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Martin v. Department of Veterans Affairs

United States District Court, S.D. West Virginia, Beckley Division

September 1, 2017




         This is an action seeking judicial review pursuant to 38 U.S.C. § 7462 of the final administration decision of the Principal Deputy Under Secretary for Health. This decision sustained the findings of the United States Veterans Administration (“VA”) Disciplinary Appeals Board (“DAB”) concerning disciplinary issues relating to the professional conduct of the Petitioner, Russel Martin, P.A., while employed as a physician's assistant at the Veteran's Administration Medical Center (VAMC) in Beckley, West Virginia. The Court has reviewed the Petitioner's Petition for Review of Administrative Order of the Undersecretary of Health (Document 1), the Petitioner's Appellate Brief (Document 25), the Respondent's Brief (Document 26), the Petitioner's Reply (Document 28), and the entirety of the administrative record.[1] For the reasons stated herein, the Court finds that the decision of the DAB and the Principal Deputy Under Secretary for Health should be affirmed.


         The Petitioner, Russell Martin, was employed as a Physician's Assistant (PA) at the Beckley VAMC's Occupational Health Department. Mr. Martin was appointed to his position under 38 U.S.C. § 7401 and began working at the Beckley VAMC in or around 2003. As part of his duties in the Occupational Health Department, Mr. Martin was required to perform pre-employment physicals on newly hired employees. In 2012, in an action unrelated to the current matter, Mr. Martin was disciplined in the form of a five-day suspension for abuse of a patient and conduct unbecoming.[2]

         The allegations from which the disciplinary actions at issue stem occurred in 2014. In or around July 17, 2014, a new Beckley VAMC employee, D.B., came to Mr. Martin for a pre-employment physical. D.B. alleges that the physical started out in routine procedure, and that Mr. Martin asked her normal questions on whether she had high blood pressure, diabetes, or any other serious health issues. (A.R. at 599.) However, D.B. alleges that during the course of her pre-employment physical, and without explanation, Mr. Martin unbuttoned her pants, placed his hand inside her pants and her underwear, and ran his fingers across her genitals and private area to her inner thigh. (Id. at 203, 207; 599.) D.B. testified that she was “shocked” and “uncomfortable” and that it was not until she clinched and stiffened up that Mr. Martin informed her he was checking her femoral pulse. (Id. at 203, 207.) D.B. further alleged that, after this incident, Mr. Martin informed her that an electrocardiogram (EKG) was necessary, and returned to the exam room with an EKG machine. (Id. at 599.) According to D.B., Mr. Martin then placed his hand up the back of her shirt and unclasped her bra without asking her permission. (Id. at 208, 599.) D.B. also alleges that, at no point during the physical did Mr. Martin offer a chaperone to be in the room. (Id.)

         At first, D.B. did not report the incident. However, after speaking with her coworkers and a supervisor, she filed a complaint with the VA Police in September of 2014. (Id. at 202.) In response to D.B.'s complaint, and because her allegations included sexual misconduct, the VA's Office of the Inspector General (OIG) launched an investigation into Mr. Martin's alleged actions. After a thorough inquiry, the OIG declined to pursue any criminal charges. However, in February of 2015, Ms. Karin McGraw, the director of VAMC Beckley, convened an Administrative Investigation Board (“AIB”) to investigate the matter of Mr. Martin's conduct and make any findings, conclusions, and recommendations concerning any administrative action to be taken regarding Mr. Martin. Ms. McGraw appointed three VA employees, all PAs and all stationed at VAMC healthcare facilities other than VAMC Beckley, to sit on the AIB. The AIB conducted interviews of sixteen witnesses, including Mr. Martin, his supervisors, random VA staff on whom Mr. Martin had also performed pre-employment physicals, and D.B. herself. In the course of their investigation, another VAMC Beckley employee, C.A., [3] alleged that Mr. Martin also placed his hand down her pants in an attempt to allegedly check her femoral artery pulse without permission and without any explanation. (Id. at 609.) C.A. also alleged that Mr. Martin did not offer or ask a chaperone to be in the room during the physical. (Id. at 608.)

         On April 17, 2015, upon completion of the investigation, the AIB issued a Report of Investigation wherein it concluded that Mr. Martin engaged in inappropriate touching of two female patients during pre-employment physicals, unprofessional conduct, inappropriate professional practice, inaccurate documentation, failure to document, and breach of patient privacy. (Id. at 33-44.) On July 17, 2015, Mr. Martin's direct supervisor, Ms. Lisa Ward, sent Mr. Martin written notice advising him of the findings of the AIB and that the VA proposed he be discharged as a result of his conduct. (Id. at 22-28.) Ms. Ward explained the five charges on which his proposed discharge was based and included specifications with each charge. (Id.) Ms. Ward also explained that the penalty of discharge in Mr. Martin's case was based on consideration of his actions, the “Douglas Factors, ”[4] and the disciplinary action against Mr. Martin from 2012. (Id.) Ms. Ward provided Mr. Martin with an opportunity to review the evidence file compiled by the AIB during its investigation. (Id. at 26.) She also explained to Mr. Martin his right to submit both an oral and written reply to the notice of proposed discharge to Ms. McGraw “showing why the charges are unfounded and any other reason why [his] discharge should not be effected.” (Id.)

         Mr. Martin chose not to submit a written reply to the proposed notice of discharge, but did provide an oral reply to Ms. McGraw. (Id. at 17.) After considering Mr. Martin's oral response, the evidence in the report, and the pertinent factors, on September 23, 2015, Ms. McGraw informed Mr. Martin by memorandum that she would discharge him from service based on the AIB's recommendation. (Id. at 11-15.) Ms. McGraw also included in her explanation of decision Mr. Martin's right to appeal his discharge to a DAB. (Id. at 14.)

         On October 19, 2015, Mr. Martin appealed his termination to the VA Under Secretary for Health and requested a formal hearing before a DAB, arguing that the adverse action taken against him was inappropriate and should not have occurred. (Id. at 963-970.) On October 27, 2015, the VA convened a DAB and appointed three medical professionals from VAMCs across the United States. (Id. at 5-7.) The DAB held a two-day hearing on January 27 and 28, 2016. (Id. at 589-853.) After taking testimony from ten witnesses, including Mr. Martin, D.B., and C.M., and evaluating the AIB evidence file, the DAB issued its Board Action on March 10, 2016. (Id. at 856-76.) The DAB sustained four of the five specifications regarding the charge of unprofessional conduct; six out of the ten specifications regarding the charge of inappropriate professional practice; and one of the two specifications regarding the charge of inaccurate documentation. The rest of the charges were overruled.[5] (Id.) The DAB ultimately held that the decision to terminate Mr. Martin was a reasonable penalty supported by a preponderance of the evidence. (Id.) The Principal Deputy Under Secretary for Health reviewed the DAB's analysis and findings, as well as the evidence and testimony, and on May 13, 2016, issued a memorandum executing the decision of the DAB and affirming Mr. Martin's termination. (Id. at 856.)

         Shortly thereafter, on May 21, 2016, Mr. Martin filed the instant action petitioning this Court for review of the Under Secretary's order. Both Mr. Martin and the VA have filed their memoranda, and the petition is fully briefed and ripe for review.


         Pursuant to 38 U.S.C. § 7462(f)(1), a VA employee appointed under 38 U.S.C. § 7401(1) may appeal to a district court a DAB decision:

In any case in which judicial review is sought under this subsection, the court shall review the record and hold unlawful and set aside any agency action, finding, or conclusion found to be-
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(B) obtained without procedures required by law, rule, or regulation having ...

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