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Kreso v. Shinseki

United States District Court, D. Colorado

September 9, 2014

ERMIN KRESO, M.D., Plaintiff,
ERIC SHINSEKI, Secretary, United States Department of Veterans Affairs, and THE UNITED STATES VETERANS' ADMINISTRATION, Defendants

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For Ermin Kreso, M.D., Plaintiff: Rosemary Orsini, LEAD ATTORNEY, Ellen Elizabeth Stewart, Berenbaum Weinshienk, PC, Denver, CO.

For Eric Shinseki, Secretary, United States Department of Veterans Affairs, United States Veterans' Administration, Defendants: Susan Begesse Prose, LEAD ATTORNEY, U.S. Attorney's Office-Denver, Denver, CO.

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Robert E. Blackburn, United States District Judge.

This matter is before me on the Plaintiff Ermin Kreso, M.D.'s Opening Brief [#28][2] filed June 19, 2012. The defendants filed a response [#31], and the plaintiff filed a reply [#37].

The plaintiff, Ermin Kreso, M.D., was an employee of the United States Department of Veterans Affairs (VA). His employment was terminated by the VA. In this case, he challenges his termination and seeks review of the findings on which his termination was based, reversal of his termination, reinstatement, and back pay. I affirm the decision of the VA.


Under 38 U.S.C. § 7462, an employee affected adversely by a final order or decision of a Disciplinary Appeals Board may obtain judicial review of the order or decision. Dr. Kreso seeks review of a decision by a Disciplinary Appeals Board. This court has jurisdiction under both § 7462 and 28 U.S.C. § 1331 (federal question).


Section 7462(d)(2) provides the applicable standard of review.

(2) In any case in which judicial review is sought under this subsection, the court shall review the record and hold unlawful and set aside any agency action, finding, or conclusion found to be--
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

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(B) obtained without procedures required by law, rule, or regulation having been followed; or
(C) unsupported by substantial evidence.

Generally, an agency is required to follow its own regulations. Bar MK Ranches v. Yuetter, 994 F.2d 735, 738 (10th Cir. 1993). However, " an agency's interpretation of its own regulations, including its procedural rules, is entitled to great deference." Id. Such interpretations are subject to rejection only when they are " unreasonable, plainly erroneous, or inconsistent with the regulation's plain meaning." Id.

When reviewing the factual findings of an agency, the evidence on which such findings are based must be substantial, meaning " such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1581 (10th Cir. 1994). " Evidence is not substantial if it is overwhelmed by other evidence or if it constitutes mere conclusion." Id. (citations omitted). The substantiality of the evidence must be based on a review of the record as a whole, and the reviewing court is not free to disregard contrary evidence in the record. Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir. 1994). An agency's decision is entitled to a presumption of regularity, but that presumption does not shield agency action from thorough review. Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1574 (10th Cir. 1994). When the VA takes a major adverse action, such as termination, against an employee in the classification held by Dr. Kreso, " (t)he Department bears the burden of proving by a preponderance of the evidence the charges that form the basis for the action." VA Directive 5021/3, Appendix A, § 6.b.; D1009.

Applying the arbitrary and capricious standard, a reviewing court must

ascertain whether the agency examined the relevant data and articulated a rational connection between the facts found and the decision made. In reviewing the agency's explanation, the reviewing court must determine whether the agency considered all relevant factors and whether there has been a clear error of judgment. Agency action will be set aside if the agency relied on factors which Congress has not intended for it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.

Olenhouse, 42 F.3d at 1574 (footnotes, citations, and internal quotation marks omitted).


I review here the basic facts which underlay this case. In many of the issues raised by Dr. Kreso, there is some dispute about the proper view of the evidence presented to the Disciplinary Appeals Board (DAB) which made the final decision to terminate the employment of Dr. Kreso. In addition, Dr. Kreso challenges the propriety of some of the factual determinations of the DAB. The details of these disputes about the evidence and fact findings are detailed in the analysis below.[3]

Dr. Kreso was a full time, permanent employee employed by the VA to work as

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a physician. During the relevant time period, Dr. Kreso worked in the emergency department (ED) at the Denver VA Medical Center. In late April and early May 2009, complaints about the conduct of Dr. Kreso in the ED were brought to the attention of his superiors. In May 2009, Lynette Roff, Medical Center Director, initiated an investigation of Dr. Kreso by an Administrative Investigation Board (AIB). On November 13, 2009, Dr. Don Weinshenker, the associate chief of staff for ambulatory care and the second line supervisor for Dr. Kreso, gave Dr. Kreso a memorandum advising Dr. Kreso of his proposed discharge (Proposed Discharge Memorandum). D1361 - D1365. The memorandum detailed six different charges against Dr. Kreso. Some charges included sub-categories referred to as specifications.

On November 17, 2009, Dr. Kreso asked the VA to provide him additional information before he responded to the charges. D1153. In his November 20, 2009, response, Dr. Weinshenker provided additional information and stated that Dr. Kreso had received all documents " considered by the AIB and me in proposing the removal action. No other records were considered." D1291. On November 27, 2009, Dr. Kreso submitted his response. D1208 - D1289. On December 10, 2009, the AIB gave Dr. Kreso a separate response to some of his requests for additional information. Dr. Kreso submitted a supplemental reply, D1182 - D 1185, and he attended an oral reply meeting on February 1, 2010. D1169. In a memorandum dated March 11, 2010, Ms. Roff, the Medical Center Director, informed Dr. Kreso that she had discharged him from employment. D1110 - D1111. Ms. Roff sustained charges 1, 2, 3, and 6 as stated in the Proposed Discharge Memorandum. D1361 - D 1365. Charges 4 and 5 were not sustained.

Dr. Kreso appealed to the VA Under Secretary for Health and requested a hearing before a Disciplinary Appeals Board (DAB). D2165 - D2353. The DAB held a three day hearing in October 2010. Following the hearing, the DAB issued a Board Action which included findings on each charge. D2127 - D2152. Charge 1 was sustained in part, charge 2 was not sustained, charge 3 was sustained in part, and charge 6 was sustained in whole. D2127. The DAB affirmed the penalty of discharge. D2127. On March 17, 2011, the Principal Deputy Under Secretary for Health affirmed the decision of the DAB. D2152.

The charges and specifications sustained by the DAB included:

Charge 1 - Failure to attend to patients presenting to the ED for treatment.
o Specification 1 - Concerned patient WB presenting in the ED on May 11, 2009, with urinary problems.
o Specification 2 - Concerned patient DW from Salt Lake City presenting to the ED on May 10, 2009, for completion of his lodging request while in need of oxygen.
o Specification 5 - Concerned patient IS presenting to the ED on April 29, 2009, with a complaint of inability to sleep due to coughing, congestion, and sore throat.
Charge 3 - Patient Neglect - Delay of care to patients
o Specification 1 - Concerned patient GS, a quadriplegic, presenting to the ED on May 7, 2009, with fever, change in breathing, thick sputum, and difficulty suctioning his tracheostomy. Dr. Kreso was charged with downgrading this patient's Triage Level from a 3 to a 4, resulting in a long delay in the treatment of the patient.

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Charge 6 - Disruptive behavior - On May 22, 2009, Dr. Kreso verbally confronted Judy Cooley, a hospital employee, on two separate occasions concerning scheduling issues.

All other charges and specifications were not sustained during the process which culminated in the decision of the DAB and the affirmance of that decision by the Principal Deputy Under Secretary for Health.

On September 9, 2011, Dr. Kreso filed his complaint in this court seeking judicial review of the decision by the VA to terminate his employment. The sustained charges and specifications summarized above are the subject of the challenges presented by Dr. Kreso. Dr. Kreso contends the DAB acted improperly when it upheld his termination based on the charges summarized above.


A. Charge 1 - Failure to attend to patients presenting to the ED for treatment

Specification 1 - The DAB summarized the facts of Charge 1, Specification 1 as follows: Patient WB presented to the ED at 5:23 a.m. on May 11, 2009, complaining of dysuria and difficulty with flow in his catheter. WB has a history of bladder cancer. Registered nurse (RN) Floris McNeal manipulated the catheter and resolved the issue. At 6:10 a.m., registered nurse Susan West informed Dr. Kreso of the presence of the patient and the treatment provided by Ms. McNeal. Before reviewing the medical record of the patient, Dr. Kreso instructed Ms. West to send the patient home. A short time later, Dr Kreso reviewed the record in the computer and entered a computer note. He did not examine or interact with the patient. Reviewing the medical record had no part in the decision to send the patient home. D2132. Shortly after he arrived at the ED, this patient was triaged at level 3. D1401.

The DAB found this series of events to be a violation of ED policy and instructions given to Dr. Kreso by his superiors. Because Dr. Kreso did not examine WB, the board concluded, WB did not receive an examination by a qualified medical practitioner. The DAB concluded that the ED is obligated under the Emergency Medical Treatment and Labor Act (" EMTALA" ), 42 U.S.C. § 1395dd, to provide such an examination to every patient.[4] Dr. Kreso said he was aware of this policy and ED supervisors, Dr. Baker and Dr. Weinshenker, testified that they had informed Dr. Kreso of this policy. D2133.

Dr. Kreso is critical of the conclusions of the DAB on this specification for several reasons. First, he notes that witnesses testified at the hearing that repositioning, deflating, and re-inflating a Foley catheter is well within the scope of nursing practice in Colorado. The unstated implication of this argument is that, applying the scope of nursing practice in Colorado, Dr. Kreso was not required to see patient WB. However, the record is replete with evidence that the policies in effect at the Denver VA Medical Center required Dr. Kreso to see this patient. The DAB considered the policies in effect at the time and the discussions the supervisors of Dr. ...

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