AGENCY OFFICIALS' PROMISES TO TAKE ACTION IN MATTER OF CONGRESSIONAL INTEREST DID NOT DENY DUE PROCESS IN REMOVAL DECISION
Patient scheduling problems at some facilities of the VA led to intense congressional scrutiny, hearings, testimony of VA officials, with promises of remedial action, but that did not constitute political pressure sufficient to set aside a removal decision by a VA official who was determined to have given fair consideration to a reply. The court also determined that the Board and VA properly determined that the appellant had a duty as a manager to more intensely monitor efforts by subordinates to control scheduling difficulties:
Mr. Robinson was a member of upper-level management responsible for ensuring that HAS personnel complied with the policies set forth in the Scheduling Directive. Instead, he took a hands-off approach to managing the scheduling problems at Phoenix VA despite knowing the severity of scheduling problems permeating the system. Accordingly, the Board did not err in sustaining the negligence charges against Mr. Robinson.
The court accepted the Board's analysis in Miller v. Dep't of Health & Human Servs., 8 MSPR 249 (1981), assessing a charge of supervisory negligence through a factor analysis of (1) the knowledge the supervisor had, or should have had, of the subordinate's misconduct; (2) the existence of policies or practices relevant to the misconduct; and (3) the extent to which the supervisor directed or acquiesced to the subordinate's misconduct.
Robinson v. VA, Fed. Cir. 2017-2143 (May 6, 2019)