Bowe-Connor v. DVA
17-2011
| Fed. Cir. | Nov 13, 2017Background
- Shelia Bowe-Connor, a clinical pharmacist at the VA Medical Center in D.C., was removed effective May 17, 2013 for three charges: causing delays in patient medications, conduct unbecoming, and disrespectful conduct.
- Incidents underlying charges occurred January 21, January 24, and February 16, 2013 involving unanswered pharmacy phones, disputes about assigned help, and an argument with a SICU pharmacist over a STAT IV medication.
- An MSPB administrative judge (AJ) sustained the charges after a hearing, finding several agency witnesses more credible than Bowe-Connor; the Board denied review and affirmed the AJ (with minor modification).
- Bowe-Connor petitioned this court arguing the Board ignored evidence (including an asserted disability), made an erroneous credibility determination, violated the union collective bargaining agreement/procedural rules, failed to consider her length of service, and engaged in disparate treatment.
- The Court reviews the Board’s factual findings for substantial evidence and credibility determinations as virtually unreviewable; the Court affirms the Board’s decision in full.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Board ignored evidence and a claimed disability | Bowe-Connor: Board/AJ failed to consider exhibits and how her (unnamed) disability affected performance | VA: AJ and Board considered and weighed all evidence; no omitted documents shown | Held: No error; Board considered evidence; substantial evidence supports findings |
| Credibility of witnesses re: conduct unbecoming (STAT IV incident) | Bowe-Connor: She filled the IV request; AJ erred in crediting Dr. Osun | VA: Dr. Osun’s testimony was credible and AJ reasonably preferred it | Held: AJ’s credibility finding upheld as virtually unreviewable; no basis to overturn |
| Alleged violation of collective bargaining procedures / harmful procedural error | Bowe-Connor: Agency failed to provide supervisory notes and fair investigation per CBA | VA: Deciding official relied on contemporaneous written statements and full file; no harmful procedural error shown | Held: Board correctly found no harmful procedural error; no reversible violation of CBA |
| Penalty reasonableness and disparate treatment | Bowe-Connor: Removal was excessive given service and others treated differently | VA: Agency considered Douglas factors including length of service; cited lack of similarly situated employees | Held: Penalty reasonable and aimed at efficiency; disparate treatment not shown; affirmed |
Key Cases Cited
- Miller v. Federal Deposit Insurance Corp., 818 F.3d 1361 (Fed. Cir. 2016) (standard of review for Board decisions)
- Koenig v. Department of the Navy, 315 F.3d 1378 (Fed. Cir. 2003) (credibility and weight of evidence are for the Board)
- Hambsch v. Department of the Treasury, 796 F.2d 430 (Fed. Cir. 1986) (credibility determinations by the AJ are virtually unreviewable)
- Daniels v. United States Postal Service, 726 F.2d 723 (Fed. Cir. 1984) (jurisdictional note on mixed cases when discrimination claim abandoned)
- Anderson v. City of Bessemer City, 470 U.S. 564 (1985) (deference to factfinder credibility determinations)