Lerner v. Shinseki et al

Filing 36

MEMORANDUM OPINION by Senior Judge Thomas B. Russell on 10/10/2013; an order will issue separately with this opinion. cc:counsel (TLB)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:12-CV-00565
GUY M. LERNER

Plaintiff

v.
ERIC K. SHINSEKI, et al.

Defendant

MEMORANDUM OPINION
This action is brought pursuant to 38 U.S.C. § 7462(f) for judicial review of the
final decision of the Disciplinary Appeals Board relative to the suspension issued
against the Plaintiff, Guy M. Lerner, M.D. Plaintiff has submitted his brief, (Docket
No. 31), the Defendant, the United States Department of Veterans Affairs, has
responded, (Docket No. 32), and Plaintiff has replied, (Docket No. 33). This matter is
now ripe for adjudication. For the reasons that follow, the Court will set aside the
decision of the Disciplinary Appeals Board and vacate the penalty imposed.
BACKGROUND
Plaintiff Guy Lerner (Lerner) is a Kentucky-licensed physician employed by the
Department of Veterans Affairs (VA) pursuant to 38 U.S.C. § 7401(1) as a full-time
permanent physician at the Robley Rex Veterans Administration Medical Center
(VAMC) in Louisville, Kentucky. In his Complaint, Lerner named as defendants the VA
as well as Edwin Earl Gaar, III, M.D. (Gaar), the VAMC’s Chief of Surgery; Wayne L.
Pfeffer (Pfeffer), the VAMC’s Medical Center Director; Eva M. Egolf (Egolf), who
serves as a patient advocate at VAMC and an administrative assistant to Gaar; Christy
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A. Rowzee, a supervisory human resources specialist at the VAMC; and Jennifer Vaught
(Vaught), a human resources specialist at the VAMC.

In its April 26, 2013,

Memorandum Opinion and Order, the Court dismissed each of Lerner’s nine numbered
claims against the individual named Defendants; however, the Court concluded that
Lerner’s appeal of the Disciplinary Appeals Board’s (DAB) decision was properly
before the Court, reasoning:
VA physicians, such as Lerner, are afforded procedural
protections when they experience a “major adverse action” as
defined by 38 U.S.C. § 7461. A suspension qualifies as a major
adverse action. Id. § 7461(c)(2)(B). Further, the major adverse
action was the result of “professional conduct or competence.”
Id. § 7461(c)(3); (Docket No. 1-1, at 2 (“The action being
appealed is a major adverse action. The charge upon which the
action is based, in whole or in part, involves an issue of
professional conduct and competence . . . .”). Adverse actions
involving professional conduct or competence are governed by
§ 7462, which provides for judicial review. Thus, Lerner’s
appeal of the DAB decision is properly before this Court for
review.
(Docket No. 28.)
Lerner began his employment at the VAMC in early 2007. On February 7, 2011,
Gaar issued a notice of proposed reprimand to Lerner for (1) failure to follow
instructions and (2) inappropriate conduct. (Admin. R. at 335.) The first reason,
referred to as “Charge I,” related to Lerner’s failure to properly label syringes,
inappropriate completion of post-procedure notes prior to the completion of the
procedure, 1 and failure to follow proper hand-washing procedures. (See Admin. R. at
1

The February 7, 2011, notice of proposed reprimand appears to refer to Lerner’s alleged
inappropriately completing post-procedure notes prior to the completion of the procedure as falling under
Charge II, “Inappropriate Conduct”; however, the VA, in its brief, appear to refer to these allegations as

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335.)

These alleged infractions, according to the notice of proposed reprimand,

occurred on four dates between February 2010 and June 2010. (Admin. R. at 335.) The
second reason, referred to as “Charge II,” related to Lerner’s alleged inappropriate
conduct toward a patient on July 16, 2010. (Admin. R. at 335.) The “specification” in
support of Charge II stated: “Specifically, when the patient began to exhibit disruptive
behavior towards you while in clinic, you became increasingly angry and the patient
reported you called him an ‘idiot.’ You admitted calling him a ‘clown.’ Both words are
unacceptable and your conduct was inappropriate.” (Admin. R. at 335-36.) Lerner
provided a written reply to the notice of proposed reprimand on February 25, 2011,
insisting that the charges were without merit. (Admin. R. at 110-12.) Lerner further
argued that “most of the specified charges occurred almost one year ago and the issues,
while extremely minor in nature, were immediately addressed and corrected.” (Admin.
R. at 110.)

Lerner’s union representative, Sandra Richardson (Richardson), also

submitted further information on Lerner’s behalf. (See Admin. R. at 337.)
On April 13, 2011, Marylee Rothschild, M.D. (Rothschild), Chief of Staff at the
VAMC, reduced the proposed reprimand to an admonishment. (Admin. R. at 337-39.)
Rothschild noted that she had reviewed Lerner’s work for the period of February 28
through March 3, 2011, and “found complete pre and post medical procedure notes in a
timely manner.”

(Admin. R. at 337.)

Rothschild also noted that “during an

unannounced accreditation readiness review on March 23, 2011, it was shown that the
appropriate hand washing was done prior to donning sterile gloves.” (Admin. R. at
337.) Rothschild commented, however, that “during the same review, it was noted that
falling under Charge I, “Failure to Follow Instructions.” (Compare Admin. R. at 335, with Docket No.
32, at 2-3.)

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identification of the medication used was still not in compliance.” (Admin. R. at 337.)
Rothschild concluded:
Last, it is my expectation that you maintain professionalism
during any and all interactions with patients. Failure to do so
disrupts continuity of care and negatively impacts a patient’s
perception of the care being provided. Although you reportedly
provided additional care to this patient in later productive
encounters, the initial interaction was quite unfortunate. This
patient encounter contributed to my determination of an
admonishment.
(Admin. R. at 337.)
Thereafter, on June 16, 2011, a Weingarten 2 fact-finding meeting was conducted
by Egolf, Gaar’s administrative assistant. (See Admin. R. at 278-86.) Present at that
meeting were Egolf, Lerner, and Richardson, Lerner’s union representative. In her
report of that meeting, Egolf wrote: “I began the meeting by stating that I had been
given authority by Dr. Gaar to conduct the Fact Finding review. Sandy Richardson
asked what the ‘charges’ were; I noted we would be asking questions about the
following: ‘time out’ process, medication vials, May 13, 2011 incident – interaction
with nurse practitioner, and alleged blogging.” (Admin. R. at 278.) Apparently, no
formal charges or other disciplinary action came about as a result of that meeting. (See
Docket No. 31, at 5.)
Another Weingarten meeting was conducted by Egolf on July 13, 2011.
(Admin. R. at 267-74.) By this point, Gaar apparently had delegated to Egolf the
2

A “Weingarten meeting” refers to the Supreme Court’s decision in N.L.R.B. v. J. Weingarten, Inc.,
420 U.S. 251 (1975), a case in which the Court held that union employees were entitled to “the right to
insist on the presence of a union representative at an investigatory interview with employer personnel
which he reasonably believes will result in disciplinary action.” Spartan Stores, Inc. v. N.L.R.B., 628
F.2d 953, 957 (6th Cir. 1980).

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authority to conduct an investigation and fact finding relative to Lerner. (Admin. R. at
160 (Hr’g Tr. at 29).) The July 13 meeting addressed several interactions among Lerner
and his patients during the two-week period of June 23 through July 7, 2011. The first
encounter occurred between Lerner and “Patient A” on June 23 3, 2011. (Admin. R. at
267.) According to Egolf’s notes, Patient A stated that Lerner asked him “something to
the effect of ‘are you a real UofL’ fan and then made some comment about they couldn’t
get anyone into the MBA.” 4 (Admin. R. at 290.) The second encounter occurred on
June 29, 2011 among Lerner, “Patient B,” Patient B’s wife, and Patient B’s son, all of
whom are African American. (Admin. R. at 269.) According to Egolf’s notes, Patient B
stated that Lerner called Patient B’s wife a “dummy,” referred to Patient B’s son as a
“big gorilla,” and, when Patient B’s wife asked questions about Patient B’s treatment,
Lerner responded, “who’s the patient here?” (Admin. R. at 277.) The third encounter
occurred between Lerner and “Patient C” on July 7, 2011.

(Admin. R. at 272.)

According to a note transmitted to Egolf by Patrice Gordon, R.N. (Gordon), Patient C
stated “that Dr. Lerner told him to call the surgery department and complain.” (Admin.
R. at 275.) Gordon’s note also reflected that Patient C “stated that Dr. Lerner told him
that the surgery dept is trying to get rid of him.” (Admin. R. at 275.) The record
reflects that Egolf spoke directly with Patient A and Patient B, (see Admin. R. at 277,
288), but Egolf did not speak directly with Patient C, (see Admin. R. at 160 (Hr’g Tr. at
31)).

3

Egolf’s Weingarten meeting notes reflect that this encounter occurred on June 23, (Admin. R. at
267); however, her report of her telephone conversation with Patient A inconsistently reflects that the
encounter occurred on June 22, (Admin. R. at 290).
4
Although both Egolf’s Weingarten meeting notes and report of her telephone conversation refer to
the “MBA,” presumably both are intended to refer to the “NBA.”

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By letter of September 29, 2011, Gaar informed Lerner that he was proposing a
ten-day suspension based on six instances of alleged inappropriate conduct, which were
labeled as “Specifications” A through F. (Admin. R. 34-36.) Specification A related to
Lerner’s encounter with Patient B in which Lerner allegedly called Patient B’s wife a
“dummy” and referred to his son as a “big gorilla.” (Admin. R. at 34.) Specification B
also related to Lerner’s encounter with Patient B, specifically Lerner’s alleged statement
“who’s the patient here?” to Patient B’s wife. (Admin. R. at 34.) Specification C
related to Lerner’s encounter with Patient C and Lerner’s alleged statements “the nurse
quit” and “the surgery department is trying to get rid of me.” (Admin. R. at 34.)
Specification D related to Lerner’s interaction with Patient A and Lerner’s alleged
comments about whether Patient A was “a real U of L fan.” (Admin. R. at 35.)
Specification E appears to relate to Lerner raising his voice to Egolf during the June 16
Weingarten meeting when questioned about his “blogging” activities while at work.
(Admin. R. at 35; see Admin. R. at 282-83.)

Specification F relates to Lerner’s

demeanor at the July 13 Weingarten meeting, specifically (1) Lerner’s having laughed
when questioned whether he notified the staff when he leaves the work area, and (2)
Lerner’s comments to the Weingarten meeting reporter that she should “not be taking
personal calls, or words to that effect,” during the Weingarten meeting. (Admin. R. at
35; see Admin. R. at 274.) Gaar’s letter concluded, stating: “I consider these incidents
to be very serious . . . and I consider this professional misconduct to be completely
unacceptable.” (Admin. R. at 35.)
Gaar’s proposal of suspension was then transmitted to Pfeffer, the director of the
VAMC, for a final decision. (See Admin. R. at 36.) On October 21, 2011, Lerner
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submitted to Pfeffer a written reply to the proposed suspension. (Admin. R. at 37-38.)
Lerner maintained that all of the charges relative to interactions with patients “were
taken out of context or simply untrue” and that the allegations against him “have no
merit, no bearing on patient care, and have only served the purpose to harass [him].”
(Admin. R. at 37.) Lerner further insisted that “[t]he temporal nature and escalating
quality of these allegations are clearly retaliatory as they occurred exactly one day to the
date that Dr. Gaar’s superiors were notified of possible violations of resident physician
supervision.” (Admin. R. at 37.) Lerner met with Pfeffer on November 2, 2011 to
discuss Gaar’s proposed suspension. Then, on November 21, Pfeffer sustained Gaar’s
recommendation and issued a ten-day suspension to Lerner. (Admin. R. at 39-40.)
By letter of December 6, 2011, Lerner invoked his right to a hearing before the
DAB. (Admin. R. at 41-42.) Lerner again stated that the charges were without merit
and were “based on obscure trivial matters, most of which are untrue or taken out of
context.” (Admin. R. at 41.) In January 2012, while his appeal was pending, Lerner
was required to serve his ten-day suspension.
The DAB conducted a two-day hearing on March 13 and 14, 2012. 5 (See
Admin. R. at 153-246.) The DAB heard from eleven witnesses, including Egolf, Gaar,
Pfeffer, Vaught, Gordon, and Lerner. (See Admin. R. at 153 (Hr’g Tr. at 3).) None of
the complaining patients or other individuals referenced in Specifications A through D
testified. The DAB rendered its decision and submitted its recommendation to the
5

It is not entirely clear whether the hearing was held on March 12 and 13 or March 13 and 14. The
VA identifies March 13-14, (Docket No. 32, at 8), whereas Lerner says March 12-13, (Docket No. 31, at
13). The official transcript seems to indicate March 13-14, (see Admin. R. at 153, 209); however, the
transcript also refers to “March 128,” which could be construed as a typo intending to refer to “March
12,” (Admin. R. at 153 (Hr’g Tr. at 2)).

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Under Secretary on April 16, 2012. (Admin. R. at 14.) In a roughly three-and-one-half
page written decision, the DAB sustained three of the six Specifications and, concluding
that the ten-day suspension was excessive, reduced the penalty to a five-day suspension.
(See Admin. R. at 10, 14.) Specifically, the DAB sustained Specifications A, B, and C,
but did not sustain Specifications D, E, or F.
In regard to Specification A, the DAB concluded that “the weight of the
evidence favored the conclusion that [Lerner] had used the word ‘dummy’ with respect
to the patient’s wife and had used the words ‘big gorilla’ with respect to the patient’s
son.” (Admin. R. at 10.) The DAB noted that Lerner did not remember the encounter
and denied using the word “dummy” in the context alleged; however, the DAB reasoned
that “given [Lerner’s] past disciplinary record and lack of expressed remorse during the
hearing . . . it was more likely than not that [Lerner] had used this language with respect
to the patient’s wife and son.” (Admin. R. at 10.)
In regard to Specification B, the DAB found that the weight of the evidence was
sufficient to sustain the charge that Lerner used the language “who’s the patient here,”
language which the DAB found was “demeaning and inappropriate.” (Admin. R. at
10.) The DAB noted that Lerner did not remember the encounter and testified that if he
had used that language, it was to redirect the dialogue back to the patient. The DAB
further acknowledged that circumstances where family members intrude on the
physician-patient dialogue “do occur regularly,” but concluded that “there are far better
alternatives to the approach used by [Lerner].” (Admin R. at 10.)

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In regard to Specification C, the DAB wrote: “[Lerner] indicated that he did not
specifically remember this encounter but testified that it was unlikely that he used the
language ‘the nurse quit’ or ‘the surgery department is trying to get rid of me’ to a
patient. The Board noted that the appellant testified on multiple occasions that he had
little control over the pain department, that he lacked space and resources and that the
nurse practitioner had quit and was not replaced, substantially increasing [Lerner’s]
workload.” (Admin. R. at 11 (internal citations omitted).) The DAB then concluded:
“Given [Lerner’s] past record and also his demeanor during the hearing the Board
determined that the weight of the evidence supported the charge th[at] [Lerner] had used
this language during the patient encounter and that the language constituted
Inappropriate Conduct.” (Admin. R. at 11.)
Then, under the heading “Penalty,” the DAB began by stating that it found the
three sustained Specifications “to be serious and warrant discipline.” (Admin. R. at 12.)
The DAB noted that Lerner had previously received an admonishment and that Lerner
“has not shown remorse or admitted to some degree of wrongdoing.” (Admin. R. at
12.) The DAB went on to state that there were mitigating factors to be considered:
The Agency conducted a very inadequate fact finding process prior
to laying charges. The proposing official, the Chief of Surgery,
delegated essentially the fact finding to Eva Egolf and admitted
that he knew little or nothing about the results of the fact finding.
He relied solely on HR to craft the suspension proposal and it is
not clear that he even knew the contents of the letter when he
signed it . . . . The Chief of Surgery stated that Ms. Egolf was an
unbiased third party. The Board determined that Ms[.] Egolf was
not an unbiased third party since she reported directly to the Chief
of Surgery. As a result Ms[.] Egolf was not a good candidate to
conduct essentially the entire the fact finding process. The Board
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also determined that the Agency had alternative fact finding
mechanisms such as an administrative investigation. The Board
further determined that there was significant conflict between the
testimony of the Chief of Surgery and the Medical Center Director
regarding the role of the Chief of Surgery in issuing the suspension
proposal. This conflict undermines the credibility of the Agency
with regard to the suspension. Finally the Board determined that
there was no evidence that the Agency had offered [Lerner] any
counseling, employee assistance or communication skills training
after the admonishment. . . . The Board considered the Agency had
a responsibility to offer such and that the failure to do so
constitutes a mitigating factor.
(Admin. R. at 12-13.)
The Under Secretary issued his final decision adopting the DAB’s
recommendation some four months later on August 10, 2012. (Admin. R. at 6, 14.)
This appeal followed.
STANDARD
The Court’s review of the DAB’s final action is governed by 38 U.S.C.
§ 7462(f)(2), which provides:
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)
(B)
(C)

arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law;
obtained without procedures required by law, rule,
or regulation having been followed; or
unsupported by substantial evidence.

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The standard of review under § 7462(f)(2) “directly mirrors the standard for judicial
review of other administrative actions.” Rajan v. Principi, 90 F. App’x 262, 263 n.1
(9th Cir. 2004) (citing 5 U.S.C. § 706(2)).
For purposes of § 7462(f)(A), an agency’s decision is “arbitrary and capricious”
if “the agency has relied on factors which Congress has not intended it to consider,
entirely failed to consider an important aspect of the problem, offered an explanation for
its decision that runs counter to the evidence before the agency, or is so implausible that
it could not be ascribed to a difference in view or the product of agency expertise.”
Taylor v. Principi, 92 F. App’x 274, 276-77 (6th Cir. 2004) (quoting Henry Ford Health
Sys. v. Shalala, 233 F.3d 907, 911 (6th Cir. 2000)). “Although the court may not supply
a reasoned basis for the agency’s action that the agency itself has not given, a decision
of less than ideal clarity should be upheld if the agency’s path may reasonably be
discerned.” Id. at 277 (citing Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1355 (6th Cir.
1994)). Stated differently, “[t]he arbitrary and capricious standard . . . is met when it is
possible to offer a reasoned explanation, based on the evidence, for a particular
outcome.” Admin. Comm. of the Sea Ray Emps.’ Stock Ownership & Profit Sharing
Plan v. Robinson, 164 F.3d 981, 989 (6th Cir. 1999) (citation and internal quotation
marks omitted).

“Consequently, a decision will be upheld if it is the result of a

deliberate principled reasoning process . . . .” Evans v. UnumProvident Corp., 434 F.3d
866, 876 (6th Cir. 2006) (citation and internal quotation marks omitted). And while this
standard of review is “highly deferential,” it “does not automatically mandate adherence
to [an agency’s decision]”—that is, it is not “without some teeth.” McDonald v. W.-S.
Life Ins. Co., 347 F.3d 161, 172 (6th Cir. 2003) (citation omitted). “Deferential review
Page 11 of 41

is not no review, and deference need not be abject.” Id. (citations omitted) (internal
quotation marks omitted). Put another way, “federal courts do not sit in review of the
administrator’s decisions only for the purpose of rubber stamping those decisions.”
Moon v. Unum Provident Corp., 405 F.3d 373, 379 (6th Cir. 2005).
Under § 7462(f)(C), the Court also may set aside any agency action unsupported
by substantial evidence. “To determine whether the board’s findings are supported by
substantial evidence, the court must determine whether the board considered ‘such
relevant evidence as a reasonable mind might accept as adequate to support the
conclusion reached.’” Taylor, 92 F. App’x at 277 (quoting R.P. Carbone Constr. Co. v.
Occupational Safety & Health Review Comm’n, 166 F.3d 815, 818 (6th Cir. 1998)).
“Substantial evidence is more than a scintilla, but less than a preponderance, of the
evidence.” R.P. Carbone, 166 F.3d at 818. In other words, it “must be enough to
justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought
to be drawn from it is one of fact for the jury.” Payne v. Comm’r of Soc. Sec., 402 F.
App’x 109, 111 (6th Cir. 2010) (internal quotation marks omitted) (quoting LeMaster v.
Sec’y of Health & Human Servs., 802 F.2d 839, 840 (6th Cir. 1986)). The Court must
affirm the agency’s decision if it is supported by substantial evidence, even if the Court
would have decided the issue differently. Taylor, 92 F. App’x at 277 (citing Bogle v.
Sullivan, 998 F.2d 342, 347 (6th Cir. 1993)).
Finally, the Court notes that “relevant and material hearsay may constitute
substantial evidence.”

R.P. Carbone, 166 F.3d at 819.

However, “[m]ere

uncorroborated hearsay or rumor does not constitute substantial evidence.” Consol.
Edison Co. of N.Y. v. N.L.R.B., 305 U.S. 197, 230 (1938). When deciding whether
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hearsay testimony constitutes substantial evidence, the Sixth Circuit, in applying
Richardson v. Perales, 402 U.S. 389 (1971), advises that courts must consider the
following eight factors:
(1) the independence or possible bias of the declarant, (2) the type
of hearsay material submitted, (3) whether the statements are
signed and sworn to as opposed to anonymous, oral, or unsworn,
(4) whether the statements are contradicted by direct testimony, (5)
whether the declarant is available to testify and, if so, (6) whether
the party objecting to the hearsay statements subpoenas the
declarant, or whether the declarant is unavailable and no other
evidence is available, (7) the credibility of the declarant if a
witness, or of the witness testifying to the hearsay, and finally, (8)
whether the hearsay is corroborated.
R.P. Carbone, 166 F.3d at 819.
DISCUSSION
VA physicians, such as Lerner, are afforded procedural protections when they
experience a “major adverse action” as defined by 38 U.S.C. § 7461. A suspension
qualifies as a major adverse action. Id. § 7461(c)(2)(B). Further, the major adverse
action was the result of “professional conduct or competence.”

Id. § 7461(c)(3);

(Docket No. 1-1, at 2 (“The action being appealed is a major adverse action. The
charge upon which the action is based, in whole or in part, involves an issue of
professional conduct and competence . . . .”). Adverse actions involving professional
conduct or competence are governed by § 7462, which provides for judicial review.
Thus, Lerner’s appeal is properly before this Court for review.
Lerner challenges the DAB’s decision as (1) arbitrary and capricious, (2) not
supported by substantial evidence, and (3) contrary to due process. Because the Court

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finds Lerner’s first two challenges dispositive of this appeal, the Court need not address
in his arguments relative to due process.
I.

Substantial Evidence
Lerner chiefly argues that the DAB’s decision was not supported by substantial

evidence. Accordingly, the Court will begin its discussion there. As noted above
“[s]ubstantial evidence is more than a scintilla, but less than a preponderance, of the
evidence.” R.P. Carbone, 166 F.3d at 818. “It is such relevant evidence as a reasonable
mind might accept as adequate to support the conclusion reached,” id., and “must be
enough to justify, if the trial were to a jury, a refusal to direct a verdict,” Payne, 402 F.
App’x at 111. Lerner insists that all of the evidence to support any of the charges
against him came in the form of hearsay from Egolf. Lerner argues that such evidence,
particularly in light of the DAB’s finding that Egolf was biased and not a good
candidate to conduct the fact-finding process, is insufficient to constitute substantial
evidence.
A.

Specification A

In regard to Specification A, the question before the Court is whether the DAB’s
conclusions that Lerner used the terms “dummy” in reference to a patient’s wife and
“gorilla” or “big gorilla” in reference to a patient’s son, and that the use of those terms
constituted inappropriate conduct are supported by substantial evidence. The DAB’s
written opinion opens its discussion of Specification A with the line “[a]fter hearing
testimony and reviewing the evidence”; however, the DAB did not identify what
particular testimony or evidence its conclusions are based upon. The only specific
mention made is to Lerner’s “past disciplinary record” and his “lack of expressed
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remorse during the hearing regarding the use of the terms dummy and gorilla.” (Admin.
R. at 10.) Assuming the DAB’s decision was solely based on Lerner’s disciplinary
record and lack of remorse at the hearing, that decision certainly was not based on
substantial evidence. In fact, neither of those considerations has any direct bearing on
the question whether Lerner used those terms or whether his doing so constituted
inappropriate conduct.
But, regardless of the DAB’s stated reasons for reaching its conclusion, the
Court, must affirm the DAB’s decision if it is “supported by substantial evidence on the
record considered as a whole.” R.P. Carbone, 166 F.3d at 818 (citing Bowman Transp.,
Inc. v. Ark.-Best Freight Sys., Inc., 419 U.S. 281, 285-86 (1974)). The VA sets out
separate lists of evidence that it says support the DAB’s findings that “Lerner called the
wife of a patient a ‘dummy’” and that “Lerner told an African-American patient that his
son was a ‘Big Gorilla.’” (Docket No. 32, at 11-15.) The Court will consider each in
turn.
1.

The DAB’s determination that Lerner called a patient’s wife a
“dummy” is not supported by substantial evidence.

The VA points to nine pieces of evidence as supporting the DAB’s finding that
Lerner called the wife of a patient a “dummy.” That evidence can be summarized as
follows:
(1)

Egolf’s “Report of Contact” in which she documented her
conversation with the patient and the patient’s wife. Egolf’s
report states that the patient told Egolf that Lerner “called my
wife a dummy” and “told him something to the effect that . . . his
son was a ‘big gorilla.’” Egolf’s report also states that the
patient’s wife told Egolf that Lerner “said something about ‘you
dummy.’” (Admin. R. at 277.)

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(2)

An email sent from nurse Margaret “Peggy” Scully (Scully) to
nurse Debra Hunt (Hunt) on June 30, 2011, which was then
forwarded to Egolf on July 1, 2011. In this email, Scully states
that she “was across the hall in the Pain Clinic doing paperwork”
when she “heard Dr. Lerner say ‘you dummy.’” She goes on to
say, “but I don’t know what the context of the conversation
was. . . . [The patient] did not seem upset at that time [and] he
did not make any complaints at that time.” (Admin. R. at 276.)

(3)

Egolf’s notes from the Weingarten meeting held on July 13,
2011. Egolf’s notes reflect that Lerner denied calling the
patient’s wife a “dummy” and did not remember the specific
conversation. Egolf’s notes also reflect that Lerner stated it was
possible he had used the word but denied he would have used it
in the context of calling a patient’s family member a “dummy.”
(Admin. R. at 270.)

(4)

Egolf’s testimony before the DAB in which Egolf recounted her
conversation with the patient’s wife. There, Egolf testified: “I
also spoke with the wife and she had asked some questions about
the pain medication . . . however, at one point Dr. Lerner
. . . must have said something about her being, calling her a
dummy, because she said to me, I said to him, I know you just
didn’t call me a dummy.” (Admin. R. at 162 (Hr’g Tr. at 39).)

(5)

Egolf’s testimony before the DAB in which Egolf read her notes
from the Weingarten meeting held on July 13, 2011. Egolf
testified that Lerner denied calling the patient’s wife a “dummy.”
Egolf further testified that: “Dr. Lerner stated that sometimes he
does use that phrase, but it has to be used in the correct context.
He stated . . . he did not say you are stupid or a dummy. He
stated he did not recall the interaction.” (Admin. R. at 164
(Hr’g Tr. at 46).)

(6)

Egolf’s testimony before the DAB about a previous incident in
which Lerner called a patient a “clown” (the same incident that
resulted in the April 13, 2011, admonishment issued by
Rothschild). There, Egolf testified:
Q. . . . Other than this – this incident, this exchange where the
patient accused Dr. Lerner of calling her a dummy, have you
Page 16 of 41

ever heard from any source whatsoever that he has ever
spoken to a patient like that?
A. Yes.
Q. Tell me about that.
A. He had a previous incident where he called a patient a
clown.
....
Q. Okay. Can you tell me, what was your involvement with
this interaction?
A. Actually was not involved with this interaction. I became
aware of it when one of the patient advocates from the first
floor, I believe, was the one that was called by the main
hospital patient advocate. This patient had gone to see
Gayle O’Bannon, and reported this complaint that he had
been called an idiot.
(Admin. R. at167-68 (Hr’g Tr. at 60, 63).)
(7)

Egolf’s testimony before the DAB in which she stated: “I think
that’s very unprofessional to call any of our patients any kind of
names in a joking manner or anytime, I think that’s very
inappropriate. We’re here to serve our Veteran patients, we’re
not here to call them names.” (Admin. R. at 169 (Hr’g Tr. at 66).)

(8)

Nurse Scully’s testimony before the DAB in which she testified
about her June 30 email to Hunt. There, Scully stated: “I didn’t
hear everything that they were saying, but you could hear some
of the conversation. I said that I did hear Dr. Lerner say dummy
and I didn’t know if he, I assumed he was talking to the patient,
but the patient at the time didn’t appear to be upset, so, I just
thought that was that.” When pressed on cross-examination,
Scully acknowledged that she did not actually see the patient or
his wife because of her location across the hall, clarifying that
she “didn’t hear any response from them that sounded upset.”
(Admin. R. at 170 (Hr’g Tr. at 71-72).)

Page 17 of 41

(9)

Pfeffer’s testimony before the DAB in which he testified about a
meeting with Lerner and Lerner’s refusal to discuss specifics
with him. (Admin. R. at 201 (Hr’g Tr. at 195).)

Upon considering the evidence cited by the VA and the record as a whole, the
Court finds that the DAB’s determination that Lerner “had used the word ‘dummy’ with
respect to the patient’s wife . . . and that the use of this language constituted
Inappropriate Conduct” is not supported by substantial evidence.
Egolf’s Report of Contact, Weingarten meeting notes, and testimony before the
DAB (numbers (1), (3), (4), and (5) above) all appear to be hearsay evidence of what
the patient and his wife told Egolf Lerner had said to them. Applying the eight factors
laid out in R.P. Carbone, 166 F.3d at 819, the Court finds that this hearsay evidence
does not constitute substantial evidence. The patient’s and his wife’s statements that
Lerner called the patient’s wife a dummy were not signed, sworn, or otherwise verified,
and, to the extent they allege Lerner called the patient’s wife a “dummy” as opposed to
merely using that word in another context, are contradicted by Lerner’s sworn testimony
before the DAB. Moreover, it appears that Lerner sought to discover the identities of
the complaining patients for the purpose of calling these individuals as witnesses at the
DAB Hearing. (See Admin. R. at 24, 28-29; Docket No. 31, at 29; Docket No. 33, at 5.)
In a written memorandum following the prehearing conference, the DAB denied this
request without explanation. (See Admin. R. at 149.) There is no indication in the
record that either the patient or his wife were unavailable to testify.

The only

corroborating evidence appears to be Scully’s statement that she heard Lerner say “you
dummy.” However, Scully admitted she was across the hall and did not hear the context
of the conversation. She also, inconsistent with her previous statements, admitted at the
Page 18 of 41

hearing that she only heard Lerner say “dummy” (rather than “you dummy”) and did
not actually see the patient or his wife. Finally, and perhaps most importantly, the DAB
expressly determined that Egolf was not unbiased and was not a good candidate to
conduct the fact-finding process. 6 Therefore, to the extent the DAB relied upon Egolf’s
Report of Contact, Weingarten meeting notes, and testimony before the DAB, its
conclusion that Lerner “had used the ‘word dummy’ with respect to the patient’s wife”
is not supported by substantial evidence.
Egolf’s testimony about Lerner previously calling a patient a “clown” (number
(6) above), aside from being questionably relevant, is similarly hearsay and does not
amount to substantial evidence in support of the DAB’s decision.

In fact, Egolf

expressly testified that she had no involvement with that incident. Furthermore, Egolf’s
opinions about what generally is or isn’t professional behavior (number (7) above) has
no bearing whatsoever on the question before the DAB, and, thus, also does not
constitute substantial evidence.
Scully’s email and testimony (numbers (2) and (8) above) similarly do not
constitute substantial evidence in support of the DAB’s decision to sustain
Specification A.

The DAB did not make an express determination as to Scully’s

credibility. Since the DAB did make such a determination relative to Egolf, the Court
assumes that the DAB took no issue with Scully’s credibility. However, even affording
deference to the presumed determination that Scully was credible, Scully’s equivocal

6

Even assuming this evidence were not hearsay, Egolf’s bias renders it of little or no value to
substantiate the charges against Lerner. The DAB expressly found that Egolf was biased and should not
have been delegated the responsibility of investigating Lerner. Moreover, Egolf’s bias is plainly apparent
on even a cursory review of the administrative record. The DAB at no point states that its decision was
based on this evidence, and, in light of its criticism of Egolf, it is difficult to imagine that the DAB would
have given any significant weight (or any weight at all) to Egolf’s reports and testimony.

Page 19 of 41

email (“but I don’t know what the context of the conversation was”) and inconsistent
testimony before the DAB as to what she actually heard (“dummy” versus “you
dummy”) and whether she actually observed the patient at that time do not amount to
substantial evidence. That is, this evidence does not constitute “such relevant evidence
as a reasonable mind might accept as adequate to support the conclusion reached,” R.P.
Carbone, 166 F.3d at 818, nor is it “enough to justify, if the trial were to a jury, a refusal
to direct a verdict when the conclusion sought to be drawn from it is one of fact for the
jury,” Payne, 402 F. App’x at 111. At best, Scully heard Lerner speak the word
“dummy,” but she did not hear the context in which it was used or to whom it was
directed, and she did not hear or see any indication that the patient was upset at that
time. Therefore, again, this evidence does not amount to substantial evidence in support
of the inappropriate conduct charge that Lerner called the patient’s wife a “dummy.”
Finally, the ninth piece of evidence to which the VA refers—Pfeffer’s
testimony—actually has nothing to do with any complaints against Lerner. The VA
quotes a portion of Pfeffer’s testimony in which Pfeffer talks about wanting “to go
through step by step the oral response, or the written response” but states that Lerner
refused. Read in context, Pfeffer’s comments are in relation to complaints made by
Lerner, not against Lerner. (See Admin. R. at 201 (Hr’g Tr. at 194:23–195:12).) In
fact, the only reference during Pfeffer’s testimony to Lerner’s use of the word “dummy”
appears when Pfeffer is asked to review a July 1 email received from Egolf
(presumably, the Scully-Hunt-Egolf email (Admin. R. at 276)). (See Admin. R. 200
(Hr’g Tr. at 190).)

There, Pfeffer merely states his opinion that: “[I]t is very

disrespectful to a patient to call a patient a dummy. And it is not the reflection I want on
Page 20 of 41

our medical center.” (See Admin. R. 200 (Hr’g Tr. at 190).) This piece of evidence in
no way supports the DAB’s conclusion relative to Specification A.
Accordingly, having reviewed the DAB’s written decision and the record as a
whole, the Court finds that the portion of the DAB’s decision sustaining the charge of
inappropriate conduct relative its determination that Lerner called a patient’s wife a
“dummy” is not supported by substantial evidence and must be set aside.
2.

The DAB’s determination that Lerner used the term “gorilla” with
respect to a patient’s son is supported by substantial evidence.

As for the second part of Specification A, the VA points to thirteen pieces of
evidence as supporting the DAB’s finding that Lerner told an African-American patient
that his son was a “big gorilla.” That evidence can be summarized as follows:
(1)

Egolf’s “Report of Contact” in which she documented her
conversation with the patient and the patient’s wife. Egolf’s
report states that the patient told Egolf that Lerner “told him
something to the effect that he needed to exercise like his son
and that his son was a ‘big gorilla.’” (Admin. R. at 277.)

(2)

Egolf’s notes from the Weingarten meeting held on July 13,
2011. Egolf’s notes reflect that Lerner denied calling the
patient’s son a “big gorilla” and did not remember the specific
conversation. Egolf’s notes also reflect that Lerner stated that he
liked the word gorilla, that he calls himself a gorilla, and that if
he had used that term it would have been in a positive way.
According to Egolf’s notes, Lerner also stated that the wording
was being taken out of context and told Egolf that she was “way,
way, way, way, way . . . off base.” (Admin. R. at 270-71.)

(3)

Egolf’s testimony before the DAB in which Egolf read her
Report of Contact. Egolf testified that “[the patient] went on to
say that Dr. Lerner had told him that he needed to exercise his
son and that he called his son a big gorilla.” Egolf also testified
that the patient’s wife told Egolf that “she wondered if perhaps
Page 21 of 41

they were being treated in this manner because they were African
American.” (Admin. R. at 164 (Hr’g Tr. at 38-39).)
(4)

Egolf’s testimony before the DAB in which Egolf read her notes
from the Weingarten meeting held on July 13, 2011. (Admin. R.
at 164 (Hr’g Tr. at 46-48).)

(5)

Egolf’s testimony before the DAB in which she opined that she
thought it was inappropriate to call a patient or family member a
gorilla. (Admin. R. at 169 (Hr’g Tr. at 66).)

(6)

Scully’s testimony before the DAB in which she testified that she
had heard Lerner use the term “gorilla” with staff members and
patients, both white and African American, “in the context of
exercise or physical fitness.” (Admin. R. at 172 (Hr’g Tr. at 7677).)

(7)

Scully’s testimony before the DAB that, in her opinion, it would
be inappropriate to call an African American or a member of an
African-American’s family a gorilla. (Admin. R. at 173 (Hr’g
Tr. at 81).)

(8)

Nurse Patricia Barnett’s (Barnett) testimony before the DAB in
which she testified that she had never heard Lerner deliberately
insult a patient but stated that “he might jokingly comment to a
patient and they might take it wrong.” (Admin. R. at 175 (Hr’g
Tr. at 91-92).)

(9)

Barnett’s testimony before the DAB in which she stated that she
had heard Lerner use the term “gorilla.” There, Barnett testified:
“It’s usually in a positive way because he is always talking to
patients about, you know, how they need to get exercise and, you
know, you know, they need to get out there and get healthy and if
a patient comes in, he’s been exercising, he’s been doing all he
needs to do, he’s feeling good, he’ll joke with them and say you
are a gorilla.” Barnett went on to say, “he’s never said it, I’ve
never heard him say it in a negative way.” (Admin. R. at 176
(Hr’g Tr. at 92-93).)

Page 22 of 41

(10) Pfeffer’s testimony before the DAB in which Pfeffer opined that
“[t]o treat a patient with disrespect or call an African-American a
gorilla, to me, is unacceptable.” (Admin. R. at 203 (Hr’g Tr. at
201).)
(11) Testimony before the DAB by Robert Peterson (Peterson), an xray technician at the VA, in which Peterson testified that he and
Lerner had used the term “gorilla” for each other in regard to the
exercises he and Lerner had done together. Peterson, who is
white, testified: “It’s not [an] insulting term. It’s just because of
the exercises that we do, we just try to encourage people. And if
it was demeaning, or, they felt that [sic] disrespected, that’s not
the intent.” (Admin. R. at 222 (Hr’g Tr. at 278).)
(12) Lerner’s testimony before the DAB in which Lerner
acknowledged using the term “gorilla” with dozens of patients
over the years. Lerner further testified that he used the term
indiscriminately whether the person was black, white, Asian,
male, or female, and that no one had ever taken offense to its use.
(Admin. R. at 242 (Hr’g Tr. at 359).)
(13) Lerner’s testimony before the DAB in which Lerner explained
the context in which he would have used the term “gorilla.”
There, Lerner testified:
Q. [T]he patient also reported that you told him [he] needed to
exercise like his son. And, that you referred to his son as a
big gorilla. Or, words to that effect. Can you explain the
context of how you used that phrase?
A. Yeah, [w]ell, we’ve heard, in terms of exercising. Once
again, you’ve got to be strong. You’ve got to be a beast. . . .
That’s how I used the term . . . .
And, I probably got out of them that their son might have
been a high school basketball player, football player.
Something along those lines. And patients, per se, you
know, when you start talking exercise and movement and
the things that are really going to help patients over the long
haul to remain functional.
. . . So I’ve got to implore that [they] do things that they
haven’t learned. The skills that are taking care of
themselves as they get older. So once again, in this case.
Spoke to this patient. He’s got to be like your son, he’s a
Page 23 of 41

big, hulking kid, scrapping football player. Or, whatever he
was something like that.
Q. Okay. Did you use the term any differently than you use
with your colleagues?
A. No, no. Not at all. As a matter of fact, I even use it with
my wife. . . .
(Admin. R. at 225 (Hr’g Tr. at 289-90).)
Again, Egolf’s Report of Contact, Weingarten meeting notes, and testimony
before the DAB (numbers (1), (2), (3), and (4) above) are all hearsay. Applying the
eight factors laid out in R.P. Carbone, for the same reasons as discussed above, the
Court finds that this hearsay evidence does not constitute substantial evidence. Egolf’s,
Scully’s, and Pfeffer’s opinions about what generally is or isn’t offensive or
disrespectful (numbers (5), (7), and (10) above) have no bearing on the ultimate
question before the DAB, nor do Barnett’s postulations that Lerner might “joking
comment to a patient and they might take it wrong” (number (8) above). However,
Scully’s, Barnett’s, and Peterson’s testimony (numbers (6), (9), and (11) above) that
Lerner has used the term “gorilla” with them and/or with patients—a point which
Lerner concedes—does amount to substantial evidence that, irrespective of context or
intent, Lerner did use that term with respect to a patient’s son. Accordingly, the Court
finds that the DAB’s determination that Lerner used the term “gorilla” with respect to a
patient’s son is supported by substantial evidence and need not be set aside on this basis.
B.

Specification B

In regard to Specification B, the question before the Court is whether the DAB’s
determinations that Lerner asked a patient’s wife “who’s the patient here?” and that the
use of that language was demeaning and inappropriate are supported by substantial
Page 24 of 41

evidence. In its written opinion, the DAB began by acknowledging that Lerner did not
recall the encounter but testified that if he had used that language it would have been for
the purpose of redirecting the conversation back to the patient. (Admin. R. at 10.) The
DAB agreed with Lerner that circumstances in which family members intrude on the
physician-patient dialogue “do occur regularly”; however, the DAB reasoned that “there
are far better alternatives to the approach used by [Lerner].” (Admin. R. at 10.) The
DAB then concluded that “[t]he language ‘who’s the patient here’ is demeaning and
inappropriate” and that “the weight of the evidence is sufficient to sustain this
Specification.” (Admin. R. at 10.)
The DAB did not explain further its reasoning in this regard, nor did the DAB
make clear the specific evidence on which it made its determination. 7 In its Response,
the VA references six items in the record that it says amount to substantial evidence:
(1)

Egolf’s “Report of Contact” in which she documented her
conversation with the patient and the patient’s wife. Egolf’s
report states that the patient’s wife told Egolf that Lerner “said
something to the effect of ‘who’s the patient here.’” (Admin. R.
at 277.)

(2)

Egolf’s notes from the Weingarten meeting held on July 13,
2011. Egolf’s notes reflect that Lerner did not recall the
encounter, “doubted he said that,” and “stated maybe they
misunderstood.” (Admin. R. at 270-71.)

(3)

Pfeffer’s testimony before the DAB in which he testified about a
meeting with Lerner and Lerner’s refusal to discuss specifics
with Pfeffer. (Admin. R. at 201 (Hr’g Tr. at 195).)

7

The DAB does offer one citation to five lines of Lerner’s testimony in which he stated: “So, in the
context of that, what I said to the patient was most likely to try to redirect. Like, you know, who’s the
patient here? Jokingly. To try to redirect from the spouse back to the patient. I really want to get the
information from the patient themselves. I’m really not interested in how many epidurals the spouse has
had in the past or etc.” (Admin. R. at 10 (citing Admin. R. at 225 (Hr’g Tr. at 291:9–:14)).)

Page 25 of 41

(4)

Egolf’s testimony before the DAB in which Egolf recounted her
telephone conversation with the patient and his wife. Egolf
testified that the patient’s wife told Egolf that “at one point Dr.
Lerner said who’s the patient here” and that “she wondered if
perhaps they were being treated in this manner because they
were African American.” (Admin. R. at 162 (Hr’g Tr. at 38-39).)

(5)

Lerner’s testimony before the DAB in which he did not deny that
he might have used the phrase “who’s the patient here?” There,
Lerner testified: “I always like to have family members in there
because we impart lots of information. . . . [M]ore often tha[n]
not, when we start talking to the patient, it’s usually a male
veteran. The spouse will jump in and start talking about their
[own] pain problems. So, in the context of that, what I said to
the patient was most likely to try to redirect. Like, you know,
who’s the patient here? Jokingly. To try to redirect from the
spouse back to the patient. I really want to get the information
from the patient themselves. I’m really not interested in how
many epidurals the spouse has had in the past . . . .” (Admin. R.
at 225 (Hr’g Tr. at 291).)

(6)

Lerner’s previous admonishment for referring to a patient as a
“clown.” (Admin. R. at 337-39.)

Upon considering the evidence cited by the VA and the record as a whole, the
Court finds that the DAB’s determination relative to Specification B is not supported by
substantial evidence. For the same reasons discussed above in regard to Specification
A, Egolf’s Report of Contact, Weingarten meeting notes, and testimony before the DAB
(numbers (1), (2), and (4) above) are all hearsay and, applying the eight factors laid out
in R.P. Carbone, do not constitute substantial evidence. Also for much the same reasons
as discussed above, neither Pfeffer’s testimony nor Lerner’s prior admonishment
(numbers (3) and (6) above) have any bearing on whether Lerner used the phrase
“who’s the patient here?” and, if so, whether his use of that language was demeaning
Page 26 of 41

and inappropriate. Finally, Lerner’s testimony at best evinces that he might have used
that phrase, but it in no way establishes that that he actually did.

Further, even

assuming Lerner’s testimony did amount to substantial evidence that he said “who’s the
patient here,” it does not establish that his use of that language was “demeaning and
inappropriate” as the DAB concluded. Quite simply, it is not such relevant evidence as
a reasonable mind might accept as adequate to support the DAB’s conclusion that the
weight of evidence was sufficient to sustain Specification B. See R.P. Carbone, 166
F.3d at 818.
Accordingly, after reviewing the DAB’s written decision and the record as a
whole, the Court finds that the DAB’s decision to sustain the charge in Specification B
is not supported by substantial evidence and must be set aside.
C.

Specification C

In regard to Specification C, the question before the Court is whether the DAB’s
determinations that Lerner told a patient “the nurse quit” and “the surgery department is
trying to get rid of me” and that the use of that language constituted inappropriate
conduct are supported by substantial evidence. In its written opinion, the DAB began
by acknowledging that Lerner testified “he did not specifically remember this
encounter[] but testified that it was unlikely that he used [that] language.” (Admin. R.
at 10.) The entire remainder of the DAB’s written decision relative to Specification C
states:
The Board noted that [Lerner] testified on multiple occasions that
he had little control over the pain department, that he lacked space
and resources and that the nurse practitioner had quit and was not
replaced, substantially increasing [his] workload. Given [Lerner’s]
past record and also his demeanor during the hearing the Board
determined that the weight of the evidence supported the charge
Page 27 of 41

[that Lerner] had used this language during the patient encounter
and that the language constituted Inappropriate Conduct.
(Admin. R. at 11 (citations omitted).)
The VA again points the Court to a number of items in the administrative record
that it says support the DAB’s conclusion:
(1)

Nurse Gordon’s July 7, 2011, email to Egolf. In that email,
Gordon relays a conversation with a patient in which the patient
told Gordon that Lerner told the patient that “he had to wait 6
months [to receive an epidural pain block] because the nurse quit
and [Lerner] was doing them all by himself” and “that the
surgery dept is trying to get rid of him.” (Admin. R. at 275.)

(2)

Egolf’s notes from the Weingarten meeting held on July 13,
2011. Egolf’s notes reflect that Lerner did not recall the
encounter and denied making either of those comments to the
patient. (Admin. R. at 272-73.)

(3)

Egolf’s testimony before the DAB in which she read her notes
from the July 13 Weingarten meeting. (Admin. R. at 165 (Hr’g
Tr. at 49-50).)

(4)

Gordon’s testimony before the DAB in which Gordon recounted
her telephone conversation with the patient. Gordon testified, in
relevant part, that the patient said he was “a little concerned
about some of the things that have been said to me about a nurse
quitting” and that “Dr. Lerner told him that the hospital was
trying to make him quit.” (Admin. R. at 188 (Hr’g Tr. at 141).)

(5)

Lerner’s testimony before the DAB in which Lerner testified that
the “patient was particularly unhappy at a time that we had just
lost out nurse practitioner.” When asked whether he told the
patient that the surgery department was trying to get rid of him or
make him quit, Lerner responded: “That would be highly
unlikely. I tend not to discuss my personal affairs with patients.”
(Admin. R. at 225-26 (Hr’g Tr. at 292-93).)

Page 28 of 41

(6)

Lerner’s testimony before the DAB in which he stated that he
had little control over the Pain Clinic, that a nurse practitioner
had in fact quit, and that her quitting had increased Lerner’s
workload. (Admin. R. at 224, 226 (Hr’g Tr. at 286, 293).)

Though a closer call, upon considering the evidence cited by the VA and the
record as a whole, the Court finds that the DAB’s determination relative to Specification
C is not supported by substantial evidence. The DAB’s decision identifies Lerner’s past
record and lack of remorse at the hearing as the foundation for its decision; however,
neither of those considerations has any bearing on the question whether Lerner did, in
fact, tell a patient that “the nurse quit” and “the surgery department is trying to get rid of
me” or whether that language constitutes inappropriate conduct.
For the same reasons discussed above, Egolf’s Weingarten meeting notes and
testimony before the DAB are hearsay and do not constitute substantial evidence.
Gordon’s email and testimony also are hearsay and, as such, must be analyzed under
R.P. Carbone’s eight factors. In this instance, the patient’s statements are not signed
and sworn, and are contradicted by Lerner’s sworn testimony before the DAB. There is
no indication in the record that the patient was unavailable to testify. There is no
evidence to corroborate the patient’s statements as to what Lerner did or did not say to
him. Moreover, Gordon gave inconsistent accounts of the precise language Lerner was
purported to have used, writing in her email “Dr[.] Lerner told him that the surgery
dep[artmen]t is trying to get rid of him” but testifying before the DAB that “Dr. Lerner
told him that the hospital was trying to make him quit.” (Compare Admin. R. at 275,
with Admin. R. at 188 (Hr’g Tr. at 141).) Unlike Egolf, for whom it made an express
credibility determination, the DAB did not state whether it found Gordon credible.
(Notably, the DAB also did not make an express credibility determination relative to
Page 29 of 41

Lerner. 8 )

When viewed in light of these factors, the Court cannot conclude that

Gordon’s email and/or testimony amount to substantial evidence in support of the
conclusion that Lerner did, in fact, tell a patient that “the nurse quit” and “the surgery
department is trying to get rid of me,” or that doing so amounted to inappropriate
conduct.
Furthermore, in this instance, Lerner’s testimony does not substantiate the
DAB’s conclusion. The fact that Lerner testified that a patient was unhappy about
having to wait twice as long for a pain block does not establish that Lerner made the
charged comments to that patient, nor does his testimony that he had little control over
the Pain Clinic, that a nurse practitioner had in fact quit, or that his workload had
increased as a result. This testimony at best provides a set of circumstances in which
the charged comments could be made; it does not, however, amount to more than a
scintilla of evidence that those comments actually were made. Moreover, Lerner
consistently denied making those comments, both in the Weingarten meeting and in his
sworn testimony before the DAB. Therefore, to the extent the DAB’s decision relied
upon Lerner’s testimony, its conclusion that Lerner “had used this language during the
patient encounter and that the use of the language constituted Inappropriate Conduct” is
not supported by substantial evidence.
Accordingly, after reviewing the DAB’s written decision and the record as a
whole, the Court finds that the DAB’s decision to sustain the charge in Specification C
is not supported by substantial evidence and must be set aside.

8

While the DAB did reference Lerner’s “demeanor during the hearing,” the DAB appears to be
referring to Lerner’s lack of remorse and not whether it otherwise found Lerner to be a credible witness.

Page 30 of 41

II.

Arbitrary and Capricious
Lerner also argues that the DAB’s decision should be set aside as arbitrary and

capricious. As stated above, “[t]he arbitrary and capricious standard . . . is met when it
is possible to offer a reasoned explanation, based on the evidence, for a particular
outcome.” Sea Ray, 164 F.3d at 989. And “[a]lthough the court may not supply a
reasoned basis for the agency’s action that the agency itself has not given, a decision of
less than ideal clarity should be upheld if the agency’s path may reasonably be
discerned.” Taylor, 92 F. App’x at 276-77 (citing Lansing Dairy, Inc., 39 F.3d at 1355).
Thus, the Court must uphold the DAB’s decision if it is found to be “the result of a
deliberate principled reasoning process.” Evans, 434 F.3d at 876. Upon reviewing the
administrative record, the Court finds that the DAB’s conclusions relative to
Specifications A, B, and C, as well as its decision in regard to the penalty imposed were
arbitrary and capricious in light of the evidence before it.
In regard to Specification A, the DAB offered little in the way of explanation
why it concluded that Lerner had used the terms “dummy” and “gorilla” in reference to
a patient’s family members or why it concluded that the use of that language necessarily
constituted inappropriate conduct.

A plain reading of the DAB’s written decision

suggests that it found the use of those terms amounted to inappropriate conduct because
of “[Lerner’s] past disciplinary record and lack of expressed remorse during the
hearing.” (See Admin. R. at 10.) Similarly, in regard to Specification B, the DAB
offered little explanation as to why the language “who’s the patient here” is necessarily
“demeaning and inappropriate” aside from summarily remarking that “there are far
better alternatives to the approach used by [Lerner].” (See Admin. R. at 10.) And
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finally, in regard to Specification C and the comments “the nurse quit” and “the surgery
department is trying to get rid of me,” the DAB’s written decision again suggests that
that it found those comments amounted to inappropriate conduct because of “[Lerner’s]
past record and also his demeanor during the hearing.” (See Admin. R at 10-11.)
However, even assuming Specifications A, B, and C were supported by substantial
evidence, 9 it is not possible, based on the evidence of record, to offer a reasoned
explanation why the DAB concluded that Lerner’s actions constituted inappropriate
conduct.
For one, the DAB made no reference to any objective standard or criteria why
any of Lerner’s alleged comments—irrespective of the context in which they are used—
are necessarily inappropriate. The Court has reviewed the VA Code of Conduct and
been unable to locate the term “inappropriate conduct.” (See Admin. R. at 362-76.)
The most analogous provision appears to be the prohibition against the “use of
insulting, abusive, or obscene language to . . . patients.” (Admin. R. at 365.) But
neither Gaar’s proposed suspension, (Admin. R. at 36), Pfeffer’s notice of suspension,
(Admin. R. at 41), nor the DAB written decision, (Admin. R. at 10-11), make any
reference to this provision, and, in fact, none of these documents accuse Lerner of using
“insulting, abusive or obscene language.”
The District of Arizona’s decision in Abaqueta v. United States, 255 F. Supp. 2d
1020 (D. Ariz. 2003), a case also brought under § 7462(f) by a VA physician, provides a
useful comparison on this point. There, Dr. Abaqueta, an anesthesiologist, was charged
9

As discussed above, in regard to Specification A, the Court finds that the portion of the DAB’s
decision that Lerner used the term “gorilla” with respect to a patient’s son is supported by substantial
evidence; however, the portion of the DAB’s decision relative to its determination that Lerner called a
patient’s wife a “dummy” is not.

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with “unprofessional conduct” and “patient abuse” arising out of an incident in which
he palpated an anesthetized patient’s breasts. Two nurse anesthetists witnessed Dr.
Abaqueta’s actions and filed written reports on the incident.

Dr. Abaqueta was

subsequently discharged and appealed his discharge to the DAB. Before the DAB, Dr.
Abaqueta testified that he palpated the patient’s breasts out of “medical interest” and his
“own clinical interest.” Id. at 1023-24. The DAB upheld the discharge, concluding that
Dr. Abaqueta: “touched the patient’s breast because he was curious and wanted to feel
the implant. His manner of touching . . . did not constitute a medical examination of the
patient.” Id. at 1024. The DAB’s written opinion also noted that, relative to the penalty
chosen, the medical center director “testified he made his decision based on the
evidence of record and the fact that he questioned several prominent anesthesiologists
concerning whether [Dr. Abaqueta’s] action constituted appropriate behavior.”

Id.

Furthermore, the DAB heard expert testimony from a recently retired anesthesiologist
and professor of ethics in regard to the relevant professional standard and whether Dr.
Abaqueta’s conduct amounted to unprofessional misconduct for an anesthesiologist. On
review, the district court upheld the DAB’s decision, reasoning that “[t]he ethical
standard was a question of fact for the Appeals Board to determine based on the
qualification and testimony of the expert witnesses.” Id. at 1026.
In contrast to Abaqueta, here the DAB did not hear any expert testimony to
establish an objective standard for what constitutes inappropriate conduct or whether
Lerner’s conduct violated that standard.

Nor did the DAB hear any evidence

establishing objective criteria for what is or is not appropriate communications by a
pain-management physician to his patients. Instead, despite discounting the testimony
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of Egolf, Gaar, and Pfeffer, the DAB seemed content to employ its own subjective
standard, based on its impressions of Lerner and his apparent lack of remorse at the
hearing, and to determine that Lerner violated that standard. Because the DAB both
failed to identify and utilize any sort of objective measure and to offer a reasoned
explanation why Lerner’s conduct constituted inappropriate conduct, the Court finds its
decision arbitrary and capricious.
Furthermore, the penalties imposed against Lerner—both the initial ten-day
suspension and the DAB’s subsequent reduction to a five-day suspension—were
arbitrary and capricious as well.

Not surprisingly, given the lack of an objective

standard for the charges against Lerner, the VA apparently could not even decide on the
seriousness of the charged offenses. Gaar’s proposed suspension described Lerner’s
conduct as “very serious” and “completely unacceptable.” (Admin. R. at 37.) Yet, as
Gaar testified and the DAB noted in its written decision, “[Gaar] admitted that he knew
little or nothing about the results of the fact finding. . . . [I]t is not clear that he even
knew the contents of the [proposed suspension] letter when he signed it.” (Admin. R. at
12.)

Pfeffer, in his notice of suspension, wrote that the “seriousness of the offense,”

among other factors, warranted a ten-day suspension. (Admin. R. at 41.) However,
when questioned by the DAB Chairman whether the agency gave any consideration to
conducting an administrative investigation where witnesses could be called (as opposed
to the informal fact finding that was conducted by Egolf), Pfeffer responded: “I thought
about that, because we do some, but I didn’t think that it rose to that level, to do a
formal investigation. Employee misconduct wasn’t egregious enough, I wouldn’t think
to do an [administrative investigation].” (Admin. R. at 209 (Hr’g Tr. at 226-27).) What
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is clear is that the VA did not believe that any of Lerner’s alleged “inappropriate
conduct” had been either deliberate or intentional. 10 (See Admin. R. at 213, 218 (Hr’g
Tr. at 241, 262).) So, despite finding that Lerner’s unintentional, nondeliberate conduct
was insufficiently serious to warrant an investigation beyond informal fact finding, the
VA nonetheless decided that Lerner’s conduct was sufficiently serious to merit a ten-day
suspension.
Additionally, the process by which the VA decided to impose a ten-day
suspension is unclear and cannot be reasonably discerned, and does not appear to be the
result of a deliberate principled reasoning process. At the hearing before the DAB, the
VA introduced a “Table of Penalties” for adverse actions against Title 38 employees.
Vaught, the VAMC’s human resources specialist, testified that “what we attempt to do in
Human Resources is, if the charge is not specifically spelled out in the Table of
Penalties, we relate it to the most near instances that has occurred.” (Admin. R. at 212
(Hr’g Tr. at 237-38).) Vaught analogized Lerner’s conduct to the offenses of “abuse of
patients” or “abusive or obscene language towards about or [sic] other personnel.”
(Admin. R. at 212 (Hr’g Tr. at 238).) However, neither Gaar’s proposed suspension nor
Pfeffer’s final decision make any reference to this Table or Penalties or either of the
analogized charges. (See Admin. R. at 34-36, 39-40.) Indeed, it is not entirely clear
10

Vaught, the VAMC’s human resources specialist, testified:
Q.
A.
Q.
A.

So, as a HR Specialist, it’s your opinion whatever conduct occurred, it
was not deliberate?
No, I do not believe it was deliberate.
Okay.
Or, intentional.

(Admin. R. at 218 (Hr’g Tr. at 262).) Counsel for the VAMC took the same position in his closing
statement to the DAB: “The Agency doesn’t believe think [sic] they were intentional or deliberate.”
(Admin. R. at 243 (Hr’g Tr. at 364).)

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who decided on the penalty imposed. Vaught testified that human resources typically
will meet with the employee’s supervisor to provide a recommendation based on the
Table of Penalties. (Admin. R. at 210-11 (Hr’g Tr. at 232-33).) But the testimony
before the DAB illustrated that Gaar, Lerner’s supervisor, had all but entirely removed
himself from the process. In fact, when asked “Are you aware of the charges that gave
rise to you proposed suspension,” Gaar responded, “Just from what I’ve reviewed
briefly before coming in here.” (Admin. R. at 192 (Hr’g Tr. at 158).) Pfeffer, on the
other hand, testified that he had reviewed the charges with Gaar and that Gaar had
provided significant input:
A. I met with Dr. Gaar and he then went through each of the
charges and talked about the rationale . . . and gave me a
clear picture of why they were charging what they were
charging.
....
Q. And what was [Gaar’s] view?
A. That this was sustainable that Dr. Lerner was very arrogant
and in fact to him, to where he had a hard time in his office
talking one on one to Dr. Lerner.
Q. So, [Gaar] participated actively in the -- in the process of
giving you information . . . ?
A. Yes.
Q. He was more than merely a conduit of information or
somebody through whom the recommendation from HR
was made?
A. Again, he relied on HR, and even did a lot of leg work, so
Dr. Gaar did elaborate on dealings with Dr. Lerner and some
of the specifics of the charges. So, he certainly knew about
it and gave me input.

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(Admin. R. at 203 (Hr’g Tr. at 201-02).) In view of the many inconsistencies and
shortcomings running throughout the fact-finding investigation and into the decision to
suspend Lerner, the Court cannot conclude that the VA’s decision was the result of a
deliberate principled reasoning process and, accordingly, finds that the penalty imposed
by the VA was arbitrary and capricious.
Furthermore, the DAB’s decision to reduce that penalty to a five-day suspension
also was arbitrary and capricious. As an initial matter, the selection of a five-day
suspension appears entirely arbitrary. The DAB offered no meaningful explanation why
a five-day suspension was warranted. Because the decision to uphold any suspension
runs contrary to the whole of the DAB’s written decision, the Court cannot reasonably
discern the DAB’s reasoning.
More importantly, perhaps, the DAB failed to appropriately consider and weigh
the Douglas factors in assessing an appropriate penalty against Lerner. For this reason
also, the Court finds that the penalty imposed by the DAB was arbitrary and capricious.
The Douglas factors, first laid out in Douglas v. Veterans Admin., 5 M.S.P.B. 313
(1981), represent a nonexhaustive list of factors that courts and review boards should
consider when determining appropriate penalties. 11 Those factors may be aggravating,
neutral, or mitigating, which accordingly may justify a more or less severe penalty.

11

The Douglas factors include:
(1) The nature and seriousness of the offense, and its relation to the employee’s
duties, position, and responsibilities, including whether the offense was
intentional or technical or inadvertent, or was committed maliciously or for gain,
or was frequently repeated;
(2) the employee’s job level and type of employment, including supervisory or
fiduciary role, contacts with the public, and prominence of the position;
(3) the employee’s past disciplinary record;

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In conjunction with the decision to suspend Lerner, Pfeffer completed a Douglas
factors checklist and characterized seven of the twelve factors as aggravating. (Admin.
R. at 332-34.) Despite making no express mention of the Douglas factors in its written
decision, the DAB apparently agreed with Pfeffer on two of the aggravating factors—
namely, the first factor (“seriousness of the offense”) and the third factor (“employee’s
past disciplinary record”). (See Admin. R. at 12, 332.) The DAB’s written decision
suggests that it found an additional aggravating factor in that “[Lerner] has not shown
remorse or admitted to some degree of wrongdoing.” (See Admin. R. at 12.) But the
DAB failed to consider or even acknowledge the five other factors that Pfeffer had
found to be aggravating. The DAB did, however, devote the bulk of its discussion to
the eleventh factor, “[m]itigating circumstances surrounding the offense.”

In that

discussion, the DAB pointed out a number of mitigating factors relative to the penalty
imposed, including: (1) that “[t]he Agency conducted a very inadequate fact finding
process prior to laying charges”; (2) that Gaar delegated the entire investigation to Egolf
and “admitted that he knew little or nothing about the results of the fact finding”; (3)
(4) the employee’s past work record, including length of service, performance
on the job, ability to get along with fellow workers, and dependability;
(5) the effect of the offense upon the employee’s ability to perform at a
satisfactory level and its effect upon supervisors’ confidence in the employee’s
ability to perform assigned duties;
(6) consistency of the penalty with those imposed upon other employees for the
same or similar offenses;
(7) consistency of the penalty with any applicable agency table of penalties;
(8) the notoriety of the offense or its impact upon the reputation of the agency;
(9) the clarity with which the employee was on notice of any rules that where
violated in committing the offense, or had been warned about the conduct in
question;
(10) potential for the employee’s rehabilitation;
(11) mitigating circumstances surrounding the offense such as unusual job
tensions, personality problems, mental impairment, harassment, or bad faith,
malice or provocation on the part of others involved in the matter; and
(12) the adequacy and effectiveness of alternative sanctions to deter such
conduct in the future by the employee or others.
5 M.S.P.B. at 332.

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that Gaar “relied solely on HR to craft the suspension proposal and it is not clear that he
even knew the contents of the letter when he signed it”; (4) that “Egolf was not an
unbiased third party”; (5) that Egolf “was not a good candidate to conduct essentially
the entire fact finding process”; (6) that the VA had “alternative fact finding
mechanisms such as an administrative investigation,” but did not employ those
mechanisms; (7) that “there was significant conflict between the testimony of [Gaar]
and [Pfeffer] regarding the role of [Gaar] in issuing the suspension proposal”; (8) that
“[t]his conflict undermines the credibility of the Agency with regard to the suspension”;
and (9) that the VA had not offered Lerner “any counseling, employee assistance or
communication skills training after the admonishment” but “had a responsibility to offer
such assistance.” (Admin. R. at 12-13.) In view of the list of mitigating factors the
DAB recognized, the Court cannot discern the DAB’s reasoning in deciding to reduce
Lerner’s suspension by half.
Furthermore, the DAB failed to consider several significant mitigating
circumstances that would seem to further undermine the charges against Lerner and the
reasonableness of the penalty imposed. For one, the DAB failed to consider whether
Lerner’s conduct “was intentional or inadvertent.” See Douglas, 5 M.S.P.B. at 332.
The evidence of record invariably showed that Lerner’s actions were unintentional, a
point that counsel for the VA expressly conceded in closing arguments before the DAB.
(See, e.g., Admin. R. at 218, 243 (Hr’g Tr. at 262, 364).) For another, the DAB made
no mention of a curious and seemingly noteworthy fact relative to the patient
complaints against Lerner—namely, that they all came about within a three-week
period.

The DAB also made no mention that this three-week period occurred
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immediately after Lerner circulated an email to Gaar’s superiors concerning instances of
attending physicians leaving the VAMC premises and leaving residents unsupervised in
the operating room. Given that the record is replete with evidence of the contentious
working relationship between Lerner and Gaar, and between Lerner and Egolf, the DAB
should have considered this factual aspect as a mitigating factor. See Douglas, 5
M.S.P.B. at 332 (identifying the eleventh enumerated factor as “mitigating
circumstances surround the offense such as unusual job tensions, personality
problems, . . . malice or provocation on the part of others involved in the matter . . . .”).
Thus, there may have been other reasons for investigating Lerner and pursuing
disciplinary action against him that should have been considered by the DAB but were
not. To quote the Western District of New York’s decision in Ward v. Derwinski, a case
where the penalty imposed against a VA nurse was found arbitrary and capricious, the
penalty imposed on Lerner “simply fails the ‘Doesn’t add up’ test.” 837 F. Supp. 517, at
524 (W.D.N.Y. 1992) (quoting Stephens v. Derwinski, 790 F. Supp. 29, 31 (D.D.C.
1992)).
Therefore, based upon its review of the DAB’s written decision and the
administrative record, the Court finds that both the original ten-day suspension and the
DAB’s decision to reduce that suspension to five days were arbitrary and capricious. As
such, the DAB’s decision must be set aside.
CONCLUSION
Having considered the administrative record and the parties’ respective
arguments, for the foregoing reasons, the Court finds that the decision by the
Disciplinary Appeals Board is deficient under 38 U.S.C. § 7462(f)(2). As such, that
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decision will be set aside and the penalty imposed on Lerner vacated in its entirety. An
appropriate Order will issue separately with this Opinion.
Date:

cc:

October 10, 2013

Counsel
AUSA

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