broadcast without the prior written permission of
Roll Call. You may not alter or remove any trademark,
copyright or other notice from copies of the content.
SENATE COMMITTEE ON VETERANS' AFFAIRS HOLDS A FIELD
HEARING ON KEEPING THE PROMISE FOR ARIZONA VETERANS:
THE V.A. CHOICE CARD, MANAGEMENT ACCOUNTABILITY AND

Exhibit 9, p. 2
PHOENIX V.A. MEDICAL CENTER, GILBERT, ARIZONA

DECEMBER 14, 2015
SPEAKERS:
SEN. JOHNNY ISAKSON, R-GA.
CHAIRMAN
SEN. JERRY MORAN, R-KAN.
SEN. JOHN BOOZMAN, R-ARK.
SEN. DEAN HELLER, R-NEV.
SEN. BILL CASSIDY, R-LA.
SEN. MIKE ROUNDS, R-S.D.
SEN. DAN SULLIVAN, R-ALASKA
SEN. THOM TILLIS, R-N.C.
SEN. RICHARD BLUMENTHAL, D-CONN.
RANKING MEMBER
SEN. PATTY MURRAY, D-WASH.
SEN. SHERROD BROWN, D-OHIO
SEN. JON TESTER, D-MONT.
SEN. MAZIE K. HIRONO, D-HAWAII
SEN. JOE MANCHIN III, D-W.VA.
SEN. BERNARD SANDERS, I-VT.
WITNESSES:
SEN. JOHN MCCAIN, R-ARIZ.
SEN. JEFF FLAKE, R-ARIZ.
CHUCK BYERS,
VIETNAM VETERAN
2

Exhibit 9, p. 3
NICOLE MORRIS,
NAVY VETERAN
KATHERINE MITCHELL,
FORMER EMPLOYEE,
PHOENIX V.A. HEALTH CARE SYSTEM
DAVID J. SHULKIN,
UNDERSECRETARY FOR HEALTH,
DEPARTMENT OF VETERANS AFFAIRS
THOMAS LYNCH,
ASSISTANT DEPUTY UNDERSECRETARY
FOR CLINICAL OPERATIONS,
KATHLEEN FOGARTY,
INTERIM DIRECTOR VISN 18:
SOUTHWEST HEALTHCARE NETWORK,
DAVID MCINTYRE,
PRESIDENT AND CHIEF EXECUTIVE OFFICER,
TRIWEST HEALTHCARE
SULLIVAN: We'll get started here in a minute.
The Senate Veterans' Affairs Committee oversight hearing will now come to order. I'd like the first panel
of witnesses to take their seats.
Good morning, everybody. My name is Dan Sullivan, I'm the U.S. senator from Alaska, a member of the
Senate Veterans' Affairs Committee and a veteran myself with 22 years of active duty and reserve
service as a Marine Corps infantry officer.

Exhibit 9, p. 4
Today's hearing is a continuation of oversight hearings we've been conducting and how the V.A. has
been implementing a series of laws passed in 2014. I'm very pleased to be joined by my distinguished
Senate colleagues, Senator John McCain, Senator Jeff Flake.
Alaska and Arizona are big states, proud states. While our winter temperatures might differ some, we
have many things in common, in particular, a large population of veterans.
As many of you know, Arizona has over 530,000 veterans making up over eight percent of this state's
population and I'm sure my colleagues from Arizona would agree that it's our strong population of
proud veterans that truly makes the states of Arizona and the states of Alaska, resource rich.
This morning, we are here to continue the important work of assuring that each and every veteran in
Arizona, in Alaska, and throughout the country gets the care they have earned and the care they
deserve.
Less than two years ago here in Arizona at the Phoenix V.A., our country found that our veterans here
and across the nation were not getting the care that they deserve and the care that they need and the
care that they've earned. From hidden wait lists and poor reporting, the V.A. was simply not doing its
job and veterans are falling through the cracks.
Rightfully, the country was outraged, our veterans were outraged and their elected officials in Congress
acted. In a few months, after these issues came to light, the Congress came together and passed a
Veterans Access Choice and Accountability Act of 2014, better known as the Choice Act. This bill was
passed by a very bipartisan majority in the House and Senate. And within a week of its passage, the
Choice Act was signed into law.
One of the many reasons I'm honored to be on this dais with Senators McCain and Flake today is that
they were two of the leaders in the U.S. Senate to make this happen. Senator McCain, in particular, has
been advocating for the Choice Card and Choice issues for years.
However, since this bipartisan effort to pass the Choice Act, the implementation of the law has been
rocky at best. Our veterans are still not seeing the quality of care of access to it that they deserve.
They're still waiting too long for appointments.
Twice, Congress has to had to correct issues with implementation since the passage of the Choice Act.
Once, improperly calculated distance requirements by the V.A. had to be changed in law. And again,
when the V.A. ran out of money to implement the Choice Act.
Thus far, we have seen that while choice is working in some areas, it is failing in other places like my
state of Alaska and is having serious implementation problems here in Arizona. I understand that the
implementation of such a large program like the veterans' Choice Act is difficult. However, the fact that
something is difficult cannot and should not be used for justification for delay or failure.

Exhibit 9, p. 5
Regardless of how challenging the task may be, our veterans always deserve the maximum effort and
the best results from the V.A. and from Congress. When the call went out for our veterans to serve, they
put their country first and answered the call.
We're here in Arizona today because as a nation, it is our turn to answer the call and put them first.
Today's oversight hearing marks the sixth one that the Senate Veterans Affairs Committee has held on
the veterans Choice program. The sixth one just this year. Three in D.C. and field hearings in Alaska,
Georgia and now Arizona.
The Committee felt it was particularly important to have such a hearing here given that many of the
problems were originally recognized here. And as I mentioned, the leadership from Senators McCain and
Flake in playing such an important role and devising the comprehensive solution to our V.A. problems
throughout the country.
I'd also like to mention under the strong leadership of the Veterans Affairs Committee, Chairman Johnny
Isakson of Georgia has sought to remind the senior leadership of the V.A. who they really serve, not
Congress, not the President, but our veterans.
So, we have an outstanding group of witnesses today and as you see, with regard to the first panel, we
have a former V.A. employee and a whistleblower who took a lot of courageous actions. It will be very
interesting to hear from her.
We have two -- and that's Dr. Mitchell -- two Arizona veterans, Mr. Byers and Ms. Morris, who's stuck in
a little bit of traffic but she should be joining us soon and I would like to welcome all the veterans who
are here today in the audience.
It's important to recognize that although we won't be taking testimony from everybody, we will have
the opportunity to hear from all of you if you would like to submit written testimony, you can do so at
this address. It's public_testimony@sullivan.Senate.gov and we can provide that again. I know that some
of the veterans here wanted to make comments. You can submit written testimony that will be part of
this official Senate hearing and we will certainly be reading that.
So, without further delay, I'd now like to recognize the Chairman of the Armed Services Committee, a
veteran, a war hero, my good friend, Senator John McCain for his opening remarks.
MCCAIN: Well, I thank you. I appreciate, Senator Sullivan, from the great state of Alaska being here to
chair this field hearing of the Senate Veterans Affairs Committee today.
Senator Sullivan is a proud Marine and he has worked diligently and tirelessly over the past year to
improve our nation security and fight for those who have served in uniform, veterans of this country are
fortunate to have Senator Sullivan advocating on their behalf.
I want to take the chairman of the Veterans Affairs Committee, Senator Johnny Isakson from Georgia
who is unable to be with us today. He's doing a great job as Chairman of the Veterans Affairs Committee
5

Exhibit 9, p. 6
and he is examining many things including how veterans are using, and in some cases, how the V.A. is
not helping the use of the V.A. Choice Card.
I'm grateful to the city of Gilbert for hosting us in this facility. Being here is very helpful to our having a
full discussion and I'd like to take this minute to recognize and thank the City of Gilbert for their support
of veterans through their various programs such as "Operation Welcome Home", in support of homeless
veterans through the Homeless Veterans East Valley Partnership. And I'd like to congratulate the City of
Gilbert who was recognized this year as being in the Top 5 Best Cities in the United States for Veterans.
I'll never forget the town hall forum I hosted in Phoenix where I heard directly from the families of four
veterans who passed away in recent months. They came and stood before a crowded room to tell their
stories. With tears in their eyes, they described how their loved ones suffered because they were not
provided the care they needed and deserved.
They recalled countless unanswered phone calls and ignored messages, wait times and delays,
mountains of bureaucratic red tape, while their loved ones, those who selflessly served their country,
experienced painful, debilitating, and ultimately fatal conditions.
No one should be treated this way in a country as great as ours. But to ignore the pleas for help and care
from those who have sacrificed on behalf of the United States is unconscionable. And we should all -- all
of us be ashamed.
The scandal at Phoenix then led to revelations of similar problems at other V.A. medical centers around
the country where bureaucrats were gaming the system to get better bonuses by denying care to our
veterans. This tragedy created a crisis of confidence toward the V.A., the federal agency that was
established to care for them.
I'm happy to note that Congress responded quickly in a bipartisan manner to this crisis. In a matter of
weeks, the House and the Senate passed the, quote, "Veterans Access, Choice, and Accountability Act."
This bill provided an unprecedented $15 billion in immediate emergency appropriations that was added
on the Veteran Health Administration's regular annual budget of about $60 billion to hire more doctors
and nurses and to issue the V.A. Choice Card for those veterans who could not get into a V.A. for their
health care.
The bill also gave the V.A. direct hiring authority so that all of the cumbersome rules and regulations for
bringing on board new federal employees could be waived to fill the vacancies. We will be discussing
more about the budget and resources provided to the V.A. in the next panel.
Congress also provided the secretary of the V.A. with nearly unprecedented ability to terminate senior
executives who fail to care for our veterans. No other Cabinet official has this powerful tool to ensure
performance and results from his department's top officials.
I continue to be disappointed that Secretary McDonald has not used this authority to its fullest extent.
As I have said, it is past time for accountability, and leadership at the V.A.
6

Exhibit 9, p. 7
I want to thank our witnesses today on the first panel. Dr. Mitchell, She's a former employee of the V.A.
Medical Center and a whistleblower. She'll have very interesting comments to make. Mr. Charles
"Chuck" Byers' a Vietnam veteran himself and an advocate for all veterans here in Phoenix. His ability to
receive care through the Choice Program is a success.
And finally, Ms. Nicole Morris who is still not here and I'm sure everyone in this room agrees we own a
solemn debt to those in uniform who fought on our behalf in faraway places.
I just want to make a brief comment on the makeup of our second panel which will consist of V.A.
witnesses as there has been a last minute change.
Last Friday, my staff was informed that the V.A. determined that a senior manager at the Phoenix V.A.
who was originally due to testify today, retaliated against a V.A. whistleblower. In light of this recent
information, he will not be testifying this morning while we determine what has occurred with this case.
I, needless to say, all of us take issue with whistleblower retaliation at the V.A. very, very seriously and
we've been discussing the matter with Secretary McDonald and especially in light of concerns about
systemic problems in this regard that the Office of Special Counsel raised directly with the President a
few months ago.
After today's hearing, Senator Flake and I are sending a letter to Secretary McDonald to find out exactly
what occurred in this retaliation case we were just made aware of and how it was handled.
With that in mind, we have a number of issues that more broadly impact Arizona veterans to cover and
many of those veterans are here today to tell us about their experiences. So today, we'll be focusing on
the Choice Card's implementation and continuing problems with excessive wait times that our veterans
are undergoing.
"For the 9 million American veterans who enrolled in the V.A. today, and for the families who lost loved
ones awaiting care that never came and still grieving their losses, it's time we live up to the V.A.'s
mission today to care for him who shall have borne the battle and for his widow and his orphan.
I thank you -- I thank you again, Senator Sullivan, for being here and I'm very pleased to note we did not
have this hearing in Alaska. Thank you.
SULLIVAN: Thank you, Senator McCain. As I mentioned, it's truly an honor to be on the panel with both
Senator McCain and Senator Flake who in my discussions with him over the course of the last year, I
know is fully committed to taking care of our veterans and, again, the two senators from Arizona played
such a leadership role in addressing the issues that it's an honor to be here with both of them.
So, Senator Flake, your opening statement.
FLAKE: Thank you, Senator Sullivan. Thank you for chairing this hearing and thank you for coming all the
way and bringing Alaska winter weather anyway with you.
7

Exhibit 9, p. 8
But I just want to say that from the beginning when the problems were long before that, Senator
McCain has been advocating for veterans and throughout this issue and Phoenix, V.A. was the epicenter
of this -- this latest problem that we had.
And Senator McCain from the beginning was pushing hard to make sure that veterans receive Choice
and that there's accountability. And so this hearing, this field hearing, is part of that. Glad to have had
the Choice Act pass.
But as Senator McCain said, and Senator Sullivan said, there are issues with its implementation. We
want to make sure that that goes forward also in light of the October V.A. inspector general report
noting problems still. In the urology department, in particular, at the Phoenix V.A., talking about
substandard care there and delays that may have contributed to the deaths of veterans.
We remained concerned and want to make sure that those issues are fixed. It's beyond unacceptable if
we're still having those kinds of issues. Obviously, I want to make sure that, as I mentioned, the Choice
Act continues to be implemented and that those problems that we had early on are dealt with.
So, thank you Senators Sullivan for coming here and thank you Senator McCain for pushing this issue all
the time and I can tell you, being in the Senate, Senator McCain, is always pushing veterans issues and
making sure that the veterans here and across the country get the care that they deserve. So, thanks for
being here.
SULLIVAN: Thank you.
And now we'll begin with our first panel. I would ask the witnesses to please try to keep the -- their
opening statements to five minutes. Our goal is to have each panel for about an hour.
And so, Mr. Byers, the floor is yours, sir.
BYERS: Thank you Senator Sullivan, Senator McCain, and Senator Flake.
Thank you for inviting me today to speak about the V.A...
SULLIVAN: Is your mike on?
BYERS: Is that better?
SULLIVAN: Much better.
BYERS: Sorry.
Yes. Thank you for inviting me today to speak about the V.A. Choice Card Management Accountability
and the Phoenix V.A. Medical center. And what we say, keeping the promise to Arizona veterans.
In August of 2013, I moved to Arizona from New Jersey. I was enrolled in the Philadelphia V.A.
Healthcare System. I knew I had to transfer my eligibility to the Phoenix V.A. Hospital Care System. And
8

Exhibit 9, p. 9
in September of that year, I applied to the Southeast Clinic in Mesa and was told that it would be at least
a year and a half before I could get a primary care doctor.
I was even told it might be sooner if I go down to Tucson V.A. I could not wait because I was receiving
medication from my V.A. in Philadelphia. But if the Dr's don't see you, they will not renew your
prescriptions. I went downtown to the Phoenix V.A. Hospital which is about 50 miles away from my
home and was told the same thing.
Then I spoke to an advocate and was able to get an appointment in about nine months. They told me
the reason for such a long wait time was due to a decrease in staffing and staff leaving for better paying
opportunities outside the V.A. System.
I was not satisfied and called the Office of Inspector General's office in Washington and filed a
complaint. In about two weeks, I received a call from the VISN that oversees the Phoenix V.A. System
and was given appointment for a Primary Physician at the Mesa Southeast Clinic. I know how to
advocate but there are a lot of veterans out here that do not. And some of them would just give up.
Now, I am officially enrolled in the Phoenix V.A. Healthcare system and I'm out there -- seeing my
primary care physician and receiving my medication. Before I left Philadelphia V.A., I was being seen for
a urological condition and should have a followup.
I requested an appointment for urology to my primary physician. I waited over a year for my request for
urology appointment and was contacted by TriWest to see an outside urologist.
I received excellent care with multiple visits from the outside group. At this time, the Phoenix V.A.
offered very little urological services and there were a lot of veterans that were referred out to this
group for their care. And after a followup visit, I was told that the urology practice has dropped their
contract with TriWest because of delayed payments for services provided. I understand that that issue
has been resolved.
The Phoenix V.A. Hospital now has taken back my urology appointments now and also in the future. I
feel the Phoenix V.A. Health Care System is improving and correcting some of the previous short falls.
But I am concerned that the level of care for veterans like myself will continue and not repeat some of
the problems that we've had in the past.
There are a lot of dedicated employees at the Phoenix V.A. System and they're starting to see more and
more veterans working in the Healthcare System. I think it's important to continue the Veterans' Choice
Card.
However, I feel that there's still barriers that prevent the veterans from using it. The language states, 40
miles rule to the closest V.A. facility that has a primary care physician.

Exhibit 9, p. 10
There are multiple COBOCS here in Arizona within those 40 miles. However, they cannot provide all the
services that are needed for the veterans and still have to travel great distances for care to the local V.A.
hospitals. Sometimes, this can be over 200 miles here in Arizona.
I understand no system is perfect and a lot of these programs are new but I think it's important that we
veterans keep the Choice Card for an added insurance policy for our earned and deserving health care
from our government.
And Vietnam veterans, we say, never will one generation leave behind another generation. Thank you.
SULLIVAN: Thank you, Mr. Byers.
Dr. Mitchell?
MITCHELL: I'm deeply grateful for the opportunity to testify today. I'm a former V.A. nurse and current
V.A. physician with over 16 years experience working within the Phoenix V.A. A little over one year ago, I
transferred to the -- from the Phoenix V.A. to the V.A. network office in Gilbert, Arizona. However, I've
maintained my Phoenix V.A. contacts.
In April 2014, following in the steps of Dr. Sam Foote, I became a public whistleblower to report
dangerous E.R. nursing triage, E.R. staffing shortages, whistleblower retaliation and facility scheduling
violations, among other issues.
In my opinion, not much has changed with these issues since that time except that the scheduling rules
are now being followed and there are certainly more staff in the E.R.
Throughout the last 20 months, Phoenix V.A. employees have privately contacted me to describe
instances of poor patient care, delays in care, violations of policy, and retaliation for reporting problems.
I was also made aware of significant problems for patients scheduling appointments through the Choice
Program.
Although I continue to advocate for improvements within the Phoenix V.A. E.R., in my current position,
I've been told that I'm not allowed to address issues that are still there.
The continued presence of dangerous triage conditions in the Phoenix V.A. E.R. as well problems in the
mental health clinical triage, was substantiated in a V.A. Office of Medical Inspector report or OMI
report that was released internally to the National V.A. in March of this year and publicly released in
September by the Office of Special Counsel.
This office V.A. report called the Phoenix V.A. nursing triage, quote, "A significant risk to public health
and safety," end quote. Although there were serious flaws in the OMI investigation, it's still found many
problems including grossly inadequate nursing triage, nurses who failed to perform EKGs when ordered
and failed to act upon orders for serious patient complaints such as chest pain. The triage in the walk-in
mental health clinic was substandard and nursing triage protocols were called inadequate.
10

Exhibit 9, p. 11
After this OMI report's internal release to the V.A. in March, the Phoenix V.A. E.R. nurses were trained in
a triage tool called Emergency Severity Index or ESI. Unfortunately, while ESI is a valuable adjunct to
triage care, ESI training does not teach triage symptom recognition nor imply a mastery of triage skill. In
fact, the ESI fits on the small slip of paper and consists of only six questions.
Watching the news, in my opinion, the Phoenix V.A. has misled the public into believing that ESI training
resolve the safety deficits in triage. Problems, however, still reported to me by Phoenix V.A. E.R. staff.
Despite my formal recommendations, there has been no in-depth standardized nursing triage training
that would give the nurses the broad knowledge base needed to effectively evaluate patient symptoms.
There are still no minimum qualifications to be a triage nurse. Nurses who jeopardize patients' safety by
not following patient care orders are still working in the ED or E.R. I've been told that there have been
additional episodes of unstable patients escaping from the Phoenix V.A. E.R. since February 2015. Ill
patients still wait too long, greater than six hours, to be seen. And the E.R. continues to be flooded.
And e-mail series of last week stated that all rooms were full and there were 30 people waiting in the
waiting room. This e-mail series also reported other conditions that were described in the e- mail as
quote, "A recipe for disaster," end quote.
I've also remained extremely concerned about delays for consult care and appointments. I've
encountered recent cases in the spring and summer where the failure to receive a timely V.A.
appointment or consult may have contributed to a veterans's death or at, a minimum, taken away
quality of life before the veteran died. I'm prepared to discuss some of these incidents today with the
committee if it so chooses.
Since the V.A. scandal erupted, there has been no significant change in the dysfunctional institutional
culture there. Several of the offending senior administrators have voluntarily left the Phoenix V.A.
without ever facing any consequences for their retaliatory behavior. Other unscrupulous Phoenix V.A.
administrators and supervisors remain in positions of power.
In fact, one administrator remains in a key leadership position, although he's caused problems in several
areas. According to a 2014 V.A. Office of Accountability and Review investigation, the same
administrator retaliated against a whistleblower.
Because you're Committee monitors the entire V.A., I want to make you aware that the issues of which I
speak are not only at Phoenix but potentially across the nation. The National V.A. has never established
standardized nurse triage training nor developed standardized nursing triage protocols even though
such training and protocols are readily available in the private sector at low cost or free.
Whistleblower retaliation is rampant throughout the V.A. Retaliation against physician whistleblowers
has driven physicians out of the Phoenix V.A., specifically, and elsewhere and is discouraging others
from applying.
11

Exhibit 9, p. 12
Because of time limits for this opening statement, I cannot go into detail regarding multiple other issues
including the dangerous design of the new E.R. that is obsolete even before it is built, gross difficulties
with telephone access within the Phoenix V.A., lack of digital faxes needed to avoid delays and record
receiving and the inappropriate switching of console-type without the ordering provider's approval.
I must say that I am grateful to the many dedicated Phoenix V.A. stuff both in and outside the Phoenix
E.R. who have brought forward the issues of which I've spoken today. the Phoenix V.A. has the potential
to be a stellar V.A. facility because of the staff but desperately needs your help to achieve this goal.
Thank you.
SULLIVAN: Thank you, Dr. Mitchell.
And I think we're -- I believe we're still waiting on Ms. Morris. And if she arrives, you can please let her
know she can join the witness panel. We will submit her written testimony which I have read, for the
record for this hearing. And now, what we'd like to do is begin with some questioning of the witnesses
and have a discussion of these issues and out of my respect for my colleagues from Arizona, I will defer
my questions until after they begin.
So, we will begin with Chairman John McCain.
MCCAIN: Thank you, Dr. Mitchell and if you pull that a little bit closer so that we can hear you a little
better.
Dr. Mitchell, you have watched the evolution of events and legislation and the Choice Card and all of
that since the beginning of the terrible scandal that began here at the Phoenix V.A. as we all know. What
would you say has been the degree of progress or lack of progress since that happened?
MITCHELL: The V.A. has made progress. It was so far down in the hole as far as being behind in its ability
to care for patients that any improvements is -- are greatly welcomed. However, there are still too many
patients waiting to be seen.
It's very difficult to get appointments to the Choice program so patients are no longer delayed waiting
on E.R. or Phoenix V.A. waitlist but they're delayed waiting on a Choice waitlist either through a lack or
problems or difficulty reaching them
There certainly has been more staffing across the board, physicians and other ancillary service
personnel, and so that's an improvement. However, there's still incredible difficulty getting things
scheduled in the V.A., consults that are needed are delayed because they're -- they do not have
adequate providers.
MCCAIN: I don't often talk about my own involvement but I negotiated with Senator Sanders for the V.A.
reform legislation that was passed overwhelmingly by both Houses of Congress. And I wanted the
Choice Card for everybody no matter what.
12

Exhibit 9, p. 13
And in the negotiations, we -- I had to agree to the 40-mile or time waiting list. Would you believe that
we should go back at the issue where the choice card and make it available for every veteran no matter
where they're geographically located where or any wait time?
MITCHELL: I think that the Choice Card is a great idea especially for the specialist for which the Phoenix
V.A. and other V.A.s are short staffed and for which there are considerable delays in care.
The V.A. interest structure is incredibly good. Although I'm talking about the cracks in the V.A. care, the
actual V.A. nationwide has millions of high quality episodes of patient care every single year. The
veterans that are able to get in to the system, in general, are very happy with the care and they get
better care than they would in the community.
I do think that the Choice Program needs to be restructured because veterans are still waiting and
whatever structure changes can be made to decrease the wait is important. The other thing is you need
to look at the reimbursement for choice providers. Part of the problem is not the fact that the Choice
can't make appointments, it's the Choice can't make appointments because they don't have providers
signing up.
The Choice reimbursement is much lower than the payments for non- V.A. care under other programs
and lower than Medicare. That should not be the case.
MCCAIN: Mr. Byers, do you have view on the Choice Card?
BYERS: Yes, I absolutely concur that we keep the Choice Card. And again, remove some of those barriers
that veterans are having difficulty in some of the language. The language is -- is still not very clear to a
lot of the veterans that we see.
When it works, it works well. And I can say that because I've used the Choice Card with TriWest and they
were able to get me a provider that provided the services for me. But I still feel that we should have the
Choice Card. It's an excellent -- an insurance policy for us veterans. And I think it's important that we
keep it.
MCCAIN: Well, I thank you both for being here. And, Dr. Mitchell, we will continue to rely on you. I
guess, just one final question, Dr. Mitchell, and maybe this isn't a fair question but I feel compelled to
ask it. Would you go to the Phoenix V.A. emergency room for care?
MITCHELL: Absolutely not. And there's a reason for that. There are physicians in that E.R. that are the
best in the State of Arizona. There are nurses that fill that E.R. that are the most professional I've
worked with. The problem is you have to get past nursing triage and you have to get past the flood of
patients.
Right now, the Phoenix V.A. Healthcare System doesn't have a good way of dealing with urgent care
patients. Patients that are not -- don't need emergency care but certainly have issues that can't wait till
the next business day or the third business day or whenever the clinics can schedule them.
13

Exhibit 9, p. 14
As a result, you have a whole pool of people bearing down on this very small emergency room and you
have to -- it dilutes the people that are really sick to the people -- getting care to them as opposed to
getting care to the people that can wait. There is no standardized triage training and without that, it is
the luck of the draw if you have a triage nurse that knows what they're doing.
And frankly, in my particular case, the nurses who retaliated against me by impeding my care for ill
patients, most of them still work in the E.R. and I don't trust their professionalism not to impede my
care.
MCCAIN: Thank you.
Mr. Chairman, I think I'd like to just add a comment for the record. We're deeply concerned. We
wouldn't be having these hearings, we wouldn't be passing legislation to try to fix it and on Veterans
Day, I went down to -- after the parade, I went down to Phoenix V.A. and people who are in the hospital
there are well treated.
We do have many dedicated people who are working there. There has been some improvement but
having said that, I think we should give credit to a lot of the outstanding men and women who are
serving there. But I think fundamental changes still have to be made in order to allow these dedicated
men and women who are working at the V.A. to exercise their full capabilities.
And right now, I don't think that that is exactly the case and if there's one issue I would like for us to
continue and you and I and Senator Flake have had numerous conversations with Chairman Isakson, is
to make the Choice Card completely available.
I thank the witnesses.
SULLIVAN: Thank you, Senator McCain.
Senator Flake?
FLAKE: Thank you.
Mr. Byers, just to get an idea how things have improved or haven't improved, if you were to arrive
today, just like you did a few years ago from New Jersey, not knowing what you know now about how to
navigate through the system, how long do you think your wait time would be for the same issues and
needs that you had? What would be the change today from what it was before?
BYERS: Well, I could answer that because I have a lot of veterans that come to me for eligibility and they
need to get in to the V.A. Healthcare System. They go through eligibility and at least within 30 days,
they're assigned a primary care doctor. That's what the appointment says and that's where they go.
FLAKE: And that would have taken how long when you got here?
14

Exhibit 9, p. 15
BYERS: Why, after I got here? It took me almost -- well, I got here in August and I saw a doctor in
November. But I was told that it would be over almost a year before I could even see a primary care
doctor.
FLAKE: OK.
BYERS: But the veterans today, at least in my CBOC or here in the Gilbert CBOC, the eligibility works very
well and if you're in the system, they can get you a primary care doctor within 30 days.
Now, the problem is you have a primary care doctor. But if you need any kind of specialty or anything
else that you have to have, that's where the bog down is.
FLAKE: All right.
BYERS: I have some people that have to wait six months for appointment.
FLAKE: All right. Thank you. I should have mentioned in my opening statement like Senator McCain, I
appreciate what the City of Gilbert does, the programs that they have and the efforts that they make to
make sure that veterans here are treated well and received the care that they can.
Now, Dr. Mitchell, you mentioned that the culture has not changed at the V.A. What will it take to have
a change in culture? Is that a long -- decades long process? How could we expedite that and make sure
that it changes faster?
MITCHELL: In my opinion, central office has the ability to stop whistleblower retaliation today. They just
haven't sent out the memo that specifically states the penalty for whistleblower retaliation. For
example, there is a significant amount of retaliation against physicians.
There are sham professional standards boards, basically peer reviews where they say the physician is
incompetent when they're not. These boards are held without notifying the physician of the
accusations, without giving them access to the patient records, without having an impartial board given.
Then these impartial board makes a finding, says the physicians is incompetent and either fires them or
fires them and reports them to their professional standards boards. There are very clear policies about
how professional standards boards are supposed to be done.
In the community, they're only done when there are serious concerns that a physician is incompetent. I
know of seven physicians in the V.A. system either current or former, that are -- have either undergone
these sham peer reviews or are currently undergoing them. They have not followed the rules in any
particular case.
All central office has to do all -- one that the undersecretary has to do is sent out a memo and says that
at this point, all professional standards board reviews are to be on hold until you get the memo that's
coming in 10 days and in that memo, we're going to specify that the rules need to be followed and
whatever finding your boards have, they have to be verified by an independent third party.
15

Exhibit 9, p. 16
I think that's important because there are physicians that don't practice quality of care that need to be -that needs to be covered. But right now, it's a tool for retaliation. It's not considered a prohibitive
personnel practice so the Office of Special Counsel won't get involved.
While because, because Phoenix administrators and because administrators elsewhere have retaliated
against physicians, this is becoming well known in the community and physicians aren't applying for the
jobs we desperately need for them.
Central office needs to come through, needs to state it stops -- it stops today and then have teeth to it
so every chief of staff, every service chief that is involved in the sham peer review is held accountable
immediately instead of just letting the physician fight on their own which can take years and be
financially and professionally devastating to the physician.
FLAKE: Thank you, Senator Sullivan.
SULLIVAN: Thank you, Senator Flake.
Mr. Byers, I want to follow up on a couple of questions. Can you explain a little bit about your -- the kind
of hand off when you went from New Jersey to Arizona. I'm sure that's, obviously, common for a lot of
veterans to be moving. How did that work?
BYERS: From New Jersey, you mean?
SULLIVAN: Leaving New Jersey? No, I didn't say that. But although I know this is a beautiful state so a lot
of people are -- a lot of veterans are coming here, just like my great State of Alaska. But how does that
work in terms of the handoff? In terms of the ability to actually just track veterans from one V.A. center
to another and are there -- are there lessons that you learn that we could focus on that can help
improve that handoff?
BYERS: Well, I think it would -- it would -- should be seamless, OK? You're in a V.A...
SULLIVAN: Was yours seamless?
BYERS: No. It wasn't -- it was seamless for me to contact and work with the Philadelphia V.A. while I was
here because I used My HealtheVet and My HealtheVet is a tool that we veterans can contact our
primary care physicians. We can instant message them and be able to talk.
But when they don't see you or when they can't, they cannot prescribe medications. So, the medication
was the main issue for me for that. So, that's why it was important for me to get a primary care
physician.
I had the eligibility. I'm priority one. I shouldn't have any problems whatsoever going into the V.A.
Healthcare System. But the wait time, because they did not have a primary care doctor, that's -- that
was the problem. That was not seamless at all.
16

Exhibit 9, p. 17
And then when you get in to the V.A. system, they don't seem to be talking to one another. And I
understand that we have this great computer system, this CAPRI system that everybody should be able
to look at the medical records and see.
It took quite a while for that to get transferred here to the Phoenix system. I'm sure that that process,
hopefully, has been improved. But the V.A. should be portable. It should be portable if I have to go
somewhere. I mean, the V.A. Healthcare System, I should be able to use it anywhere.
SULLIVAN: Let me -- another element about your testimony focuses on the delays and, obviously, that's
something that the Choice Act was focused on addressing these large, lengthy delays. But your written
testimony, you noted, you waited over a year for your urology appointment. And did it actually take a
year or did something intervene in the...
BYERS: I requested a urological appointment because I had to follow up. This is what the Phoenix V.A.
said when I came to Phoenix, please follow up. So, when I -- I went to my primary care doctor as we
talked and I said I would like to have a referral for urology.
I don't know at that time if urology was taking referrals. My understanding is that urology department at
the Phoenix V.A. was -- they were very, very thin. I understand there's probably one urologist at that
time and he was retired and he wasn't taking any new patients.
So, I stayed in the process until finally I complained and how I had to complain? I had to change my
primary care doctor. I changed my primary care doctor, I got a new doctor, and probably in all that time
with,with all what was happening here with the Phoenix V.A., that's when it went out the referral and I
got my TriWest appointment.
SULLIVAN: So, initially, you -- they told you one year, you complain and it took how long to get that
appointment?
BYERS: Well, it took me over a year to get my urological appointment.
SULLIVAN: I hope the panelists in our next panel are listening to all these incidences because I think that
a lot of the explanation has to come from the officials whether at TriWest or in the V.A., on why a year
and a half after the Choice Act, we still have veterans who are waiting a year, a year, for an
appointment. It's unbelievable.
BYERS: Senator Sullivan, this was before the Choice Act.
SULLIVAN: Let me talk to Dr. Mitchell. I want to follow up on Senator Flake's comments about changing
the culture. In, you know, Senator McCain mentioned and I think we all agreed that the V.A. has many,
many great employees who are very dedicated at the hospitals, throughout the country. But your
testimony -- your written testimony actually ends by saying you don't think the culture has moved in
terms of addressing it almost at all.
17

Exhibit 9, p. 18
And, you know, if you had a magic wand to address not only just the facilities that you're familiar with
here in Arizona but the V.A. more broadly, what would you -- how would you focus on starting to
address the culture that you are still saying has not really moved a bit in terms of being able to address
some of the huge systemic problems we have in the V.A.?
MITCHELL: I would make sure that everyone sees the consequences for whistleblower retaliation.
Frankly, any leader that's been confirmed to have done whistleblower retaliation through an OSC
investigation or an Office of Accountability investigation needs to be removed.
Right now, Senior Executive Service are held to a different standard of behavior than the rest of the
front-line employees and the front-line employees are grossly aware of that. Things that senior
administrators do and get away with, are things that front-line employees would be fired for
immediately on the spot. That needs to change.
It's not that there is a lack of people that are -- you're right, that are really good and dedicated to the
V.A., it's a probably that they are a few in positions of leadership that are making decisions for the entire
V.A. I am appalled at the lack of accountability for leadership.
And frankly, I'm really disappointed in Central Office that they haven't come down and truly held Senior
Executive Service. They should be held to a higher standard of behavior than the rest of us.
And until the -- until the leadership changes, I would also like to state although I -- Senior Executive
Service, I've certainly known several that were less than stellar, there is one, Lisa Freeman out of Palo
Alto, who rotated to the VISN office where I work and she embody some of the best characteristics of a
Senior Executive Service I've ever met.
And the central V.A. office needs to take recognition of leaders like her and have them train the newest
leaders coming up.
SULLIVAN: Let me ask you these two follow-up questions that relate to culture. You mentioned it,
Senator McCain mentioned that the Choice Act does provide the secretary of the V.A. with significant
authority to remove officials who have underperformed or performed in a way that should require their
termination.
Do you think that the V.A. is actually doing that or utilizing that authority and is that a way in which to
help change the culture which is to hold more officials accountable?
MITCHELL: I don't think the V.A. is investigating the issues of retaliation seriously enough. In my
particular instance, there was an office of accountability report in -- or review investigation. I was
interviewed last. The team refused to interview any of my physician witnesses which could describe
clearly multiple episodes of retaliation.
18

Exhibit 9, p. 19
The administrator who was involved was found guilty of retaliation in one instance when actually he was
guilty of retaliation in multiple instances that not only showed lack of leadership skills, but showed a lack
of basic medical ethics.
Someone who refuses to investigate when six physicians tell them nurses are impeding care for ill
veterans in the E.R. does not need to be in the leadership position and he lacks basic medical ethics.
SULLIVAN: What about the issue of funding? Since the implementation, since the passage of the Choice
Act, the V.A. has actually received an additional $15 billion to implement this new law on top of
significant increases in the V.A.'s budget over the last several years. Do you believe that it's a lack of
funding for the V.A. or is it another issue?
Some say it's a lack of funding, other have actually said that that might even be the problem in terms of,
I think, the budget has been dramatically increased. What do you -- how do you believe that the funding
issue either too little or too much relates to changing the culture?
MITCHELL: I think that the funding issue is part of the problem with the V.A., but certainly not the entire
problem.
SULLIVAN: Meaning they're underfunded?
MITCHELL: That they're underfunded. The V.A. provides tremendous high quality care and every time
we provide high quality care to a veteran, it attracts another veteran. And frankly, even in the E.R., when
they were able to get additional staffing to be able to care for more veterans, once they had more
staffing, more veterans came.
It's the same across the nation. There's been a 10 percent increase in appointments. I don't think the
public realizes how big the medical needs are for the veteran population.
What I do think that needs to be done also is that some of the funding needs to be better managed. Like
other people, I've listened to the media reports where I find that funding is being spent on public
relations that shouldn't be or other issues.
To give any more detailed answer, I'm not qualified because the issue is too complex. I do think there
needs to be an expert panel looking at it and a panel not of V.A. employees but of outside people such
as Secretary McDonald, he gathered a panel to look at issues and I think those would be invaluable to
seeing where the improvements need to be made.
SULLIVAN: Great. Thank you.
And, Ms. Morris, welcome. We're glad you're here and we'd welcome the opportunity to hear your
testimony. Please keep it to five minutes and then we'll also have a few questions for you. So, welcome.
MORRIS: Thank you.
19

Exhibit 9, p. 20
My name is Nicole Morris. I served overseas in Kuwait in 2004...

SULLIVAN: And please try to speak closely to the mike there. It's sometimes hard to hear.
MORRIS: I'm a Navy veteran. I served in Kuwait in 2004 and when I came home, I was told I was eligible
for V.A. benefits.
My first experience was a positive experience. There was a procedure that I needed done and they did
not do it at the V.A. and they're able to get me to a civilian doctor and have the surgery paid for. That
was a very positive experience.
However, a few years later, I was experiencing excruciating stomach pains and I did not have any other
medical coverage. I went to the E.R. at the facility downtown at the V.A. and I waited for two days in the
E.R. to be seen.
The first day, I waited until about one in the morning. I was told I wasn't going to be seen anytime soon.
And then I went home, came back. It was probably around 11 o'clock at night. I was finally seen.
When I was seen, it was very brief. They saw me in the back room for about five minutes, gave me some
pain medicines and told me to go on my way. There was not really an exam of what was going on with
me physically. There was no followup. I was just given pain medicine and told to go home.
There were other veterans in the E.R. at that time waiting that had more serious problems. I talked to
some of the veterans that had strokes, seizures, that were waiting in the E.R. for a very long time.
I was told there was priority list of -- it's not first-come, first-served, but it was a priority list and I was
down at the bottom of that priority list.
After that experience, I did not want to go back to the V.A. I'm a single mom. I'm a student. I don't have
any other health coverage and it was very disheartening for me.
I often have to pay out of pocket if I want to go to the doctors. I have to, you know, pay hundreds of
dollars out of pocket to go somewhere to the urgent care if I'm sick. I have tried scheduling
appointments. I no longer have a primary care physician. I never saw my primary care physician. It takes
month, two months, to get in if I want to.
It's just very disheartening. It's very stressful to try to get an appointment. I'm on the phone a long time
to wait to get an appointment. And, you know, I've been talking to fellow veterans and they share the
same stories.
I appreciate having the V.A. coverage, I really do. I'm thankful for it, but I think that there are big
improvements that can be done so I can be seen. I don't have to pay out of pocket. And so my fellow
veterans can be seen as well.
20

Exhibit 9, p. 21
SULLIVAN: Thank you very much for that testimony and thank you for your service. I will ask Senator
McCain or Senator Flake if they have any questions for Ms. Morris.
FLAKE: Just during that emergency room visit, I can't imagine being there two days with just an
intervening short time at home. What was said during that time? Did they come out and check on you
or...
MORRIS: Not at all. No. I often checked in with them.
FLAKE: And there were others in the same condition or similar condition or...
MORRIS: Worse. There was a gentleman who had a stroke, a mild stroke, that I was sitting next to and
he was there with his wife.
FLAKE: Did it seem to be just too few personnel there? What seemed to be the issue that you could -that you could tell?
MORRIS: I don't know. I don't know.
FLAKE: Dr. Mitchell, is that typical of some of what you've talked about there?
MITCHELL: Yes. What happens is you have to have -- there is a priority list. So the sickest patients are
supposed to be seen first. However, that depends on if the triage nurse is skilled enough to actually elicit
the appropriate symptoms. If not, then you're not put on the correct order and priority and you wait
longer than you should.
Stroke, there have been instances of which I've reported through the VISN office, the network office,
even this year where strokes were delayed in being evaluated, which there's a specific stroke protocol
and that should never happen.
There were strokes that the nurse didn't recognize as a stroke. There were strokes where a physician
didn't recognize it as a stroke and the veteran was sent home, only to return three days later with an
inability to walk, loss of vision, and having to be sent out to another E.R. or another facility that handles
strokes.
The other problem is that the E.R. is physically very small. Originally, it was eight beds and are -- I'm
sorry, 11 beds, eight rooms. Now, they've expanded so there are 22 rooms but they're still only
approximately eight beds that have cardiac monitoring abilities.
And so, if the facility is backed up as far as admissions, then those patients have to be held in the E.R.
and then everything else gets backed up. There -- the facility does not allow us to close the E.R. or at
least they didn't at the time that I was there for 10 years.
That means that although you can go on diversion and no ambulances show up, it doesn't stop very ill
patients from coming to the E.R. If they come to your E.R. and you do not have the capacity to care for
21

Exhibit 9, p. 22
that ill patient, our facility does not or at least at the time I was there, did not allow you to send them to
another E.R. where they could get care quicker.
And that is an issue that needs to be addressed because there are ill patients. What -- when you hear
from panel two, you're going to hear a lot of really good statistics and the statistics are good in some
areas. But there are certain things that they are not going to want to mention.
One of them is the greater than six-hour waits in the E.R., those are calculated on a daily basis. Another
thing they're not going to want to mention is the extreme delays for non-V.A. care consults which are
outside the V.A. that are greater than 90 days. And also the consult delays that are inside the V.A. that
are greater than 90 days. Those numbers are huge. They're huge across the nation.
The V.A. is trying to figure out how to close them all and get people the appropriate care. You're also not
going to hear about statistics like the all-employee survey where the Phoenix V.A. was in the dumps as
far as confidence in leadership and psychological safety which all play in to fear of retaliation.
There are some serious problems in the E.R. that need to be addressed. There needs to be a way of
managing this urgent care patients so that they get seen as well as the sickest patients. Right now, you
are ethically obligated to see the most sickest patients.
You rely on your triage nurse to be able to identify the sickest patients and if they make a mistake, then
the sick patients wait too long while their conditions deteriorate and that's been ongoing problem since
I was there in 2003. It just got worse when our numbers increased.
FLAKE: Thank you.
Ms. Morris, I had a question relating to your testimony where you talked about the limited hours
available to receive gender-specific health care as a huge inconvenience for veterans. Can you talk a
little bit more about that and the experience and what you would recommend to try and fix that?
MORRIS: Sure. For years, the, Well Women's Clinic has only been on a Wednesday. And once again, it
was very hard to get in to that if I needed something right away, I had to wait a month, two months. Just
recently, they actually changed it so the primary care physician can do the Well Women checkups if they
are designated to.
However, they have to be accepting new patients in their networks, they have to be your primary care
physician, so there are still, you know, not every -- not every woman probably has a primary care
physician that can provide that service and you'd have to wait on a Wednesday to receive that service
and the waiting list is long.
I think, you know, with the recent changes to step in the right direction to enable the primary care
physician to give those services. So, maybe if we could open it up so it's not just on Wednesdays at the
V.A. downtown. That would be a good suggestion -- suggestion as well if I can't get into my primary care
physician because right now they're only on Wednesdays.
22

Exhibit 9, p. 23
SULLIVAN: Great. Well, listen, well, I want to thank the panelist very much and I want to thank you all for
your service to our country and Dr. Mitchell to the V.A. and we will take a brief recess to move from the
panel number one and I want to invite the witnesses for the second panel to please come to the witness
table. Thank you again.
(RECESS)
SULLIVAN: I want to welcome the second panel. And the second panel will consist of Dr. David Shulkin
who is the undersecretary for health at the Department of Veterans Affairs. He's accompanied by Dr.
Thomas Lynch, the assistant deputy undersecretary for clinical health and Dr. Darren Deering and Dr.
Kathleen Fogarty -- I'm sorry, not Dr. Darren, that's the mistake I made there.
Dr. Kathleen Fogarty and also Dr. David Lynch who is the CEO of TriWest health care.
Dr. Shulkin?
SHULKIN: Good morning, Senator Sullivan, Senator McCain, Senator Flake. Thank you for the
opportunity to discuss the improvement of access to and timeliness of veteran's health care in the
Phoenix V.A. Healthcare System.
As you mentioned, Senator Sullivan, I'm accompanied by Dr. Thomas Lynch to my left who's the
assistant deputy undersecretary for clinical operations at V.A. and Ms. Kathleen Fogarty who's Acting
Director of the VISN here in the Phoenix region.
I'd like to thank Mr. Byers, Ms. Morris, for their service to the country and for their testimony today. I'd
also like to thank Dr. Mitchell for her testimony. We must depend on our employees to be vigilant about
potential sources of harm to our patients and to voice their concerns if a patient's safety is at risk and
they need to feel safe in doing so.
In September of 2014, the GAO issued its report on Management and Oversight of the Consult Process.
V.A. concurred with all six recommendations and is taking actions to address the concerns raised by the
GAO.
During this past year, VHA completed a national assessment of progress note completion and created
the technical capability to assess in complete consults. Solutions were implemented by extensive
national consult training within all the VISN's weekly national consult, calls, and a creation of a consult
training module.
In October of this year, V.A.'s OIG's Office of Healthcare Inspections delivered its evaluation of access to
care concerns in the urology service here in Phoenix. It was determined that Phoenix suffered a
significant urology staffing shortage and it's leaders did not have a plan to provide urologic services
during that shortage of providers.
To fill this need, VHA has hired six new urology employees since January of 2013. As of December 7th of
this year, the urology service had no patients waiting on it electronic waitlist. It had three consults
23

Exhibit 9, p. 24
waiting greater than 90 days, all three of those now have scheduled appointments and 99 percent of
new patients are seen within 30 days.
Appointment volume doubled from their previous year while the average wait time from the preferred
date was at three days, eight days lower than it was one year ago. Urgent care appointments in urology
are available the same day.
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 and only recently where we give additional evidence by the V.A. OIG that we had
been requesting for the last several months.
Until we've reviewed all of that relevant new evidence that we have received, we have been unable to
make a determination what disciplinary action may be warranted related to the patients' scheduling
wait list issues. These employees are going to remain on administrative leave.
V.A. has reached expedited settlements with the Office of Special Council on the whistleblower
retaliation allegations made by three employees at the facility. Since some of the subject officials in this
retaliation cases are the same as those in the patient scheduling wait time case, we have not issued
disciplinary actions related to these retaliation allegations.
VHA has taken a number of actions in response to the events in Phoenix such as building partnerships,
with care in the community providers, reducing wait times, holding a national stand down for access this
past November and adding over 630 full-time equivalent employees to the medical center.
In November of 2014, the former medical center director was terminated and on October 20 of 2015,
Ms. Deborah Amdur was appointed as the permanent director. Today is actually her first day. VHA is
continually monitoring wait times and making adjustments as needed to ensure that veterans have
access to the best care they rightfully deserve.
During fiscal year 2015, Phoenix V.A. increased completed primary care appointments by 7.72 percent,
mental health appointments by 18.38 percent, and specialty care by 15.25 percent. During this period,
Phoenix completed over 680,000 outpatient appointments.
Overall, the Phoenix V.A. has completed 95 percent of all patient care appointments in fiscal year 2015
within 30 days of the date the veteran preferred and the average wait time for all patients and primary
care has decreased to six days as of December 7th of this year.
Average wait time for all patients and specialty care is 9.1 days, mental health, 4.8 days, and urology
three days. On November 14, 2015, V.A. medical centers across the country including Phoenix,
participated in the first national access stand down. Prior to the stand down, there were 1,650 open
priority one level consults at Phoenix open greater than 90 days.
24

Exhibit 9, p. 25
After the stand down, there were just 91 priority consults that still needed to be addressed and were
authorized for care in the community. And I should say most of those, we've been unable to contact,
that's why there are now nine new ones still left open.
Although the intent of this effort was to reach those veterans with the most urgent care needs, we will
not rest until we fix our system in order to better serve the health needs of all veterans.
VHA is also improving access through extended hours into the evenings and weekends to leverage
limited space and enhance convenience for veterans. Designated patient care teams perform extended
hours on the rotational basis.
In October 2015, VHA delivered the new veterans Choice program to Congress, proposing improvements
for the health care delivery to veterans. The plan addresses enhanced partnerships between V.A. and
community providers to deliver care in the community more seamlessly.
With the new veterans Choice plan, enrolled veterans will have greater choice and ease in use of access
to health care services at V.A. facilities in the community. Through September 2015, contractors have
added over 9,100 Choice authorizations for approximately 7,200 veterans in Phoenix.
Additionally, the Phoenix V.A. created nearly 43,000 authorizations to veterans to receive care in the
private sector between October 1st 2014, September 30th 2015, a 45 percent increase in authorizations
when compared to previous year.
V.A. is committed to providing the highest quality care for our veterans who have earned and deserved
this care. Our work to effectively and timely treated veterans continues to be a top priority at the
Phoenix V.A. Health System and throughout VHA. We really appreciate Congress' support and look
forward to answering any questions you may have.
SULLIVAN: Dr. McIntyre?
MCINTYRE: Good morning, Senator -- good morning Senator Sullivan, McCain, and Flake. I appear before
you today on behalf of TriWest Healthcare Alliances nonprofit owners led by Blue Cross Blue Shield of
Arizona and are nearly now 2,500 employees, most of whom are veterans or family members of
veterans, to discuss the support that we are privileged to provide V.A. in 28 states in the Pacific,
including the great states of Arizona and Alaska as they execute their noble mission of caring for our
nation's warriors.
Our core job is to establish and provide our network and make sure that care is placed with it when it's
unable to be provided by V.A. because wait time or the care exceeds 40 miles from their home. I'm
pleased to appear alongside the team from V.A. led by new undersecretary for health, David Shulkin,
with whom I've been very impressed in the short time I've had the privilege of working in support of his
leadership. I would like to thank him for coming to the furnace and stepping in to lead the way.
25

Exhibit 9, p. 26
Most importantly, I'd like to say thanks to Chuck Byers and Nicole Morris and all the veterans in
attendance today for their service. We're inspired and humbled by your presence. Know that we will not
rest until the final refinements of choice were in place and the program has achieved its potential.
Mr. Chairman, I asked that my written testimony be accepted into the record.
SULLIVAN: Without objection.
MCINTYRE: General George Patton once said, "A good plan violently executed now is better than a
perfect plan executed next week." I can't speak to pre-April 2014, but all of us associated with the effort
since to ensure that access exists for veterans when and where it is needed here in Arizona and
elsewhere know firsthand the definition of a good plan violently executed.
In fact, it was a result of the collaboration that we were able to collectively, in Phoenix, work off the
waitlist of nearly 15,000 veterans as the country was learning about Phoenix and the fact that it was not
the only place where supply did not match demand.
Though the Department of Defense took nearly three years for the design and implementation of
TRICARE, the situation post April 2014 in V.A. called for a schedule far more aggressive. Two months for
design and one month for execution.
But I would say that our fellow citizens who bore on the cost of battle deserves such intensity. Senators'
initial success was achieved with the design, production and mailing of the choice cards to veterans with
more than nine million delivered.
The phone systems were fully operational on day one and care began to be placed in the community.
Most in industry said it would take 12 to 15 months just to do that but we all got it done in 30 days, a
good plan violently executed.
But that was a year ago. Since then, as you know, you and your colleagues in Congress have broaden the
definition of an authorization so that cancer patients, pregnant moms and post surgical cases will no
longer face a 60-day care authorization limit. You broadened the definitely of 40 miles and you've
removed the pre-August 2012 enrollment limit.
For our part, we in V.A. have been collaborating fully, implementing a program to support the Phoenix
V.A. medical center in its emergency room to ensure that when patients show up with mental health
emergencies and cannot be handled directly by V.A., that we are able to place them downtown. And we
placed 166 veterans in the last couple of months, providing them with needed protection.
We've identified and are working to close gaps in operation. We've developed and refined tools to
better support the needs of veterans providers in our staffs.
We've identified unmet demand and further expanded the provider network to bring care even closer to
home and we're identifying resolutions to claims challenge as they're needed just like we did in the early
days of TRICARE on our road to becoming the fastest and most accurate payer in the marketplace.
26

Exhibit 9, p. 27
While we're not done and we're not where we want to be, I think we're making progress. Today, there's
more than 11,600 providers in the network in Arizona, more than 156,000 across the 28 states that
we're privileged to serve; 300 to 500 are being added still daily. Secondly, the number of appointments
sought has grown from 2,000 in November 2014 to an expected 110,000 this month.
For those of you that did your math quickly, that's an increase of 4,900 percent in that period. In
Arizona, we'll be delivering on more than 4,000 appointments this month. Our staff has had to grow
from March in 400 to now almost 3,000 individuals.
Third, we've handled 3.8 million veteran calls in that period. Volume that's grown at 20 percent a month
with more than 690,000 in November alone. And our abandonment rate is a mere 3 percent. We're not
where we want to be at. We don't like it at 3 percent. We'd like it lower.
We want to be at the same industry leading performance that we were in TRICARE as validated by five
successive J.D. Power awards. Full success, not yet. However, we believe that together, we can get there
faster than we did in TRICARE and our nation's veterans deserve no less. So what's the work that
remains from our perspective?
First, we're implementing major improvements in provider experience that was developed in
collaboration with the providers from our network and our long-time partners at the ASU customer
service institute. Second, we're approaching the second round of demand forecasting with V.A. to
determine where network is optimally placed.
Third, we're soon going to train the behavioral health providers in our network on veterans experiencing
combat just like we did in the early days of the war under TRICARE. Fourth, we'll soon be implementing
the expansion and care authorizations for cancer, pregnancy, and post surgical patients.
Fifth, we're going to be embedding staff at the V.A. facility here in Phoenix and in Alaska to create -- to
recreate the successful service center concept that we developed in TRICARE. And sixth, we will be
relentlessly focused at the start of next year on gaining feedback from veterans and partnering with ASU
to improve veteran experience.
Senators Sullivan, McCain, and Flake, I believe the overall experience is getting better but we have a lot
of work to do before we achieve the vision that you and your colleagues had in the unprecedented
action to both authorize and fund the Choice Act in one bill. It is with deep humility and profound
respect for our fellow citizens who put it all on the line for our freedom that we continue to lean
forward.
The same is true for our runners who, by the end of March 2016 will have invested nearly $60 million of
their own money in an effort to scale, stabilize, and ultimately refine our operation so that we achieve
our potential and honor the commitments we made when we step forward to be the high performing
the V.A., partner to V.A. that we were to DOD and TRICARE.
27

Exhibit 9, p. 28
We take our responsibility very seriously for V.A., for veterans and this committee can rest assure that
our entire focus is on ensuring that our work in support of V.A. and the veterans who rely on them for
care is fitting of the sacrifices of our heroes and is worthy of their trust.
It is for this reason that we will remain impatiently focused on the path of violently executing the plan
until we achieve the success that we know is possible.
Mr. Chairman, this concludes my testimony.
SULLIVAN: Thank you, Dr. McIntyre. I know we have a number of questions.
I'll begin with Senator McCain.
MCCAIN: I thank you for your testimony. Dr. Shulkin, you've made a very favorable impression on those
of us who have had dealings with you. I believe that you are working very hard and I also appreciate
your efforts to improve our communication in relations with members of Congress including the
Veterans Affairs Committee. So, I thank you for -- and Dr. Lynch for coming out here to be at this hearing
today.
And Mr. McIntyre gives a rather optimistic view. In front of you is a chart that shows that, obviously,
veterans waiting over 30 days for appointments that kind of contradicts what Mr. McIntyre said.
Because if TRICARE was doing a great job that he claims, I would think that veterans waiting over 30
days for medical appointments would show a decline. Maybe you can respond to that? Would you
disagree with that chart or whether -- what your comments about that are?
SHULKIN: Yes. Thank you, Senator.
First of all, I do want to thank you as well. I think that all three of you, your willingness to speak out on
behalf of veterans and to work with us to improve the system is very much appreciated. And as you
know, Senator, I believe unless we do this together, we're not going to achieve the best results so I
thank you again.
The wait times that currently exist are not acceptable to V.A. and that's why we're working so hard to
make this better. The way that we are working is really a dual approach.
We are hiring additional staff in the Phoenix V.A. We've hired over 600 new employees. We are adding
space and we've recently added some space and have additional plans to add significantly more space.
We're improving our efficiencies. So, we're working internally. But most important, and again, thanks to
Congress because of your leadership with the Choice plan, we have really utilized care in the
community. We are up about 80 percent in terms of care in the community from where we were. Now
we have more to go and a lot more to go but I want to make one additional point.
28

Exhibit 9, p. 29
As we've been saying recently, V.A. and, really, I think Dr. Mitchell made this point, as V.A. gets better
and veterans regain their trust in the V.A., we're going to see more veterans coming back to get care in
the V.A. system.
So, our overall wait times are probably not going to go down. What we are really focused on now is
making sure that nobody who is waiting is being harmed. And so, we're focusing on those veterans who
need care with the highest priority, the most urgent care. And we can really tell you that that's what our
stand down was about, making sure people who need care are getting in to see V.A. or getting into care
in the community.
And so, we're not satisfied with that, Senator, but we are making sure that people aren't waiting and
being harmed.
MCCAIN: It seems to me then, from what you're saying, that wait times won't go down anytime soon.
That's urgent call to make the choice card universal.
SHULKIN: Senator, that -- I think that is accurate. We are not saying that wait times overall are going to
go down significantly at all. In fact, as we've improved the system, they may actually go up and that does
mean that we need to make sure that we are working better with providers in the community using the
choice program.
We are focused on improving the choice program, that's why we submitted a new plan to Congress that
asks for your help in making sure that we can make the system work better for veterans.
We need legislation for new provider agreements, we need the flexibility to have funding for care in the
community being to a single pot rather than separate programs and we want to make this program that
you gave us work even better than it's working now.
MCCAIN: Well, I don't want to belabor the point but I think that the prospect of veterans waiting over 30
days, no matter their medical need, is not acceptable. And if they had a Choice card, they wouldn't have
to wait 30 days, they could go out the next day and get an appointment with a physician of their choice.
Mister -- Ms. Fogarty, do you have full confidence in your emergency room today?
FOGARTY: Senator, thank you.
The emergency room has really experienced quite a lot of change over the past year and made several
improvements. I'd like to give you a sense of what those are.
We've had increased the E.R. in mental health staffing. We've increased the spaces Dr. Mitchell
identified and we have currently a construction project underway. We've added 24/7 social work
coverage that was not there before.
We've approved and recruited additional psychiatry to also have 24/7 coverage. We've added five
mental health R.N.s to the E.R. We've established a standard medical clearance protocol for patients
29

Exhibit 9, p. 30
that need to be admitted to our mental health. We really think our partners with TRICARE and TriWest
because they do allow us when we are full to have that community to be allowed to take our patients
that we couldn't have.
We've had standardized training and documentation for patient safety observers called sitters that are
sitting and watching any suicide ideation patients that come in. We redesigned four of those exam
rooms and a rest room to make them safer for suicide ideation patients to help prevent a serious
elopement.
MCCAIN: You are aware of the Clay Hunt Suicide Prevention Act?
FOGARTY: Yes, Senator, very much.
MCCAIN: Is that helpful?
FOGARTY: It is. And we thank you for that. And it is one of those that we worry the most about is those
coming and we really have to be the most diligent on those that come...
MCCAIN: Do you have some examples of intervention that have saved some lives? I don't ask for them
but you do?
FOGARTY: Absolutely. And I...
MCCAIN: Are physicians leaving the Phoenix V.A.?
FOGARTY: Are physicians leaving?
MCCAIN: Are physicians leaving the Phoenix V.A.?
FOGARTY: No, sir.
MCCAIN: They're not.
FOGARTY: We, as you saw here, of what we've netted of 600 FTE, we have hired over 160 on the VOCA
funding for us. I can give you some specifics on the physicians that we gave...
MCCAIN: That's all right. I just...
(CROSSTALK)
FOGARTY: We do have, by attrition, as you know, physicians do retire or do seek with family moves. We
have had...
MCCAIN: But you don't have...
FOGARTY: But we don't have...
30

Exhibit 9, p. 31
MCCAIN: You don't have physicians leaving the V.A. Thank you.
Mr. McIntyre, what has been your experience with the Choice Card and does it need to be made
universal?
MCINTYRE: I think that it's starting to take hold in terms of its use. The fact that there's a 110
appointments that are going to come our direction this month from 2,000 at the start of this indicates
that we're on the right...
MCCAIN: Mr. McIntyre, the fact there was only 2,000 at the start is because they didn't know about it.
MCINTYRE: Yes, sir.
MCCAIN: So, please, don't keep throwing that one up at me. I want to know whether you think the
Choice Card is -- should be made universal or not.
MCINTYRE: I think that people's ability to access care downtown when it's not available in the V.A. and
when it's not close to their home is exactly the right thing to be doing.
MCCAIN: And what impediments do you see to better usage?
MCINTYRE: I think that people understanding the program, first of all from an education perspective
which we all can share in is valuable.
Secondly, I think changing the kinds of policies that have been changed will help smooth this out. And
third, I think our operations needs to continue get stronger and more integrated in order to make this
process work more effectively.
MCCAIN: Thank you.
Dr. Shulkin, one of the sources of great frustration to many of us is especially you're in Phoenix is the
fact that it's undeniable that there was -- there was really people who did not do their job. Otherwise,
we would never have had 50 veterans who were on a non- existent waiting list.
And yet, to our knowledge, maybe you can help us out, there's only one person, one person that has
been removed from office. People don't understand that. When 50 people die on a non-existent waiting
list and there's only one person that is held responsible and many others are on, quote, "administrative
leave" with full pay paid for the taxpayers.
Please help us out on that one.
SHULKIN: Senator, we hear that frustration loud and clear. There's no question about that. We did
remove the director as you said. We've placed two other officials on administrative leave.
The V.A. would like...
31

Exhibit 9, p. 32
MCCAIN: So, that means paid. That means they're being paid?
SHULKIN: Paid administrative leave. 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 and the OIG just 30 days ago gave us 10,000 additional
pages of evidence on this individuals and last week and additional thousand pages.
As soon as we can go through that evidence, we are committed to making an action December 9th,
Deputy Secretary Gibson testified before the House Committee and said we are no longer going to wait
for OIG to act. V.A. will act independently as soon as we can and we're committed not to putting
additional people on administrative leave but we will detail them to work.
If the taxpayers are paying these individuals, they need to be working and those are changes in the way
that we're going to be dealing with this in the future.
MCCAIN: Why, thank you, but I would remind you what you know and that is the Senior Executive
Service is a unique situation as opposed to your average civil servant. And the senior in SES people are
eligible for many benefits and rewards for excellent performance.
But they're also liable or can be fired and removed from office with much less reason than if they were
an ordinary member of the civil service.And many of these individuals who were in charged are
members of SES and yet that option has not been exercised. Maybe you can respond to that?
SHULKIN: Yes. Since Secretary McDonald was sworn in July of 2014, there have been eight SESes
removed by the secretary and that option is available to him. I think that we are all firm believers, the
secretary, the deputy secretary, myself, in accountability. We have articulated that we believe that we
must do this principally based. There has to be evidence to match the actions or the punishment or the
reward.
And so, we're making sure that the evidence does match this. We hear you loud and clear and V.A. is
committed to moving quicker. We will not wait for OIG actions in the future because it's very important
that people understand that if people aren't following our values, that they don't belong in the V.A.
MCCAIN: Thank you and I thank you, Senator Sullivan.
I just want to repeat again, Dr. Shulkin, you have been, I believe, admirably involved with members of
Congress and communicating with us and being frank in your assessments and that is appreciated by
members of this committee. I thank you.
Thank you, Mr. Chairman.
SULLIVAN: Thank you, Senator McCain.
I want to make a quick comment just on what he mentioned. Mrs. Fogarty, the Clay Hunt Suicide
Prevention Act which was the first bill that I cosponsored in the U.S. Senate named after a young marine
32

Exhibit 9, p. 33
sniper who suffered through despair and did not get the service that he needed from the V.A. and
ended up taking his own life.
And the number one cosponsor of that bill in the Congress which passed unanimously was Senator
McCain and that's what he was referring to. So, talk about an issue that really matters. That suicide and
the one member of the U.S. Senate who's led on that more than anyone is Senator McCain.
And I'm glad to see that that is having an impact because there's nothing worse, nothing worse than
having, whether it's a Vietnam vet or a vet from Iraq or Afghanistan coming back, experiencing
depression and despair and having nowhere to go. And that is probably our highest responsibility to take
care of those veterans.
Senator Flake?
FLAKE: Thank you.
Ms. Fogarty, if Ms. Morris were to go to the V.A. today, the emergency room, like she did before and
present the same symptoms, what would be her experience?
FOGARTY: Well, first, I would like to acknowledge how disappointing to hear those statements of a
veteran coming to our emergency room and having that wait. It is -- it just is not what our standard of
care should ever be.
And today, I believe that she would have a very different experience of what we have improved and
have made I would also believe that there is that opportunity with the Choice Card that she could seek
care in a private facility and have that reimbursed as well.
FLAKE: But if she were to go down to the E.R., her wait time in the E.R. itself would be considerably
shorter and she would have a different experience since she had before?
FOGARTY: I would -- I would truly hope that is the experience because that's what we are working
always to have exceptional experience and have done great things in our emergency department to
make that experience be.
FLAKE: The issue -- the issue...
SHULKIN: Senator Flake, let me just add. The average wait time in our Phoenix ED from the time that you
register to when you see physician or provider, the average is 35 minutes.
But that's an average and you will still find times in the emergency department where there critically old
patients and patients like Ms. Morris that have a critical illness, we'll wait a lot longer than the patient
wants to.
This is a national issue with emergency department overcrowding. And so, we wouldn't want to say that
this will be our experience but there would be times where patients will wait.
33

Exhibit 9, p. 34
FLAKE: All right. Thank you.

Dr. Shulkin, I, like Senator McCain, believe we need to get to a point where the Choice card is used
universally and not with restrictions on mileage or whether there's a clinic or whatever else but that gets
to kind of -- the not -- the whole issue here at how much choice can the V.A. withstand.
If a significant number of veterans choose that opt-in, at what point does it impact the ability of the V.A.
to have the funds and resources to operate its facilities and then to have the level of care that veterans
should expect? Are we close to that tipping point and does that is that why we have the restrictions that
we do? Can you kind of explain that conundrum that we're in?
SHULKIN: Sure. Senator, very complex issue as you said. But, first of all, as I previously said to Senator
McCain, we are very grateful for Congress' leadership in providing us the Choice Program. We think it
was the right thing to do and we want to make this program work better for veterans.
We know too many veterans have experienced the complexity of it, the confusion, the lack of
knowledge about it as have been mentioned. And we are committed, as Mr. McIntyre said, to making
this program work.
We have submitted what we think is a very thoughtful plan to Congress that we delivered approximately
a month and a half ago that lays out how we want to take the original choice legislation and make it
work better and we need your help, we need provider agreements as soon as possible.
We need the flexibility to make these spending easier for us to serve veterans and care in the
community. We are very much in support. V.A. has been providing care in the community for years, over
$10 billion of our care was spent -- of our dollars was spent for care in the community.
So, our plan, we think is a very thoughtful balance of keeping the V.A. strong because America needs a
strong V.A. and serving veterans by allowing them the ability to seek care in the community with the
highest quality providers.
FLAKE: Mr. McIntyre, has the V.A. done enough to advertise the Choice plan among veterans and to
ensure that they understand their rights and ability to access private care?
MCINTYRE: I think the V.A.'s done a remarkable job over the last couple of months of really stepping up
the focus in that space. Part of the thing we're all hampered by...
FLAKE: That implies that it's only recent phenomenon?
MCINTYRE: No, I -- at the very front end, you know, we had 30 days to stand this up. it's hard to educate
people internally and externally in an effective manner. And there's been a real effort within the V.A. to
figure out what populations need to be reached and how do we do that collectively more effectively.
What I'll tell you, though, is part of the challenge we all face is that the policies haven't yet stabilized for
how this all works and what you access and what are the limitations are.
34

Exhibit 9, p. 35
And I would encourage that once that's done by essentially what's going to be the end of January is that
there's a dramatic new push by everybody, including the media and members of Congress, ourselves in
the V.A., to make sure that people really understand what it is that they have.
It's rather remarkable. We have providers all over the state so that if you live in a rural area, the number
of primary care providers that are accessible to you is rather dramatic.
And you have new rights under the Choice Program to actually go and seek care in the zip code in which
you reside, not to have to drive a long distance in order to get that care.
FLAKE: Thank you, Mr. Chairman.
SULLIVAN: Thank you, Senator Flake.
I want to echo Senator McCain's comments about Dr. Shulkin. For the audience's knowledge, he came
on board as the undersecretary, the number three official at the V.A. just in August. So, as I've said,
certainly didn't cause these problems.
He's someone from the private sector, accomplished doctors around hospitals. He wants to do what's
right to fix the problems and he is aware that the Committee, though, will not be standing by if we don't
see that the problems are being fixed.
So, Dr. Shulkin, I did want to follow up on what Senator McCain talked about on accountability. And I
think it's really important for members of Congress, but more importantly, members of our veteran
community across the country, to see that something is being done.
You mentioned about, you know, we hear you loud and clear is what you said to Senator McCain. I was
disturbed by reading a recent article in the "Washington Post" on a House Veterans Affairs Committee
hearing just last week with Deputy Secretary Gibson not sounding like he is hearing us loud and clear at
all.
He said, quote, when asked about who -- when asked about accountability of members of the V.A., he
was pushing back saying. "You can't fire your way to excellence and my many years in the private sector,
I've never encountered an organization where leadership was measured by how many people you fire."
Quote, "We won't administer punishment based on OIG opinions, referrals to the Department of Justice
recycled and embellished media accounts or external pressure. It's simply not right." He called some of
these cases, quote, "Failures of judgment but not ethical breaches."
So, last week, the number two guy in the V.A. sounded like he was pushing back against Congress' very
legitimate questions about who is being held accountable in the V.A.
So, I think one of the things that we would want you to do is take back to the deputy secretary and the
secretary of the V.A. saying I certainly don't think that that kind of -- those kind of statements are
appropriate. It doesn't sound like he's getting the message at all loud and clear.
35

Exhibit 9, p. 36
So, how many -- to go back to go back to Senator McCain's question -- how many V.A. officials in the last
two years over all these scandals in wait times and our veterans not being treated the way they should
be, how many V.A. officials have been terminated from their job?
You've come from the private sector. You have a very, very stellar record in the private sector. I know
that the hospitals you've worked at would be firing a lot of people had things like this happen like
happened in Phoenix. What is the number?
SHULKIN: Senator, as you said, I've been in the system relatively new, you know, only a few months. I
will tell you, I spend a fair amount of my time with Deputy Secretary Gibson and Secretary McDonald
talking about these issues.
I will tell you, these are two of the finest leaders I've ever worked with in my career. They take this very
seriously and I don't think -- I don't think that's an accurate representation of the Deputy.
SULLIVAN: I was simply quoting him.
SHULKIN: Yes. Absolutely. What -- where the deputy stands on this, I know the secretary as well is that
we are committed as leaders and I stand right with them that we are going to take a look at the
evidence and we're going to make decisions about who deviates from values and policies and we are
going to hold our employees accountable.
What we're not going to do, we're not going to have people tried in the press and tried through
allegation. We're going to treat people fairly because that's the way you run great organizations.
The day that you asked for, eight SESes have been removed since the secretary was confirmed in July of
2014 and 2,100 employees have been terminated. And we will continue to hold people up to these
accountability standards.
But we're going to use the evidence and what the deputy said in that hearing was that he welcomes
anybody else, a member of Congress to come and look at that evidence and show him if we're not
making good decisions. But he's going -- he's going to uphold his leadership responsibility and I stand
with him on that.
SULLIVAN: 2,100 V.A. employees have been terminated for wrongdoing since these scandals?
SHULKIN: Since July of 2014 when the secretary was confirmed.
SULLIVAN: Perhaps, for the record, you can provide us the details...
SHULKIN: Yes, sir.
SULLIVAN: ... on those and the eight that you mentioned and those have been fully terminated or as
Senator McCain mentioned, on leave?
36

Exhibit 9, p. 37
SHULKIN: No, those -- those SESes have left service. They have either been terminated, have resigned, or
chosen to retire.
SULLIVAN: So, I'd like -- for the record, the details on all of those for the Committee's...
SHULKIN: Yes, sir. Be glad to do that.
SULLIVAN: ...review. Thank you.
Another quick question is something that you and I saw in Alaska that I continue to see. Then I think it's
something we need to work on, where I still see veterans who have come up to me talking about
appointments they've had, and you and I saw this when we were up there, that have been approved by
the V.A. and somehow the reimbursement is not happening in such a way where these veterans are
now being sent to collection agencies.
I'm still seeing that. I'd like to get your commitment to work with the committee to put a halt to this.
The idea that a veteran gets approved by the V.A. for an appointment, goes to it. The provider, either
through Triwest or the V.A. doesn't reimburse what's happened with regard to who's providing the
service.
And then that agency is collecting upon the veteran is outrageous. And you saw it when we were up in
Alaska. I'm still seeing it. I'd like to get your commitment to work -- both of you, Dr. McIntyre, on this
issue which just obviously as enormous stress for our veterans when a collection agency's calling them
and saying they owe a $50,000 bill.
SHULKIN: Yes. first of all, I heard this with you. Absolutely. It's outrageous. We do not want that to be
happening where if the V.A. authorizes care, the veterans should not be held accountable for that. You
have my commitment. That shouldn't be happening.
I would like to get the names and the specifics of anybody that you're hearing from any of your offices
and we will intervene to make sure that that does not happen.
SULLIVAN: Thank you.
Dr. McIntyre, you mentioned in your testimony that the relationship between the V.A. and TriWest has
matured substantially. What more needs to be done to develop that relationship in a way that
ultimately does what you're supposed to be doing which is benefiting our veterans?
MCINTYRE: Senator, I'd like to thank you for that question. I'd also like to state that I too am committed
to making sure that if you have cases where veterans are getting build inappropriately by providers that
we'd like to understand what they are so that we can work those issues out and we will do that in
support of Dr. Shulkin.
With regard to the maturation of this program, we believe that the inner threading relationship that's
starting to develop at the ground level is really important. And one of the things that we're going to be
37

Exhibit 9, p. 38
launching in Alaska, as you know, effective January 11th, is the opportunity to have a joint service center
at the ground level.
I won't tell you that it's one thing for us to have policy-based discussions and operational gap discussions
up at the top. But it's quite another thing when you get down do the deck plate where veterans are
being served on a day-to-day basis.
And your concept, which were also going to be rolling out, Senators McCain and Flake here in Phoenix,
of having an integrated service center that's located close in proximity to the veteran couldn't be more
right on the money.
From the standpoint that you could walk a veteran down the hall after an appointment in the V.A.,
educate them about choice so that there is no lack of understanding, give them some materials and find
out what their preferences are in terms of appointments, how they'd like to be contacted and like as
exactly what we ought to be doing.
And, Dr. Shulkin, our organization and our entire teams are working to make sure that that's going to get
prototyped in both Alaska and Phoenix.
So, are you -- are you looking at, though, in terms of your call centers which I know have been a big
enormous issue with regard to frustration for veterans across the country because there's not a
localized component.
So a veteran from Arizona calls and I don't know where your call centers are located but Arizona or
Alaska and they're having issues. Are you looking to start localizing and integrating those call centers
throughout the country?
SHULKIN: Great question. Thank you for the question, by the way. When we started Choice, we had 30
days to go from a blank sheet of paper to full on operations on November 5th. We had to hire 850
people but we didn't know the number until we were 10 days out.
So we turned to a third party vendor that supports other organizations in managing backup in their
contact center operations. That was separate from how we were running our operation in PC3. We took
all the calls, directed them to that organization.
We've been weaning our selves off of that. When we came to the conclusion in the summer, when we
were at 3,700 appointments a month that we were going to face a meteoric rise in demand.
We now, tomorrow, we'll announce in El Paso, the 10th operation center. Eight of them are now up and
fully operational. The one that serves Arizona is right here near Gilbert. It's in Tempe and we have a
number of employees here.
The operation for Alaska is served out of Puyallup which serve very effectively Alaska in PC3. And then
what we're doing is we're inserting on a test case to start with these customer service staff at the local
level integrated with the V.A. staff, much like we did in TRICARE.
38

Exhibit 9, p. 39
So, if you could think about it, it's a hub and a spoke operation. So, you have a hub that sub geographic
in it's location and you have these nodes, facility by facility by facility. That's how we hit world-class
service in TRICARE.
Our intention is to roll out the same, be done with that, by the beginning of March and that's the
trajectory that we're on.
SULLIVAN: Thank you. Just so on the pilot program, we've talked about in Alaska. When is the date that
that's going to be implemented?
SHULKIN: So, there's three phases. The first phase was to take all calls and route them into Puyallup for
Alaska. That happened right after the hearing in August that we were at together.
The second phase is to place staff co-located in service center within the Anchorage V.A. and we're also
going to have other staff in Alaska on the ground in Fairbanks and probably in south east. That will go
live January 11th.
And there, as we will do in every other location we're going to roll this out, we're taking seasoned staff
that already know the market and the will go there first and then we will hire right behind that so that
we can make sure that we don't miss a beat.
The third phase, as you know for Alaska and unique to Alaska, is that the scheduling configuration will
change. And we'll have more engagement between the V.A. staff in Alaska and the veterans and the
providers in that community and we're in the process together of finishing the design of that so that
that will next be able to roll out.
SULLIVAN: May I ask a final question? Mr. Byers talks about the problem with providers being
reimbursed and how there was an issue of the lack of reimbursement and then all the veterans who had
appointments that provider doing urological services were going to be dropped.
Have you -- both of you have been focused on making sure that those kinds of things don't happen,
that's a key element of the Choice Act and if the providers have any kind of clarity, it's going to be
difficult for them to provide the services they need to our veterans.
SHULKIN: Yes. Senator, I'll be glad to start and if Mr. McIntyre wants to add to this, that's fine.
Actually, TriWest does a very good job of paying its providers. I think, if I'm not correct, you're close to a
100 percent within the 30 days. So, this is actually a problem for V.A. because TriWest pays the Choice
bills, V.A. pays the care and the community bills.
We have not been doing as good a job as we need to, in my opinion, in paying our providers. Coming
from the provider side where I spent my life when you give us service, when you see a patient, you
deserve and expect to get paid.
39

Exhibit 9, p. 40
We're at about 75 percent payment within 30 days. We have antiquated rules and antiquated systems.
We've asked for some help in this in simplifying the care in the community funds from Congress because
we need this to get better.
Our new plan says that we're going to take a look at V.A.'s ability to pay and make a build-buy decision.
Because quite frankly, we either need to invest and improve a lot better on our payment or we need to
get out of the payment business and give it to people who know how to do this.
So, the status quo is not acceptable. Here in Phoenix, we frankly have two large of an accounts
receivable for your big systems and like Banner or Dignity and your other providers. We have our teams
on site here in Arizona working out those payments right now because it's not acceptable to me that
providers have to wait this long.
MCINTYRE: And if I might follow that -- and thank you for the kind comments -- we have our own
challenges from time to time in this space. My dad was a doc. He served as an Army doc in Vietnam. And
then went on to operate in private practice including in the great state of Alaska as an ophthalmologist.
And what I'll tell you is that it's really important, as we discovered in TRICARE, to make sure that the
payment is timely and accurate because we're asking people to stretch themselves and take this patient
population which they very much want to do, make it as little bit bureaucratic as we can and make sure
that the timing of the payment works right.
What I'll tell you is we're gaining on where we want to be but we're not there yet. And we're spending a
lot of time with providers trying to figure out where the gaps are so that we can make sure that we're
able to give feedback to the V.A. on operations changes that we want to make and that they might think
about making.
And we're collaborating very closely on that. The banner situation, we own a part of it, the V.A. owns a
part of it and we're working together very closely to try and resolve those issues and I'm confident that
we will.
Here's what I'll tell you. We are at 95 percent plus for clean claims within 30 days. That's one year in. It
took us longer to get there in TRICARE.
And what I'm going to commit to you, all of you and to the veterans that we're privileged to lean
forward for at the side of V.A. and the providers in this community and elsewhere, we will get this right.
We'll get it right together but it's really important that it's right so that people don't feel like, well, the
bills not going to get paid over here, so I'm going to send the veteran to collections in order to be able to
pay my bills.
The second thing is in urology, in Phoenix, Arizona, when the furnace lit off in April, we ultimately came
to find that of the 14,700 on the waitlist, 3,300 of them were urology patients. At the time, there were
72 urologists in Maricopa County.
40

Exhibit 9, p. 41
The V.A. had us on speed dial. We rolled up our sleeves together, we figured out how to design the
demand capacity mathematical process together which we're using to grow out network together across
the 28 states in the Pacific, and we figured out what it would take to place providers, how to do it on a
severity basis and make that happen.
And I had, while Chuck was testifying, I had the information pulled with regard to his experience.
Because it was a while ago, I was having a hard time remembering it.
We received his care request from V.A. on June 10th. We had him appointed on the 17th of June. And
the practice that saw him took more than 50 percent of the 3,300 urology patients and processed them
within seven weeks. They should be sainted.
And their patients agreed to step side in their calendars and serve people like Chuck. Chuck got seen
initially on the 20th, three days after he was appointed. That's the way they should work and there's
providers in this community, in your great state and all over this country that said I don't want to replace
the V.A.
Nut I'll be there if I'm needed, just hand me a few. And like what we did in TRICARE, let me take care of
them and then make sure that I get paid properly for the work that I've done and on time.
And that's our commitment. And I know from the work that I've done with these three, that's our
collective commitment in terms of where we want to be and we want to get there as fast as we possibly
can.
SULLIVAN: Well, they should be sainted but they're not going to continue to be committed to our
veterans unless they're reimbursed. So, I think that's a key issue.
Senator McCain?
SHULKIN: And they have been and they're still in the network.
MCCAIN: I want to refer you, Dr. Shulkin, back to that chart about -- that shows the veterans waiting
over 30 days. The Phoenix V.A. line is roughly double that of the national average. That obviously, is very
disturbing to anyone who represents the State of Arizona that we should be almost double the
percentage your people who are waiting over 30 days.
We're not proud of the fact that this whole thing really was ignited by what happened at the Phoenix
V.A. I would hope that -- that extraordinary efforts would be made at least to bring that orange line
down to the blue line. It's -- that part of it is really something that's not acceptable to those of us who
care about our veterans in Arizona.
SHULKIN: Senator, not acceptable to me as well. As you know, the country is experiencing a shift from
V.A.s that were in the Rust Belt down to areas like Arizona that are very attractive for veterans who,
particularly who are retiring.
41

Exhibit 9, p. 42
We saw a 6 percent increase in unique veterans using the Phoenix V.A. last year. So, we're growing. We
have to plan for that and that's in part, making this more difficult. But we will not rest until we add
capacity. We have 738 positions we're recruiting for today. We're adding new space.
We just -- our new director started today. We need stable leadership in order to make this work. I have
extreme confidence in our new leader to be able to do this and I can assure you, extraordinary efforts
are what we're going to do to get this fixed.
MCCAIN: Thank you. I want to again, thank the senator from Alaska for being here as one of the most
important members of the Veterans Affairs Committee to conduct this hearing. I thank you, Senator
Sullivan.
SULLIVAN: Thank you, Senator McCain. I want to thank the witnesses from both panels. I want to thank
my colleagues. It's an honor to be up here on the dais with Senator McCain, Senator Flake.
Two leaders in the entire U.S. Congress on these issues, as I mentioned earlier, their names are on the
legislation that we're talking about. And I think that that's great for not only Arizona but for the country.
And finally, I want to thank our veterans who joined us today. I assure you, as Dr. Shulkin said, this
committee but the entire U.S. Senate will not rest either until we have addressed these issues in a way
that is faithful to the service you've provided our great nation.
So, I will mention one more time if there are those of you in the audience who are interested in
submitting written testimony to this hearing for the Veterans Affairs Committee in the U.S. Senate, the
e- mail again is public_testimony@sullivan.Senate.gov. You have two weeks in which to submit that
written testimony. That would be Monday, December 28th.
This hearing is adjourned.
END
Dec 21, 2015 13:22 ET .EOF
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SHAW BRANSFORD & ROTH P.C.

December 28, 2015

VIA ELECTRONIC MAIL AND FEDEX

Testimony on Behalf of Lance Robinson

Dear Chairman Isakson and Ranking Member Blumenthal:

The Honorable John Hardy Isakson

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

The Honorable John Hardy Isakson

The Honorable John Hardy Isakson

The Honorable John Hardy Isakson

The Honorable John Hardy Isakson

TESTIMONY ON BEHALF OF LANCE ROBINSON

1. Summary of Investigations and Known Outcomes

Testimony on Behalf of Lance Robinson

Testimony on Behalf of Lance Robinson

Testimony on Behalf of Lance Robinson

Testimony on Behalf of Lance Robinson

Testimony on Behalf of Lance Robinson

Testimony on Behalf of Lance Robinson

Testimony on Behalf of Lance Robinson

Testimony on Behalf of Lance Robinson

Testimony on Behalf of Lance Robinson

Testimony on Behalf of Lance Robinson

Testimony on Behalf of Lance Robinson

Testimony on Behalf of Lance Robinson

Testimony on Behalf of Lance Robinson

Testimony on Behalf of Lance Robinson

Testimony on Behalf of Lance Robinson

Testimony on Behalf of Lance Robinson

Testimony on Behalf of Lance Robinson

UNITED STATES OF AMERICA

DATE: December 22, 2014

Debra L. Roth, Esquire, Washington, D.C., for the appellant.

Testimony on Behalf of Lance Robinson

Therefore, both parties claims are

decided based on the evidence they adduced to support them.

Testimony on Behalf of Lance Robinson

She later transferred to Hines, Illinois as the director of the

(Id., p. 28). The appellant was also generally responsible for

Testimony on Behalf of Lance Robinson

Testimony on Behalf of Lance Robinson

By memorandum dated December 10, 2012,

Testimony on Behalf of Lance Robinson

The focus was Dr. Mitchells 16-page letter to Senator

According to the Issue Brief, Dr. Mitchell

disclosures of personally identifying patient information that was outside the

The memorandum counseled Dr.

Thereafter, many politicians took interest in the

(AF, Tab 35, Ex. s, Schweikert Letter, p. 22).

Testimony on Behalf of Lance Robinson

At the same time, however, the President announced the need to

Testimony on Behalf of Lance Robinson

The OIG identified numerous veterans who were on unofficial wait

lists, but not on the official EWL. (Id., p. 78);

PVAHCS senior administrative and clinical leadership were aware

As a result of using inappropriate scheduling practices, reported

The emphasis by Ms. Sharon Helman, the Director of PVAHCS, on

Testimony on Behalf of Lance Robinson

We identified over 3,500

additional veterans who were waiting to be scheduled for appointments. Those

accomplishments were inaccurate and unsupported. (Id., p. 144). Fifth, were

On that issue, the OIG

offered recommendations, but there were no formal conclusions. (Id.).