testimony on behalf of lance robinson (00064892x87c30)

7/23/2019 Testimony on Behalf of Lance Robinson (00064892x87C30)

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SHAW BRANSFORD ROTH P.C.

ttorneys

t

Law

1100 Connecticut Avenue NW Suite 900

Washington

D

20036

Tel 202 463 8400

www.shawbransford.com Fax 202.833.8082

December 28, 2015

VIA ELECTRONIC MAIL AND FEDEX

The Honorable John Hardy Isakson

Chairman

United States Senate Committee on Veterans' Affairs

Russell Senate Building, Room 412

Washington, D.C. 20510-6050

public_ [email protected]

The Honorable Richard Blumenthal

Ranking Member


Russell Senate Building, Room 412

Washington, D.C. 20510-6050

public_ [email protected]

Re: Testimony

on

Behalfof Lance Robinson

December 14, 2015 Field Hearing

Dear Chairman Isakson and Ranking Member Blumenthal:

We write on behalf of our client, Mr. Lance Robinson, Associate Director of the Phoenix

VA Health Care System,

U.S. Department

of

Veterans Affairs ( VA ) to provide testimony for

the public record

of

the Committee on Veterans' Affairs ( Committee ) December

14

2015

Field Hearing, Keeping the Promise for Arizona Veterans: the V.A. Choice Card, Management

Accountability and Phoenix V.A. Medical Center ( Field Hearing ).

1

We specifically write to

correct the inaccurate testimony that the VA Under Secretary for Health, Dr. David Shulkin,

gave during the Field Hearing regarding Mr. Robinson's employment status.

I.

BACKGROUND

As you may already be aware, the VA placed Mr. Robinson on paid administrative leave

from his employment with the

V

beginning May 2, 2014.

ee

Summary of Investigations and

1

At the both the beginning and at the end of the Field Hearing, Senator Daniel Sullivan invited

members

of

the public to submit written testimony to be part

of

the official hearing record by e

mailing their testimony to [email protected]

by

December 28, 2015.






December 28,2015

Known Outcomes, enclosed as Exhibit ( Ex. ) 1 at

1;

Administrative Leave Memorandum,

enclosed Ex. 2. On May 30, 2014, VA Deputy Chief

of

Staff Hughes Turner issued a notice

proposing to remove Mr. Robinson from his position and from the federal service, based entirely

on the VA s assertions that Mr. Robinson is culpable for patient care access issues at the Phoenix

VA Health Care System ( Phoenix VA ).

ee Ex.

1

at

1;

Notice

of

Proposed Removal,

enclosed

as

Ex. 3.

Pursuant to Title 5 of the U.S. Code, the VA was only required to provide Mr. Robinson

with 30 days' advance notice of his removal. ee 5 U.S.C. § 7513(b)(1). During that advance

notice period, the VA could have received and evaluated Mr. Robinson's verbal and written

responses

to

the proposed removal. But the VA extended Mr. Robinson's response deadlines

beyond the statutorily required 30-day notice period without explanation and over Mr.

Robinson's express objections. ee Letter from Julia Perkins to Kevin Hanretta dated June 16

2014, enclosed as Ex. 4.

Mr. Robinson replied to the substance of the proposed removal in writing on June 13

2014, keeping with the original submission deadline, and verbally, in person to the deciding

official, Assistant Secretary Kevin Hanretta, on July

11

2014. ee Ex. 1 at

1.

The VA has thus

had the statutory authority to effect Mr. Robinson's removal since July 11, 2014, but it has

declined to exercise that authority. The proposed removal remains pending and Mr. Robinson

remains on paid administrative leave.

ee

Letter from Julia Perkins to Kevin Hanretta dated May

12,2015, enclosed as Ex. 5.

Instead

of

taking action on the pending proposed removal, since at least December 2014,

the VA has engaged in activity that suggests it is attempting to uncover some act of misconduct

buried within Mr. Robinson's twenty-eight years of exemplary service to Veterans to

substantiate an adverse action against him. ee Ex. 1. These actions create the logical inference

that the VA has already decided it cannot sustain the pending proposed removal before an

independent adjudicatory authority,

3

but remains determined to remove Mr. Robinson because of

the political pressure to

do

so.

2

Mr. Robinson was placed on administrative leave at the same time as his two Phoenix VA

colleagues, Health Administration Services Chief Brad Curry and former Director Sharon

Helman, while the VA Office of Inspector General investigated allegations of Veterans dying on

secret wait lists within the health care system.

3

If the VA were to sustain the currently pending proposed removal against Mr. Robinson, Mr.

Robinson would have the right to appeal his removal to the Merit Systems Protection Board

( MSPB ), where the VA would be required to prove its case against Mr. Robinson by a

preponderance

of

the evidence. ee 5 U.S.C. § 7701; 5 C.F.R. § 1201.56(c)(2) (Defining






December 28, 2015

As far as Mr. Robinson is aware, he has been vindicated each time an independent

adjudicatory authority has reviewed any VA report regarding access issues and alleged

retaliation against a Phoenix VA employee, Ms. Paula Pedene. For example, the VA removed

Ms. Sharon Helman from her position

as

Director o the Phoenix VA and from the federal

service, in part, on allegations that she was responsible for access issues the Phoenix VA, relying

in part upon the same evidence it used to propose Mr. Robinson's removal for those same access

issues. On her subsequent appeal to the Merit Systems Protection Board ( MSPB ), an

administrative judge found the VA had failed to prove its allegations against Ms. Helman

regarding access issues at the Phoenix

VA. See Helman v Dep 't o Veterans Affairs,

MSPB

Docket No. DE-0707-15-0091-J-1 (Dec. 22, 2014), enclosed as Ex. 6.

As part o her removal action, the VA also charged

Ms.

Helman with conduct she knew

or should have known ... could be perceived as whistleblower reprisal against

Ms.

Pedene,

relying upon an October 30, 2014 Administrative Investigation Board report issued by Mr.

Michael Culpepper, for which neither Ms. Helman nor Mr. Robinson were interviewed.

Id., at

21-22. But on Ms. Helman's appeal to the MSPB, the administrative judge exonerated

Mr.

Robinson

as

to that allegation, concluding, Robinson would have taken the same action (against

Ms. Pedene], Pedene's disclosures notwithstanding.

5

d.,

at 32.

preponderance o the evidence as, (t]he degree o relevant evidence that a reasonable person,

considering the record as a whole, would accept as sufficient to find that a contested fact is more

likely

to

be true than untrue. );

see also

Ex.

5

at

n.

3 ( . .. the Agency's refusal to issue a

decision on his proposed removal prevents Mr. Robinson from a name clearing before an

impartial adjudicator outside the Agency. ).

4

As Dr. Shulkin told the Committee, the VA reached settlements with the Office o Special

Counsel ( OSC ) on claims

o

whistleblower reprisal at the Phoenix VA. In a September 29,

2014 press release, OSC referred to the settlements

as

significant. We note the VA reached

settlement with OSC on those claims before conducting the investigation it subsequently relied

upon in removing Ms. Helman. The VA's post-OSC settlement investigations, including Mr.

Culpepper's October 30, 2014 report on

Ms.

Pedene's claims, therefore appear little more than

the VA's effort

to

justify its settlements after the fact. In other words, the results o those

investigations appear pre-determined to find whistleblower reprisal to justify the VA' s hasty

settlement agreements.

5

The administrative judge also highlights the VA's own finding in Mr. Culpepper's report that

Ms.

Pedene was observed violating agency computer security policies, apparently for a second

time, potentially justifying the allegedly retaliatory conduct against her.

See

Ex. 6, at 31.






December 28, 2015

Other processes insulated from the influence

ofVA

Central Office management have also

vindicated Mr. Robinson regarding other allegations

of

misconduct.

See Laney v. Dep t

o

Veterans Affairs

MSPB Docket No. DE-1221-15-0139-W-2 (Oct. 4, 2015), enclosed as Ex.

7

at

15

(finding Mr. Robinson did not retaliate ); Ex.

1

at 2 (Mr. Robinson cleared

of

allegations

of

discrimination against Employee A.);

see also

Letter from Julia Perkins to Paula Stokes dated

October 19, 2015, enclosed as Ex. 8 (summarizing details

of

VA investigations into Mr.

Robinson's conduct).

Against the backdrop

of

that reality,

of

which the

VA

is well aware, Dr. Shulkin provided

inaccurate information to the Committee during its Field Hearing. We now submit this written

testimony to provide you with additional information regarding the V

A's

actions against Mr.

Robinson and to correct Dr. Shulkin's testimony. ·

II. DISCUSSION

Dr. Shulkin provided inaccurate information to the Committee in his prepared opening

remarks and in response to questioning from Senator John McCain.

A.

The

VA's

access to witnesses has not been impeded

by

either the Department

of

Justice or the

VA

Office

of

Inspector General.

In his prepared opening remarks, Dr. Shulkin stated,

VHA's

efforts to issue disciplinary

actions in Phoenix and to resolve the administrative leave status

of

two employees have been

delayed by inability to interview witnesses who have not been cleared by the U.S. Attorney's

Office ...

See

Field Hearing Transcript, enclosed as Ex. 9 at 24. Dr. Shulkin repeated the

substance

of

that statement in response to a question from Sen. McCain, stating,

We

would

very, very much like to conclude our administrative and disciplinary actions against those two

officials. The U.S. attorney as,

I've

said in my statement has prohibited us from interviewing

those individuals

...

.

/d.

at 32. Those statements are inaccurate.

While Mr. Robinson was still under criminal investigation, the VA called him to testify

about subjects including patient wait time issues and alleged retaliation against Ms. Pedene

before an Administrative Investigation Board ( AlB ) on December 17, 2014, the same day he

was scheduled to testify as a witness for Ms. Helman in her MSPB appeal.

6

See

Ex.

8

at 88-89

(Affidavit

of

Lance Robinson).

6

The VA cancelled Mr. Robinson's December 17, 2014 AlB interview soon after Ms. Helman

withdrew her request for a hearing.






December 28, 2015

On April 22, 2015, the U.S. Attorney's Office for the District

of

Arizona informed Mr.

Robinson that it would decline to prosecute him based on his conduct as Associate Director of

the Phoenix VA. See Ex. 1 at 2. Per our understanding of U.S. Department of Justice

procedures, the

U.S. Attorney's Office would have notified the VA of the declination before or at

the same time it so informed Mr. Robinson. Investigators from the VA Office of Inspector

General subsequently interviewed Mr. Robinson for approximately six hours on June 9 2015,

regarding access and whistleblower reprisal issues at the Phoenix VA. See Ex. 1 at 2. And an

AlB interviewed Mr. Robinson for another approximately six hours on October 21, 2015, also

regarding access and whistle blower reprisal issues at the Phoenix VA.

d.,

at

3.

In addition to those interviews, the VA also has obtained statements from Mr. Robinson

on a variety of other personnel matters while he has been on administrative leave.

Mr.

Robinson

provided those statements for

VA

investigations into Equal Employment Opportunity complaints

and for MSPB appeals by other employees. See Ex. 1.

Dr. Shulkin's statements regarding the alleged bases for delays in issuing disciplinary

actions in Phoenix based

on

the VA's inability to interview Mr. Robinson is thus inaccurate.

B. The VA has internally determined it cam10t sustain the currently pending May 30,

2014 proposed removal it issued to Mr. Robinson.

In his prepared opening remarks, Dr. Shulkin stated, we have been unable to make a

determination what disciplinary action may be warranted related to the patients' scheduling wait

list issues [in Phoenix]. See Ex. 9, at 24. That statement is inaccurate.

Unless the VA proposed Mr. Robinson's removal for reasons other than those stated in

the proposed removal,

on or

before May 30, 2014, the VA determined through its Deputy Chief

of Staff that it has sufficient information regarding access issues at the Phoenix VA to remove

Mr. Robinson. See Ex. 3. But despite the passage

of

time and even Mr. Robinson's request that

the VA act on the proposed removal so that he can clear his name before the MSPB, the VA has

declined

to

issue a decision on the pending adverse action against Mr. Robinson.

See

Ex. 5.

The VA' s inaction indicates that it has determined it cannot sustain a charge of

misconduct against Mr. Robinson for wait list issues at the Phoenix VA before an independent

adjudicator. Dr. Shulkin's statement that the VA has been unable to make a determination

about what disciplinary action to take related to patients' scheduling wait list issues at the

Phoenix VA is thus inaccurate as applied to Mr. Robinson.





United States Senate Committee on Veterans Affairs

December 28, 2015

III. CONCLUSION

To clarify the record and to hold the VA accountable for its conduct toward Mr

Robinson, who desires to return to duty serving Veterans, and for its statements to Congress, we

submit this written testimony and the enclosed exhibits for the public record

o

the Committee s

Field Hearing.

Sincerely,

Enclosures



TESTIMONY ON BEHALF OF LANCE ROBINSON

DECEMBER 28, 2015

EXHIBIT LIST

1.

Summary of Investigations and Known Outcomes

2. Administrative Leave Memorandum

3. Notice of Proposed Removal

4. Letter from Julia Perkins to Kevin Hanretta dated June 16, 2014

5. Letter from Julia Perkins to Kevin Hanretta dated May 12, 2015

6. MSPB Docket No. DE-0707-15-0091-J-1 (Dec. 22, 2014)

7.

MSPB Docket No. DE-1221-15-0139-W-2 (Oct. 4, 2015)

8. Letter from Julia Perkins to Paula Stokes dated October 19, 2015

9. Field Hearing Transcript

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