VA won’t reinstate fired employee, despite judge’s ruling
February 17, 2016
An employee appeals board has ordered the Department of Veterans Affairs to reinstate a fired medical center director found to have ignored patient abuse, though the board upheld the charges against her.
The decision by Judge Arthur S. Joseph of the Merit Systems Protection Board to reinstate Linda Weiss, former director of the Albany-Stratton VA Medical Center in New York, mirrors two other recent reversals in cases involving regional directors and pits the VA and the board in an increasingly bitter battle for control of employee discipline.
VA Deputy Secretary Sloan Gibson vowed to ignore the order to restore Weiss to her director’s job and to award her back pay.
“We believe today’s untimely decision is unenforceable under the law, and does not entitle Ms. Weiss to return to VA employment,” he said in a statement.
Weiss, who was paid $165,000 annually, retired while the case was pending and could not be reached for comment Wednesday.
Joseph’s order comes more than a week after the board issued a statement that the VA’s discipline had been reversed. The statement did not provide an explanation or instructions.
Gibson criticized the lag time between the judge’s order and the board’s statement, contending it violated the Veterans Access, Choice and Accountability Act, which requires VA executive appeals to be expedited within 21 days.
Rep. Jeff Miller, R-Fla., chairman of the House Committee on Veterans Affairs, blasted the board’s decision and called for sweeping reform of the federal employee disciplinary system.
“No business in the world could operate efficiently and effectively if many of its major personnel decisions were subject to approval by an unaccountable board with a strong bias against accountability,” he said in a statement. “Yet that’s what we have with the MSPB – and it’s setting the entire federal government up for failure.”
The multiple disciplinary setbacks led VA Secretary Bob McDonald to endorse Gibson’s idea to make the department’s executives at-will employees, meaning they would lose the ability to appeal punishments to the MSPB, though it could mean higher salaries.
In their case against Weiss, the VA said she was aware of a nursing assistant abusing patients but failed to remove the employee from patient care in a timely manner. Joseph sustained the VA’s charge of failure to take timely action but found removal to be an unreasonable penalty.
Joseph also criticized Gibson for not considering any mitigating factors, such as Weiss’ 42 years of service to the VA prior to her offense or evidence that the threat to patient safety might have been less severe than originally reported. In his ruling, he also noted no one else was disciplined in the matter, despite the apparent involvement of other, lower-ranking employees.
“The record fails to establish that the deciding official considered any of the previously discussed mitigating matters, including the fact that the offense was not as serious as the agency has argued,” the judge wrote in his ruling.
In January, MSPB judges also overturned demotions for the directors of the Philadelphia and St. Paul, Minn., VA regional offices, despite largely upholding the VA’s findings of wrongdoing. In those cases, as with Weiss, judges noted the Veterans Access, Choice and Accountability Act only allows them to rule on whether a punishment is appropriate, as opposed to allowing them to offer a lesser penalty.
“If (the act) did not prohibit it, I would mitigate the penalty,” Joseph wrote in his Weiss ruling. “However, because that is not allowed, the only option is to reverse the action outright.”
Another concern that has surfaced in the recent board reversals of VA punishments is the 21-day limit imposed by the Veterans Access, Choice and Accountability Act for judges to adjudicate executive appeals. In one case, a judge noted she and lawyers involved in the case had 3,800 pages to examine.
William Spencer, MSPB spokesman, would not comment Wednesday on specific cases, but he did say the appeals board has expressed concerns about getting through large amounts of documentation in three weeks.
“All of the normal process gets condensed into a 21-day period and makes it a real challenge,” he said.
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