NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3103
ROBERT N. MCINTOSH,
Petitioner,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
Robert N. McIntosh, of Chicago, Illinois, pro se.
Courtney E. Sheehan, Trial Attorney, Commercial Litigation Branch, Civil
Division, United States Department of Justice, of Washington, DC, for respondent. With
her on the brief were Jeffrey S. Bucholtz, Acting Assistant Attorney General; Jeanne E.
Davidson, Director; and Kirk T. Manhardt, Assistant Director.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3103
ROBERT N. MCINTOSH,
Petitioner,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
Petition for review of the Merit Systems Protection Board in CH0752070272-I-2.
______________________________
DECIDED: June 9, 2008
______________________________
Before MICHEL, Chief Judge, FRIEDMAN, Senior Circuit Judge, and RADER, Circuit
Judge.
PER CURIAM.
The Merit Systems Protection Board (“Board”) upheld the Department of
Veterans Affairs (“Department”)’s termination of one of its employees for patient abuse.
We affirm.
This case arises out of a verbal altercation between the appellant, Robert N.
McIntosh (“McIntosh”), a medical technician at a Department Hospital, and a patient
whose hospital room he entered to take the patient’s vital signs. The Department
credited the patient’s version of what happened, and removed McIntosh for “patient
abuse and using intimidating language towards a patient.”
After a hearing, the Board’s administrative judge affirmed the removal in her
initial decision, which became final when the Board refused to review it. We affirm that
decision, primarily for the reasons given in that opinion.
The administrative judge stated that the issue was “one of credibility.” There was
a sharp disagreement among the witnesses over what happened. The patient
described improper and threatening statements McIntosh allegedly made to him. The
patient’s teenage brother, who was present in the room, corroborated the patient’s
testimony. McIntosh denied making the statements attributed to him and gave a quite
different version of what happened.
The administrative judge determined that the patient’s version of the events was
“more credible than the appellant’s based on the inherent improbability of the
appellant’s version, [the patient’s] lack of motive to invent the complaint, [the patient’s]
version painting himself in an unflattering light, and [the patient’s] version having been
corroborated by his brother who was present at the scene.” We have no reason to
reject that credibility determination.
We also affirm the administrative judge’s sustaining of the penalty of removal as
reasonable. After reviewing the relevant Douglas factors, Douglas v. Veterans
Administration, 5 M.S.P.R. 280, 305-06 (1981), she found that McIntosh’s “brief tenure
and the seriousness of his offense in connection with his position outweigh[ed] the
mitigating circumstances [(provocation)] surrounding this event.” She, therefore,
properly concluded that the agency did not abuse its discretion in removing McIntosh.
2008-3103 2
We have considered McIntosh’s other contentions, but deem them unpersuasive.
The decision of the Board affirming McIntosh’s removal is
AFFIRMED.
2008-3103 3