A Department of Veterans Affairs employee finds herself out of a job for inappropriate conduct towards a patient. (Brison v. Department of Veteran Affairs (CAFC No. 2013-3067 (nonprecedential), 12/9/13)
Brison was a Diagnostic Radiologic Technologist at a VA hospital in Dayton, Ohio. When working with a World War II veteran patient, Brison had to position the patient’s body on a CT scan. Following complaints from the veteran and another witness, the agency’s investigation concluded that Brison was abusive toward the patient. The agency leveled two charges—one of verbal abuse and the other of physical abuse toward the patient—and removed Brison. (Opinion p. 2)
Labeling the charge of “inappropriate conduct toward a patient” as serious and warranting removal, the Merit Systems Protection Board sustained Brison’s removal. She exercised her right to appeal to the Federal Circuit Court of Appeals. However, she has now lost there. Brison argued to the court that the MSPB had “overlooked” evidence that supported her view of events. Not persuaded, the court notes that there was still “substantial evidence” supporting the Board’s decision.
The court also turned aside Brison’s argument that the Board failed to make a finding on each and every Douglas factor (referring to the MSPB case that outlines those factors that are to be weighed by an agency when levying its penalty). Yes, notes the court, the Board’s “explicit discussion of the Douglas factors is short…” but does not amount to reversible error because the court does not demand “ritualistic formality that is of no value to us in our review…” and declines” to upset a Board decision just because it does not explicitly address every reason behind the Board’s action.” (p. 5)
Ms. Brison’s removal by VA stands.