Court Upholds Firing of VA Officer for Treatment of Homeless Man

The Court of Appeals for the Federal Circuit has sustained the firing of a Veterans Affairs Police Service lieutenant stemming from his treatment of a homeless visitor to the VA Medical Center in San Juan, Puerto Rico. (

Cosme v. Department of Veterans Affairs

, C.A.F.C. No. 2009-3189 (nonprecedential), 3/8/10)

 
"Mr. P" as the court referred to him was a 48-year-old homeless veteran who apparently often dropped by the VA Medical Center looking for medical services or food. On one fateful day, Mr. P visited the pharmacy and eventually ended up in a bathroom reserved for hospital staff where he proceeded to take a shower. Cosme and a fellow officer Sanchez were called to the scene. When the officers asked Mr. P to leave, he relieved himself in the shower and "passively resisted Cosme’s instructions by dressing slowly." (Opinion p. 2)
 
A scuffle ensued during which Cosme grabbed Mr. P, tore his shirt and cursed at him. Mr. P then complained that he was experiencing chest pains and asked for medical assistance. Cosme refused and escorted Mr. P out of the building. The next day Mr. P returned, was admitted, and remained in the hospital for a few weeks. (p. 2)
 
Sanchez, who later testified to being "shocked" that Cosme would "jump a person like that for no reason," reported Cosme’s actions. (p. 3) The agency investigated, and eventually it fired Cosme. On appeal the Merit Systems Protection Board sustained charges of "conduct unbecoming," "disrespectful behavior toward a patient, and "failure to observe precaution for a patient’s safety." Even though it threw out some of the charges, the Board nevertheless sustained the removal penalty. (p. 2)
 
Cosme took his case to court.
 
The Federal Circuit took a dim view of Cosme’s actions, holding that the Board’s decision was proper and his removal was warranted.
 
The court notes that the "record shows that the VA holds Police Service officers to high professional standards." (p. 3) The applicable VA procedures talk about using force only as a "last resort," working toward "de-escalation" of incidents, and treating "every citizen… with courtesy and respect… "regardless as to how the citizen behaves toward the police officer." (p. 3)
 
Finding there was substantial evidence "that Cosme disrespected Mr. P and disregarded his safety," the court brushed aside Cosme’s arguments that the MSPB had committed error in handling his appeal.

 

09-3189CosmevVA

© 2016 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written consent from Susan McGuire Smith.

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About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.

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