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Riano v. McDonald

United States Court of Appeals, Seventh Circuit

August 17, 2016

James E. Riano, Plaintiff-Appellant,
Robert A. McDonald, Secretary of Veterans Affairs, Defendant-Appellee.

          Argued January 11, 2016

         Appeal from the United States District Court for the Eastern District of Wisconsin. No. 11-cv-939 Charles N. Clevert, Jr., Judge.

          Before Easterbrook, Williams, and Sykes, Circuit Judges.

          Williams, Circuit Judge.

         James Riano worked as a registered nurse for the Veterans Health Administration, which is part of the U.S. Department of Veterans Affairs. While examining male patients for genital warts, Riano manipulated their penises with his hands, attempting to induce erections. He also used words like "pecker" and "balls, " rather than medical terms. The agency found his examination technique and his language to be inappropriate, so he was fired. He appealed and was given a hearing that included representation by counsel, live testimony from medical experts, written testimony from patients, and a written report from an investigator who had interviewed the patients. The appeals board affirmed his termination.

         Riano sought review in federal district court, and now appeals to this court, arguing that the agency's procedures were constitutionally inadequate. He complains that he was not allowed to call patients to testify live. Live testimony, he argues, would have shown that some patients were comfortable with his technique and language, and also might have shown that complaining patients had ulterior motives. But the board's decision to affirm Riano's termination was based on its determination that his technique and language were inappropriate. That was a professional judgment that did not turn on the patients' subjective views. And Riano does not dispute the relevant details about his technique and language. So he has failed to show that he was harmed by the lack of live patient testimony. We affirm.

         I. BACKGROUND

         A. Allegations and Initial Termination

         In the late 1970s and early 1980s, Riano was a hospital corpsman in the Navy. As a civilian, he became a registered nurse. In 2004, he began working as a registered nurse for the Veterans Health Administration at a medical center in Milwaukee. In the summer of 2007, he began working in the center's new clinic, which specialized in treating genital warts. In January 2008, a patient accused him of sexual assault. According to the allegations, Riano told the patient that it was easier to see genital warts on an erect penis, and during each visit, Riano used his hands to stimulate the patient's penis until it was erect. Twice, the patient ejaculated.

         Joe Cossairt, a Special Agent in the agency's Office of the Inspector General, investigated Riano. Cossairt sent questionnaires to the forty-eight patients Riano had treated, and conducted follow-up interviews with the twenty-two who responded. Cossairt concluded that Riano had manipulated patients' penises with his hands (sometimes using over-the-counter moisturizing cream), and had used inappropriate non-medical language with patients. After reviewing the report, the chief of dermatology opined that Riano's technique was not standard and not medically necessary.

         In December 2009, the manager of the medical division recommended that Riano be fired because of his inappropriate language and technique. Riano responded orally and in writing, arguing that his method of causing erections to conduct examinations was appropriate and was what he had learned in the Navy. The center's associate medical director of nursing recommended Riano be fired, and the center's director agreed.

         B. Appeal Within Agency

         1. Appeals Board's Evidentiary Rulings

         Riano appealed and was given a hearing. He had learned the identities of some (but not all) of the patients who had submitted written responses to the investigator's questionnaire. Riano's lawyer contacted those patients and some were supportive of Riano, saying they were comfortable with his language and technique. Additionally, some were critical of the investigator, saying his questions were too suggestive, he took their answers out of context, and he raised an inappropriate consideration by asking if they believed Riano was gay.

         These supportive patients submitted written statements to the appeals board. Riano asked the board to let the patients testify live, and he also asked for the names of all patients who spoke to the investigator. The agency also asked to present live testimony from some patients. The board denied these requests, citing patient privacy, potential emotional harm, and the adequacy of the patients' written statements. The board also denied Riano's request to present ...

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