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GERGANS v. BROWN

September 26, 1995

GREGORY A. GERGANS, M.D., Plaintiff,
v.
JESSIE BROWN, Secretary, Department of Veteran Affairs, Defendant.



The opinion of the court was delivered by: ASPEN

 MARVIN E. ASPEN, Chief Judge:

 Plaintiff Gregory Gergans, M.D., brings this one-count complaint for declaratory judgment against defendant Jessie Brown, Secretary of the Department of Veterans Affairs ("the Department"), alleging that the Department failed to provide him with the proper procedures in appealing his discharge from employment. Presently before this court are the parties' cross-motions for summary judgment. *fn1" For the reasons set forth below, plaintiff's motion is denied and defendant's motion is granted.

 I. Background

 Dr. Gergans, a specialist in nuclear medicine, was employed by the Department for eighteen years as a medical doctor at various VA hospitals. Sometime around January 1993, plaintiff was transferred to the Edward Hines, Jr. Hospital ("Hines") and fell under the supervision of Dr. Mark Boles, Acting Chief of the Nuclear Medicine Service. Apparently, their relationship started off poorly and never improved. Dr. Boles scolded Dr. Gergans for taking excessive amounts of annual and sick leave, failing to be at the hospital during required hours, and failing to satisfy his teaching and research obligations. In response, Dr. Gergans accused Dr. Boles of age and religious discrimination because he refused plaintiff's requests for an altered tour of duty and more leave time, required plaintiff to sign-in every day, and provided plaintiff with inadequate employment conditions. Dr. Gergans aired all of these complaints in a memo to Dr. Boles on April 5, 1993, which ended: "Do you think you are going to remain safe when you send me these potentially career damaging memos in common mail boxes and leave them loose upon desks?" Plaintiff's 12(M) Ex. 24; Defendant's 12(M) Ex. D2. *fn2" Dr. Boles interpreted this last sentence as a threat, and informed Dr. Gergans that "further comments, behavior, or actions of this nature can lead to disciplinary action up to and including your removal." Plaintiff's 12(M) Ex. 10; Defendant's 12(M) Ex. D4. Dr. Boles also referred plaintiff to the employee counselling service because of his inappropriate behavior.

 Friction between plaintiff and his supervisors did not end with this exchange. In an August 5, 1995 letter, Dr. Gergans requested the Chairman of Nuclear Medicine at Loyola University Medical Center to review a patient's medical records to determine if a misadministration of radioactive treatment had occurred at Hines. The Chairman responded that the treatment given to the patient was proper, and expressed his concern over plaintiff's decision to seek review of this treatment from him, rather than from his direct superiors at Hines. Dr. Gerasim Tikoff, Chief of Staff at Hines, was informed of this incident, and proposed a formal reprimand of Dr. Gergans based on his unapproved request for a peer review and unauthorized disclosure of patient records. Dr. Gergans received notice of this proposal, and a reprimand was issued to him on August 31, 1993 by the Director of Hines.

 Despite this disciplinary action plaintiff still refused to cooperate with the Board. On October 8, 1993, he was notified of his proposed suspension because of his noncompliance with the direct orders of Dr. Tikoff. Plaintiff did not respond to the notice of proposed suspension, and on November 2, 1993, he was given a fourteen day suspension. In a letter informing him of the suspension, the Director of Hines stated that because plaintiff's suspension "involve[d] a question of professional conduct or competence, [he] had the right to appeal this decision to the Disciplinary Appeals Board and to request a formal hearing before the Board." Plaintiff's 12(M) Ex. 3; Defendant's 12(M) Ex. D21. However, on December 10, 1993, the Director amended her notice to indicate that the suspension was actually issued for reasons not related to Dr. Gergans's professional conduct or competence, but rather, for his refusal to follow the direct order of a superior. Therefore, the Director contended, any appeal of the suspension decision could not be presented to the Disciplinary Appeals Board, but needed to be brought under the Department's grievance procedures. *fn3"

 This suspension obviously did not change Dr. Gergans's stance; he continued to refuse the Board's request for an examination and failed to report to the Board as ordered at the end of his suspension, thereby causing him to be classified for a second time as absent without leave. On December 13, 1993, Dr. Tikoff informed plaintiff that the Department was considering discharging him because of his failure to report to the Board as ordered, and because of his absence from the hospital without approved leave. *fn4" On January 11, 1994, the Director of Hines notified Dr. Gergans that he was discharged from employment effective January 18, 1994, for the two violations of federal regulations cited in the proposed letter of discharge. The Director also informed plaintiff that the discharge was not appealable to the Disciplinary Appeals Board, since it did not involve a question of his professional conduct or competence. Nonetheless, plaintiff immediately notified the Department's Central Office that he wanted to appeal the discharge to the Disciplinary Appeals Board. Although it appears that Dr. Gergans was subsequently given a hearing before the grievance board, he nonetheless filed this action in July 1994 seeking a declaration that the Department violated its own regulations by discharging him without permitting an appeal to the Disciplinary Appeals Board.

 II. Summary Judgment Standard

 A motion for summary judgment will be granted if "there is no genuine issue of material fact and . . . the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). In deciding a motion for summary judgment, the facts must be read in a light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 III. Discussion

 Both parties contend that no material issues of fact remain in dispute, but they disagree as to the legal conclusions we should draw from these facts. Plaintiff asserts that the Department failed to follow its own regulations and procedures in denying him review before the Disciplinary Appeals Board. Defendant maintains that its actions were consistent with its regulations and that Dr. Gergans received all the procedures to which he was entitled.

 We begin our discussion with the statutory framework at issue. *fn5" When an authorized official of the Department brings charges against an employee, and these charges lead to adverse personnel action, the employee is entitled to appeal the action to another decisionmaker in the agency. 38 U.S.C. § 7461(a). In the case of a major adverse action, such as suspension or discharge, *fn6" the employee is entitled to an appeal before the Disciplinary Appeals Board "if the case involves or includes a question of professional conduct or competence." 38 U.S.C. § 7461(b)(1); see also id. § 7462 (outlining appeal process before Disciplinary Appeals Board). However, if the major adverse action does not involve or include a question of professional conduct or competence, the employee may not appeal the decision to the Disciplinary Appeals Board, but must appeal through the grievance procedures provided in 38 U.S.C. § 7463 or the employee's collective bargaining agreement. Id. § 7461((b)(2). A question of ...


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