United States District Court, S.D. West Virginia, Beckley Division
MEMORANDUM OPINION AND ORDER
C. BERGER, UNITED STATES DISTRICT JUDGE.
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. For the reasons
stated herein, the Court finds that the decision of the DAB
and the Principal Deputy Under Secretary for Health should be
AND FACTUAL BACKGROUND
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.
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.
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.,
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.)
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, ” 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.)
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.)
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. (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
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
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
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 ...