Sex and the VA Therapist

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By on January 20, 2009 in Current Events with 0 Comments

A Veterans Affairs exercise therapist at the VA medical center in Memphis lost his court appeal seeking to overturn his firing for engaging in a prohibited relationship with a patient. (Abrams v. Department of Veterans Affairs, C.A.F.C. No. 2008-3314 (Nonprecedential), 1/12/09)

As a kinesiotherapist, Abrams prescribed and monitored exercise therapy for veterans. Apparently while treating a female patient, Abrams became engaged in a five-year sexual relationship with her.

Apparently when the affair broke off, the female patient complained to the agency that Abrams was harassing her now and requested a new therapist. The agency assigned a replacement therapist and ordered Abrams not to have any more contact with his former patient. The agency eventually removed Abrams for having a prohibited relationship with his patient. (Opinion pp. 1-2)

On appeal to the Merit Systems Protection Board, Abrams argued that the relationship had not been sexual and therefore was not improper. Not so, ruled the Board’s Administrative Judge, who reached this conclusion based on witness credibility—the former patient said it was an affair and Abrams said it wasn’t—finding that the patient’s testimony was more persuasive. The AJ sustained the agency’s removal of Abrams based on the improper patient relationship charge. (p. 3)

Abrams took his case to the Federal Circuit Court of Appeals. Predictably, the court refused to interfere with the Board’s witness credibility decisions and sustained the Board’s findings. In its decision the court summed it up succinctly: "This case hinges on the conflicting testimony… This court will not overturn credibility determinations unless the testimony was ‘inherently improbable or discredited by undisputed evidence or physical facts.’" (p. 4) Since Abrams offered no evidence that would meet this test the court affirmed the Board and upheld Abrams’ firing by VA.

© 2020 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written consent from Susan McGuire Smith.


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.