NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
05-3187
LAUREEN TAYLOR
Petitioner,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
_________________________
DECIDED: March 17, 2006
_________________________
Before MICHEL, Chief Judge, MAYER, and LOURIE, Circuit Judges.
MICHEL, Chief Judge.
Laureen Taylor, a Licensed Practical Nurse (“LPN”), appeals a decision of the
United States Merit Systems Protection Board (“Board”) upholding a decision of the
Department of Veterans Affairs removing her from service as a psychiatric nurse at a
Veterans Administration Medical Center (“VAMC”) hospital because of patient abuse.
She was found to have abused a paranoid schizophrenic patient by cutting his hair and
attempting to shave his beard while restraining the patient, after the patient had
repeatedly objected and resisted. Here, Ms. Taylor is not appealing the finding of
patient abuse. Rather, she only appeals the penalty of removal as unreasonable.
Upon removal from the VAMC, Ms. Taylor appealed to the Board. In its initial
decision, the Board mitigated her penalty to a fifteen-day suspension, stating that the
agency failed to properly weigh the relevant factors as to penalty. Taylor v. Dep’t of
Veterans Affairs, No. AT-0752-04-0254-I-1 (M.S.P.B. Aug. 11, 2004) (“Taylor I”). The
agency then petitioned for review of the initial decision. The petition was granted. In its
final decision, the Board overturned the initial decision and sustained the removal
penalty of the agency, reasoning that the agency had properly weighed the relevant
factors. Taylor v. Dep’t Veterans Affairs, 98 M.S.P.R. 337 (2005) (“Taylor II”). Because
we agree with the final decision of the Board that the agency properly weighed the
relevant factors and that the penalty was not unreasonable, we affirm.
I.
Laureen Taylor worked as a psychiatric nurse at the VAMC in Biloxi, Mississippi.
She had worked for the Veterans Administration for seventeen years and had no prior
record of discipline. On the evening of September 23, 2003, Ms. Taylor was making her
rounds dispensing medication to patients. Ms. Trentcosta, a nursing assistant who had
been with the VAMC for approximately one and a half months, was making her rounds
offering haircuts and shaves to patients who requested them.1 At some point while Ms.
Taylor and Ms. Trentcosta were making their respective rounds, Ms. Taylor told the
patient in question, Mr. S,2 that he needed a haircut and that she was going to cut his
1
A barber shop was located on the premises of the medical center.
Patients were able to obtain haircuts and shaves from the barber shop for a fee. It is
undisputed that the psychiatric patient in question, Mr. S, could afford a haircut and
shave from the barber shop, such that lack of financial means was not the reason he
had not obtained a haircut and shave from the barber shop.
2
To protect the confidentiality of the patient, his name is being abbreviated.
05-3187 2
hair, according to her testimony before the VAMC investigative panel.3 Ms. Taylor
testified before the agency investigative panel that he responded that he did not want a
haircut.4 Ms. Taylor admitted to the agency panel that she nonetheless proceeded to
cut his hair.5 Upon completion of the haircut, Ms. Taylor began to shave Mr. S’ beard.
At this point, he verbally objected and physically resisted by “rolling off,” according to
Ms. Taylor’s agency panel testimony.6 Ms. Trentcosta then held the wheel of his
wheelchair to prevent him from leaving, as Ms. Taylor testified. Ms. Taylor related to
the agency panel that she then said to Ms. Trentcosta, “Lisa, don’t hurt yourself
because you know you are pregnant. . . . [G]o get Bruce [Kinnemore].” Ms. Trentcosta
did so. When Ms. Trentcosta returned with Mr. Kinnemore, another nursing assistant,
Mr. S again stated that he did not want his beard shaved, as Ms. Taylor testified before
the agency panel. At that point, Mr. Kinnemore and Ms. Trentcosta “[held] his hand and
his wheel to keep [him] from leaving out,” according to Ms. Taylor’s testimony to the
3
There is some dispute as to whether it was Ms. Trentcosta’s idea or Ms.
Taylor’s idea to cut Mr. S’ hair. Regardless, Ms. Taylor admitted to the agency panel
that she was the one who actually cut his hair and attempted to shave his beard.
4
The number of times that Mr. S said that he did not want a haircut is
disputed. Ms. Taylor asserts that Mr. S said that he did not want a haircut only once,
immediately prior to her giving him a haircut. Yet Mr. S stated that he said that he did
not want a haircut twice prior to Ms. Taylor’s beginning the haircut and that he
“struggled.” Nonetheless, Ms. Taylor does admit that, after she told him that she was
going to cut his hair and prior to her beginning the haircut, Mr. S did state that he did not
want a haircut.
5
Ms. Taylor testified that, during the haircut, Mr. S did not again protest.
Mr. S testified that he did further protest during the haircut.
6
“Rolling off” appears to mean “roll his [wheel]chair to move out – to leave.”
05-3187 3
agency panel. Immediately thereafter, Mr. S again physically resisted.7 In the words of
Ms. Taylor, “that’s when he really started to fussing and cussing.” According to Mr.
Kinnemore’s testimony to the investigative panel, at this point Mr. Kinnemore “put [his]
hands on [Mr. S’] wrists” and “held [Mr. S’] wrists.” Then Mr. S “started kicking and then
started saying no, no, no, and then we stopped,” according to Mr. Kinnemore’s
testimony before the agency panel. Ms. Taylor then ceased attempting to shave Mr. S’
beard.
On September 25, two days later, Mr. S complained about this incident to his
social worker, Alma Jimerson. Ms. Jimerson then made a formal Report of Complaint.
An internal investigation by the Administrative Board of Investigation ensued, led
by Darlene Bellais, RN, the Compliance Officer and Chairperson of the Board of
Investigation. Before the investigative panel, Ms. Taylor was asked, “Laureen, if you
could do anything differently, what would it have been that night?” She responded that
she “didn’t think nothing of it” and that she “cared enough to help him on numerous
occasions to help him clean up.”8 When asked whether she would like to make a final
statement, she replied that she was “sadly hurting that [she] was accused of patient
abuse” and that she “tried to do the best [she] can to help a person, a patient . . . .”
7
Mr. S testified before the agency panel that he did not want to physically
resist too much or too strenuously because of Ms. Trentcosta’s presence and her
pregnant state. Ms. Trentcosta was eight months pregnant at the time of the incident.
Mr. S stated that “she’s pregnant and I didn’t want to wrestle too much with the woman.”
8
Ms. Taylor testified before the agency panel that on a prior occasion, she
had “cut [Mr. S’] hair” and “clean[ed] him up” prior to one of his doctor’s appointments.
That testimony notwithstanding, another nurse, Karen Gillette, Associate Nurse
Executive for Extended Care, testified that it was “common knowledge” that Mr. S did
not like to have his hair cut.
05-3187 4
The panel then proposed removal as the appropriate penalty, based upon a table
of penalty range from reprimand to removal. In a report entitled “Douglas Factors,” the
Deciding Official, Julie Catellier, LPN, Director of the Center, assessed the Douglas
factors to determine whether the proposed penalty of removal would be reasonable.
Two factors in particular had emerged as the most significant to the panel and in the
Douglas Factors report: the nature and seriousness of the offense and the restraint of
Mr. S even after his repeated objection. Based upon this weighing of the Douglas
factors, she found the penalty of removal appropriate. The agency thus removed Ms.
Taylor from her position by a separate decision letter, also signed by Ms. Catellier.
II.
This Court must affirm a Board decision unless it is arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law; obtained without
procedures required by law; or unsupported by substantial evidence. 5 U.S.C. §
7703(c). In determining the appropriateness of a penalty, an agency must weigh the
factors outlined in Douglas v. Veterans Admin., 5 M.S.P.R. 280 (1981). When, as here,
the Board sustains the agency’s charge, the agency’s decision may only be reviewed to
determine whether the agency properly weighed the relevant Douglas factors and
whether the penalty was reasonable based on its weighing of factors. Cantu v. Dep’t of
the Treasury, 88 M.S.P.R. 253 (2001).
The first Douglas factor is the “nature and seriousness of the offense.” 5
M.S.P.R. at 305. In her Douglas Factors report, Ms. Catellier stated that the “alleged
offense is very serious. Ms. Taylor’s assaultive behavior toward the patient[ ] created
an atmosphere the patient perceived as hostile. Ms. Taylor’s inappropriate behavior
05-3187 5
caused undue stress to a patient who relied on her for compassion and professional
service.” The record does not support a finding that Ms. Catellier erred in determining
that this offense was “very serious.” Indeed, the restraint of Mr. S, especially after he
had repeatedly objected and resisted, strongly supports a finding that the offense was
“very serious.” Thus, the nature and seriousness of the offense weighs in favor of a
strong penalty.
Another Douglas factor of particular relevance is the “consistency of the penalty
with any applicable agency table of penalties.” 5 M.S.P.R. at 305. For a first offense of
patient abuse, the table of penalties provides for a penalty ranging from reprimand to
removal. Moreover, Memorandum No. 00-55-00, titled “Protection of Patients from
Abuse,” emphasizes that “[t]he Department of Veterans Affairs has no tolerance for
mistreatment or abuse of patients by its employees” (emphasis in original).9
Indeed, this Memorandum informs employees that “[i]f patient abuse is proven,
appropriate disciplinary action will be taken, including possible dismissal from
employment.”10 Ms. Taylor disputes the statement by Ms. Catellier in Ms. Catellier’s
assessment of the Douglas factors that Ms. Taylor “fails to acknowledge any
wrongdoing.” Ms. Taylor argues that consideration of this allegedly erroneous fact in
the weighing of the Douglas factors unfairly skewed the Douglas analysis. Yet whether
or not Ms. Taylor’s statements to the panel showed such a failure, the other factors
alone, in particular the seriousness of the offense, supported removal as an appropriate
9
The Definitions section of this Memorandum states: “Patient abuse
includes mental, physical, sexual, and verbal abuse, such as the following: (a) any
action or behavior that conflicts with patient’s rights, identified in VA regulations 38 CFR
§ 17.34a; . . . (c) willful violations of a patient’s privacy; . . . (e) willful physical injury.”
10
Ms. Taylor admitted that she is aware of this Memorandum.
05-3187 6
penalty, especially given the zero tolerance policy for patient abuse and the notice to
employees of the definition of patient abuse and the possible penalty of removal.
Thus, the penalty of removal of Ms. Taylor for patient abuse was consistent with the
possible range of penalties for the offense, given the facts of this case.
III.
Because we agree with final decision of the Board that the Douglas factors were
properly weighed, in particular the nature and seriousness of the offense of patient
abuse, we affirm.
05-3187 7