MSPB Agrees That VA Senior Executive Screwed Up, But Not Enough to Fire Her

This story has been updated.

An administrative judge said on Tuesday that he reversed the firing of a Veterans Affairs senior executive because the department failed to prove her actions warranted such severe punishment -- and a 2014 law prevented him from imposing a lighter penalty.

Chief Administrative Judge Arthur S. Joseph said that while he agreed with the VA’s charge that Linda Weiss failed to provide appropriate oversight of a nurse with a dubious record of patient care, the department’s decision to fire Weiss was excessive in light of the facts of the case. “The agency proved that the appellant should have done more, but the appellant proved that her actions were not as egregious as the agency suggests,” Joseph said in his full ruling released Feb. 16.

Joseph said he would have imposed a lighter penalty on Weiss if the law allowed him to, but the 2014 Veterans Access, Choice and Accountability Act prohibits that, so “the only option is to reverse the action outright.” In other cases not involving the 2014 law, Merit Systems Protection Board judges are able, at their discretion, to hand down a less severe punishment for appellants than the department has meted out.

The judge directed VA to reinstate Weiss as director of the Albany Stratton VA Medical Center in upstate New York, which complicates Deputy Secretary Sloan Gibson’s recent comments on the case. Earlier this month, Gibson said he would not return Weiss to her job in Albany, or any other position where she would be responsible for patient safety.

Gibson’s statement came after MSPB released a two-page decision on the Weiss appeal on Feb. 5 to comply with the 2014 Choice Act; that decision reversed her removal, but did not detail the findings or the rationale behind the decision. (The detailed analysis was not released until Feb. 16 “because of a major technical problem associated with the preparation of this decision and an exhaustive review of the voluminous appeal file,” Joseph’s full decision explained.)

The deputy secretary in a statement late Tuesday strongly disagreed with the analysis of the full decision, saying he believed it was "unenforceable under the law," and did not entitle Weiss to be reinstated to VA employment. "I believe today’s decision, which states the judge’s reasoning for the earlier [Feb. 5] decision, is not only wrong for veterans, but also fails to meet the 21-day time limit for appeals decisions mandated by the senior executive accountability provision of the Choice Act."

Gibson also said the decision “runs counter” to the department’s core values. “The judge specifically found that Ms. Weiss left the nursing assistant in a patient care role notwithstanding multiple reports that the nursing assistant mistreated the veterans entrusted to her care,” Gibson said. “Despite this significant patient safety finding, the judge determined that it was ‘unreasonable’ for VA to remove Ms. Weiss. I could not disagree more."

The Weiss case marks the third time in less than a month that MSPB judges have overturned the department’s decisions to discipline senior executives under the 2014 law. In an unusual move, the MSPB on Friday defended its decision-making. “In response to these rulings, some have suggested that MSPB is protecting poor-performing employees at the Veterans Affairs Department," a statement on the agency’s website said. "These suggestions are baseless and unfair.” 

The circumstances of the Weiss case not only highlight the challenges the department faces in removing senior executives under the 2014 law, but they also demonstrate the complexities involved in disciplining rank-and-file federal employees in government.

The VA fired Weiss, who had served as director of the Albany medical center since 2010, because she failed to take appropriate action against then-nursing assistant Marilee Sweet for alleged physical and verbal abuse of patients. In 2014, an administrative investigative board upheld the allegations of patient abuse against Sweet, and Sweet’s supervisor recommended that she be fired. But Weiss, who was the deciding official in the matter, did not think the investigation provided enough evidence to remove Sweet based on the alleged misconduct.

Weiss and Sweet’s supervisor detailed Sweet to other job duties where she was under the direct observation of a nurse manager and psychologist. Under this arrangement, Sweet was not allowed to perform any patient care unsupervised. A subsequent report of Sweet, who previously had received positive job performance reviews, found that Sweet’s “impatience at times, speaking in a sharp loud voice, rough handling while turning a resident, lack of regard for physical privacy, or ignoring residents’ behavioral or verbal cues could be interpreted as a lack of empathy or insensitivity.” Those observing Sweet found that “although her current skills would have been sufficient in the past, she lacks the ability to meet the needs of the resident in the current paradigm of Resident Centered Care.”

The upshot was that Weiss, in consultation with several nursing professionals, decided to reassign Sweet to a job that did not involve patient care. The problem, according to Gibson, was that Weiss failed to take timely action with respect to the reassignment. Sweet agreed to the reassignment on March 20, 2015, but it wasn’t completed until July of that year, so Sweet was still performing patient care duties in that roughly four-month time frame, and according to the record, without supervision (Weiss said she was unaware that Sweet was not being monitored per her order.) Part of the delay involved waiting for a position description for Sweet’s new assignment from human resources.

“Although the appellant may have devoted efforts to reassigning Ms. Sweet, she failed to exercise proper oversight or monitoring in the interim,” Joseph said in his decision. “It appears that she did not make any inquiry to confirm whether Ms. Sweet’s duties remained limited while the reassignment action was processed. The record reflects that the appellant had the authority to detail Ms. Sweet away to another position not involving direct patient care duties while the appellant was working on the reassignment action, but she did not exercise that authority.”

Still, Weiss’ lack of oversight in this instance was not enough to fire her, Joseph said, citing Weiss’ 42 years as a VA employee with an unblemished record and praise from leadership, including Gibson. Joseph also said the VA failed to prove that Sweet represented a “clear, present, and imminent danger to patients,” noting that the record of her performance was more “complicated.”

The decision in the Weiss case, along with the reinstatement of Diana Rubens and Kimberly Graves to the Senior Executive Service, has prompted the VA to propose taking away MSPB appeal rights for senior executives by converting them into Title 38 employees. The proposal, which would require a legislative change, is an about-face for the department, which until last week had maintained that it had sufficient authority to fire employees.