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December 21, 1992

WILLIAM J. WARD, Plaintiff,
EDWARD DERWINSKI, Secretary of Veterans Affairs, et. al., Defendants.

The opinion of the court was delivered by: DAVID G. LARIMER

 This action arises from disciplinary action taken by the Department of Medicine and Surgery ("DM&S") of the Department of Veterans Affairs ("VA"), against plaintiff, William J. Ward, a nurse employed by the VA. Ward was fired after he was found to have mistreated a psychiatric patient under his care.

 Before the Court are defendants' motion to dismiss or, in the alternative, for summary judgment, and plaintiff's cross-motion for summary judgment. *fn1" For the reasons that follow, the parties cross-motions for summary judgment are granted in part and denied in part. The decision of the Secretary of VA ("the Secretary") is vacated insofar as it imposes a penalty of discharge and remanded for reconsideration of the penalty, consistent with this decision.


  On March 31, 1989, plaintiff was assigned to work as a registered nurse on hospital ward 37-B ("ward 37-B") at the Veterans Administration Medical Center in Canadaigua, New York ("VACNY"). Ward 37-B housed approximately fifty male patients, averaging 48 years in age, who were hospitalized for chronic conditions, most of which were psychiatric in nature.

 Plaintiff began working as a registered nurse at VACNY on December 14, 1981. By March of 1989, plaintiff had experience in dealing with psychiatric patients, had never been subjected to disciplinary action and was an active leader of the American Fedration of Government Employees ("AFGE"), the employee labor union at VACNY.

 Sometime during the morning of March 31, 1989, plaintiff spoke with patient W.J. *fn2" in ward 37-B's day room. W.J. is a paranoid schizophrenic with a history of hallucinations and unprovoked attacks on others. On that particular morning, W.J. was in an enclosed chair, with his head down in front of him, resting onthe chair's tray. According to plaintiff, he approached W.J. and called his name twice. W.J. did not respond. Plaintiff observed that W.J. was giggling, speaking to himself and smiling, and he believed that W.J. was hallucinating.

 In an attempt to break through the hallucination, plaintiff said that he patted W.J. on the shoulder and asked him how he was that day. W.J. smiled and responded, "Not good." Plaintiff then asked W.J. "if he felt like fighting or hitting." W.J. smiled and said, "Yes."

  Apparently, it was common for the medical staff to question W.J. about fighting. Occasionally W.J. could tell a nurse whether or not he was about to become assaultive and appropriate action could be taken when such advance warning was given.

 Approximately two weeks later, on April 12, 1989, written incident reports were filed against plaintiff by Valerie Singleton and Mary Ann Houser, two nurse assistants on duty on March 31, 1989, and Barbara Jones, R.N., plaintiff's supervisor. The incident reports alleged that plaintiff had abused patient W.J., as well as two other patients, G.B. and E.S., on March 31, 1989.

 Jones had not seen the alleged acts of patient abuse on either W.J. or G.B., but did witness plaintiff's actions with respect to E.S. Singleton and Houser were in ward-37B's day room on March 31, 1989 and they both claimed to have witnessed the act of patient abuse with respect to W.J. They contend that plaintiff approached W.J. and asked him if he wanted to fight. When W.J. did not respond, plaintiff continued "taunting" W.J. and at one point, according to Singleton and Houser, threatened to put W.J. in restraints, put him in a separate room, and "let the other patients at him."

 Singleton and Houser maintained that this exchange occurred for approximately five minutes and that W.J. was unresponsive for the entire time. Singleton and Houser told Jones about the incident, and she suggested that they write memos to the Medical Director to initiate patient-abuse charges against plaintiff. *fn3"

 An administrative investigation was undertaken to substantiate the patient abuse charges. The investigation was commenced on April 21, 1989 and completed on July 7, 1989 by a three member panel. The panel included the Chief of Pharmacy Service, a social worker, and a nurse. Nine employees were interviewed and their statements were recorded. Only Singleton and Houser testified regarding the alleged abuse of W.J.

 Upon completing their investigation, the panel determined that the charges of patient abuse with respect to all three patients had been substantiated and recommended that plaintiff be discharged. The Associate Deputy Medical Director of the VA approved the panel's findings and the proposed sanction.

 A letter of proposed discharge under 38 U.S.C. § 4110 was sent to plaintiff on September 15, 1989. Exercising his rights under 38 U.S.C. § 4110, plaintiff requested a hearing before a DM&S Disciplinary Board ("the Board").

 For two days beginning on March 19, 1990, the Board met and heard evidence from plaintiff, Singleton, Houser and other witnesses concerning the three alleged incidents of patient abuse. The Board determined that the charges of patient abuse against patients G.B. and E.S. were not sustained, but that the charges of abuse against W.J. were sustained. Discharge was once again recommended as the penalty.

 The Chief Medical Director of the VA accepted the Board's decision and recommended that plaintiff be discharged for the violation. Plaintiff appealed the Chief Medical Director's decision to the Secretary and on November 29, 1991, the Secretary sustained the Medical Director's decision.


 This action was commenced in Federal District Court for the District of Columbia on April 26, 1991. In his amended complaint plaintiff claimed that the decision of the Secretary, in accepting the recommendation of the Board, was arbitrary and capricious and not supported by substantial evidence. He sought review of the decision under the Administrative Procedure Act ("APA"), 5 U.S.C. § 706.

 In addition, Plaintiff claimed that his Fifth Amendment rights were violated because the decision to terminate him for this particular offense was not in keeping with the VA's policy of "like penalties for like offenses." He claimed that other registered nurses received less severe penalties for conduct which was much more egregious than the conduct for which he was terminated. Further, plaintiff claimed that his First Amendment rights were violated because he was discharged in retaliation for his past participation in union activities.

 The parties originally filed their cross-motions before Judge Gerhard Gesell in the District of Columbia. Judge Gesell did not rule on the merits but transferred the case to the Western District of New York, the district within which the VA Medical Center at Canandaigua is located. The parties renewed their motions before me and, at the Court's ...

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