FEDERAL MEDIATION AND CONCILIATION SERVICE

In the Matter of the Arbitration between AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL NO. 2017, Union, FMCS No. 11-53082 and US ARMY SIGNAL CENTER & FORT GORDON, Employer. ____________________________________________/

OPINION OF THE ARBITRATOR August 5, 2011 After a Hearing Held May 18, 2011 In Winship Hall, Fort Gordon, Georgia

For the Union: Daniel R. Bloebaum Shop Steward AFGE Local 2017 PO Box 7680 Fort Gordon, GA 30905

For the Employer: Jacqueline L. Edgerton Department of the Army Office of the Staff Judge Advocate 419 B Street, Building 29718 Fort Gordon, GA 30905

I. Introduction Grievant is a civilian MD employed in obstetrics and gynecology at the Dwight D. Eisenhower Army Medical Center located in Fort Gordon, Georgia, the main component of which is the US Army Signal Center. He is a member of Local No. 2017 of the American Federation of Government Employees. On Grievants performance evaluation for the period 7/1/086/30/09, he received the highest rating. Among the comments in the evaluation are these: [Grievant] consistently sees the largest number of clinic patients on a monthly basis. [Grievant] continues to provide excellent access to care by seeing the majority of walk-in patients. [Grievant] routinely involves surgical residents in his operative cases helping to augment and improve their surgical training. [Grievant] has made numerous suggestions to improve both in-patient and out-patient electronic medical records. [Grievant] provides excellent education to rotating medical students, Family Practice residents, and Surgical Residents in the clinic. [Grievant] performed beyond his assigned duties. [Grievant] has demonstrated an excellent work ethic during this rating period. [Grievant] is the most productive provider in the OB/GYN clinic. Notwithstanding this encomium, Grievants fortunes seemed to wane when Lieutenant Colonel T (LtC T), an Army MD, became chief of OB/GYN. She refers to Grievant as Mr. instead of Dr. She has marginalized his position and assigned him to urgent care. She ordered him not to do follow-up care on patients he treated. She rarely communicates with him about patient care even when he turns patients over to her. She refuses to
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operate with him because she considers his skills to be outmoded.1 She even deprived him of his pager. LtC T reported Grievant for possible substandard care in a case in which she herself was involved but failed to reveal that fact in her report; Grievant was exonerated. She asked him to sign a certification for a staff member when he did not have personal knowledge of the patient examinations involved. She told him to take a whole day off for a doctors appointment, when the collective bargaining agreement clearly specifies that [t]he amount of sick leave granted shall be the amount necessary for the appointment and time to travel to and from the appointment. JX 13, Article 21, 2. Most recently, she nominated all staff members except Grievant for an award. In a memorandum dated July 16, 2010 (JX 1), LtC T wrote to Grievant in pertinent part: 1. I am issuing you this letter of reprimand in accordance with Army Regulation 690-700, Chapter 751, Discipline, for discourteous behavior that has an adverse effect on morale and production within the unit, and specifically, for rude and disrespectful behavior directed at colleagues in your section. This is the minimum disciplinary action which I feel is needed to correct your misconduct and to promote the efficiency of the service. This action is based on the following reasons and specifications: a. On 18 February 2010, at approximately 1410 hours, you entered the break room located in the OB/GYN clinic, and slammed what appeared to be a urine specimen on the break room table. Ms. [BP], RN, was seated at the table
Training and Employee Development are covered quite thoroughly in Article 26 of the collective bargaining agreement. The arbitrator takes note of the proximity of Fort Gordon to the University of Georgias Medical School in Augusta, Georgia.
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and you stated to her, You got a job to do. Ms. [P] responded, Please do not do that, I am going to walk out. She left the break room and noticed that there were 3-4 patients seated adjacent from the break room who may have overheard the exchange. Ms. [P] reported this incident to [LtC T], Chief, OB/GYN.2 [LtC T] went to the break room and found the urine sample left on the table next to a birthday cake. A written statement was prepared and submitted by Ms. [BP], RN, documenting this incident (JX 2).3 b. On 19 February 2010, at approximately 1045 hours, SPC [W] was talking with a patients family member. SPC [W] provided a statement that indicated that you stepped out of your office with a chart and told her, Go find this patient, after which you contemptuously threw the patients record on the floor rather than hand the medical record to her. Written statements were prepared and submitted by Ms. [BP], RN and SPC [W], documenting this incident (JX 4). c. On 12 March 2010, SPC [LL] was assigned to work with you and Ms. [J]. She indicated she had not assisted you in a while and asked Ms. [J] how you preferred the placement of your charts. Ms. [J] admits that while triaging the patients you were scheduled to see, she inadvertently mixed up the order. SPC [L] indicated in her statement that when you noticed the mistake, you mumbled something under your breath, then threw the patients file on the floor while yelling for Ms. [J]. Following this incident, SPC [L] reported to Ms. [J] what had transpired. While she continued to triage and offer her assistance throughout the morning, she indicated that you continued to make rude verbal comments to her. A written statement was prepared and submitted by SPC [L] documenting this incident (JX 6). 2.4 In determining a proper penalty for this offense, I have compared it to similar offenses as defined in AR 690-700, Chapter 751, Table 1-1, Table of Penalties for Various Offenses, which warrants a penalty of a written reprimand to a one day suspension for a first offense of discourtesy. In deciding to issue you this reprimand, I have considered the following factors: (1) that you have no known previous disciplinary record and (2) the fact you have nearly eight years
At the time of the incident, LtC T was a major, but the arbitrator uses a single reference to her for the sake of simplicity. 3 Exhibit numbers have been inserted by the arbitrator. Ms. [BP] also prepared a Memorandum for Record, dated 2/18/10 (JX 5). LtC T herself wrote a Memorandum for Record, dated 3/3/10 (JX 3), in which she recorded Ms. [BP] as saying that [Grievant] came into the break room with urine sample in a bio bag. He placed it in front of her and told her to take care of it. (Emphasis supplied). 4 The paragraphs in JX 1 are misnumbered.
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of civilian service. I have to emphasize that your conduct has not only undermined the confidence I must have in you, but it is also counter-productive to the team effort necessary to carry out our daily responsibilities of providing quality care to our beneficiary population. You are a physician and function in a health care provider role that involves daily contact with the public. You continue to have difficulty getting along with nurses, other physicians, and clerks in the OB/GYN Service. In each instance described above, you could have handled the situation in a more professional and courteous manner. Moreover, you are not to engage in arguments within the work area, especially where patients may overhear or witness. Any problems or conflicts you have that cannot be handled in a non-confrontational manner should be immediately brought to my attention for resolution. There is no place in the work environment for this type of behavior. This reprimand is intended to impress upon you the seriousness of your actions and is considered to be reasonable and adequate. It is also considered to be a corrective measure and necessary to promote the efficiency of the service. You should be aware that any future conduct offenses, particularly those that occur while this reprimand is active, may result in more severe disciplinary action being taken against you up to removal from the Federal Service. A grievance was filed and denied by the Agency; the dispute ultimately advanced to arbitration. A hearing was held at Fort Gordon on May 18, 2011. Briefs were submitted within 60 days as agreed. II. Analysis of the Three Incidents II.A. The Urine Sample Although in her Memorandum for Record (JX 3), LtC T notes that the urine sample was in a bio bag, in her letter of reprimand (JX 1), she omits this important fact, making it appear that Grievant plopped a cup of pee on the break room table. Moreover, she does not allege that Grievant slammed the bio bag on the table, merely that he placed it in front of her [Ms. P] and told her to take

care of it. At the arbitration hearing, Ms. P did not use the word slammed either. LtC T further failed to note that Grievant found the sample unattended, in a public place. There is a dispute as to whether the urine sample was labeled with the patients name, with the Agency claiming that it was labeled and Grievant claiming that it was not. In any event, the proper concern should have been over getting the sample to the lab promptly, not over Grievant bringing it into the break room. The Agency provided no proof of any rule against bringing a sterile bio bag into the break room for the purpose of seeing that it was promptly taken to the lab. Indeed, a charge of discourtesy for such an act is so vague and overbroad as to fail to put Grievant on notice that he was doing anything improper. Ms. Ps reaction to the incident was a result of her own sensibilities, which, for a nurse who must work with bodily fluids, seem rather unusual.5 She admitted that she never discussed the incident with Grievant. Most telling is Ms. Ps Incident Report (JX 2), on which she marked in Block 8, which asks Effect of this incident on the individuals involved, that No [was] harm sustained. According to the instructions for the Incident Report form, harm may be of a psychological nature. It is difficult to
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But see You Smell Flowers, I Smell Stale Urine, Scientific American, January 20, 2011, http://www.scientificamerican.com/article.cfm?id=you-smell-flowers-i-smell.

understand how Grievant could be disciplined over an incident when the complainant herself admits that no harm of any kind resulted. No harm, no foul is the principle of law applicable here. II.B. The Patients Record Again the Incident Report (JX 4) states No harm sustained. Army SPC Ws description of the incident before the arbitrator differed from her description in her Incident Report. In the latter, she stated that she was 5 feet away from Grievant but at the hearing pointed to a much longer distance. SPC W admitted that she, like Ms. BP, never discussed the incident with Grievant. It is more than curious that Ms. BP was involved in the preparation of JX 4, inasmuch as she did not witness the incident. She even signed the Report. No clear explanation was provided for her involvement, which gives the impression of her wanting to make trouble for Grievant. Again, no harm, no foul. II.C. Mix-up of Patient Charts Patients are triaged and their charts are supposed to be put in the order in which they are to be seen by the doctor. Army SPC LL admitted that she got Grievants patients charts mixed up twice on the day in question. She testified that patients get angry if they are taken out of order. A patient actually may suffer if care is delayed because of a mix-up. SPC LL did not hear what Grievant mumbled. In fact, she did not

believe that Grievant was insulting her. She attributed his behavior to frustrationhe was just having a bad day. Before the arbitrator, she never specified a single rude verbal comment Grievant made, as charged in the letter of reprimand. Like Grievants other accusers, she never discussed the incident with him. Her testimony before the arbitrator was quite different from her written statement (JX 6), in which she said that Grievant threw a patients chart on the ground. At the hearing, Grievant testified that there was no convenient place to put the misordered charts, so he laid them on the floor. He produced a photograph of the scene (UX 1) showing that there was no handy desk, table, or other place to put the charts. SPC LL testified that the charts separated only a couple of inches when they reached the floor, a fact which seems inconsistent with her allegation that they were thrown down. III. Unproven Charges In LtC Ts letter, she states: You continue to have difficulty getting along with nurses, other physicians, and clerks in the OB/GYN Service. Moreover, you are not to engage in arguments within the work area, especially where patients may overhear or witness. The Agency offered no proof of Grievants difficulty getting along with other physicians or clerks or engaging in arguments, unless perhaps LtC T included herself among other physicians, in which case there is a serious question of
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just who cant get along with whom. IV. Incomplete Investigation Army Regulation 690-700, Chapter 751, Subchapter 3, 3-2b requires that a supervisor who is contemplating issuing a formal written reprimand obtain all available information concerning the alleged misconduct. This LtC T did not do. She did not interview all available witnesses, most notably Grievant. The Agency points out that, under the Regulation cited, the decision to interview the targeted employee is discretionary. While that may be true, like any legal document, the Regulations must be read as a whole, and where as here getting to the bottom of the matter reasonably requires interviewing the employee, a failure to do so may be an abuse of discretion. Colonel E, who denied the grievance at the 3rd step (JX 9), testified that he would have expected LtC T to interview Grievant. LtC T avoided communication with Grievant at every turn. Not only did she fail to interview him before issuing the letter of reprimand, she refused to discuss the letter when she delivered it to him. At the hearing, she admitted that she didnt want to. She further avoided meeting with him face-to-face about his performance review. In a Memorandum for Record dated 19 October 2010 and included in JX 14, Grievant wrote:

It has been reported to me this morning by one or more persons that patients have complained to them regarding their (the patients) interactions with [LtC T] because the patients were uncomfortable that [LtC T] was fishing of complaints against me. It seems clear that all of the documentation used to justify the reprimand of Grievant (JX 1-6) was solicited directly or indirectly by LtC T. The situation here is reminiscent of that in Police Officers Assn of Michigan and County of Leelanau, Michigan and Its Sheriff, 07-2 ARB 3926, 108 LRP 62358 (Arb 2007), where the evidence appeared to have been collected to support a predetermined decision. V. Unreasonable Delay Since the Agency is part of the federal government, Grievant is entitled to due process under the 5th Amendment. Elkouri & Elkouri, How Arbitration Works (6th ed 2003) @ 1254. Grievant is a meticulous documenter of events, as illustrated by his hundreds of pages of letters, memos, emails and notes comprising JX 14. Had Grievant been timely notified of the complaints against him, he contemporaneously could have interviewed witnesses and recorded their and his impressions. Instead, the Agency waited almost 5 months after the first two incidents and over 4 months after the third to notify him that he had done anything wrong. He was significantly prejudiced by the delay. The Agency seeks to explain the delay by claiming that LtC T was busy and human resources had to be involved. However, Army Regulation 690-700,
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Chapter 751, Subchapter 1, 1-1 plainly provides that [d]iscipline is a part of the daily responsibility of supervisors. Furthermore, the collective bargaining agreement notes that [m]ost misunderstandings or disputes can be settled promptly and satisfactorily on an informal basis at the immediate supervisors level. Article 34, 4. Had LtC T, Grievants immediate supervisor, promptly counseled him about the first incident, the other two may not have occurred. Instead, he was told nothing about the events at the time and did not even view them as having potential disciplinary consequences. The letter of reprimand recites that Grievants discipline was necessary to promote the efficiency of the service. It is unclear how a delay of several months promotes efficiency. To the contrary, it would seem grossly inefficient to delay action and allow even more incidents to occur. Delay in taking action tends to undermine the putative seriousness of the alleged misconduct. Dept of Veterans Affairs, 115 LA 198, 206; 166 LRR 168; 02-1 ARB 3067 @ 3406 (Arb 2000) (taking over two weeks to file sexual harassment complaint undermines seriousness of charge). The Agencys explanations and excuses over the delay are not convincing. VI. Discrimination Issues At the arbitration hearing, Grievant complained of age discrimination. The Agency objected to his testimony on the ground that the collective

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bargaining agreement states that the grievance procedure does not apply to EEO complaints. Article 34, 2.b(9). While that may be true, Article 2, 1 provides that external laws apply, and an entire Article 3 is devoted to equal employment opportunity. All of these contractual provisions must be read together and harmonized. It would be anomalous if an employee were fired or otherwise disciplined for a blatantly discriminatory reason but an arbitrator was powerless to remedy the wrong. EEO procedures are very different from arbitration and more timeconsuming. At the very least, an arbitrator can hear evidence of discrimination and, in a proper case, use it to decide that the discipline was not for just cause. See Article 33, 2. Grievant repeatedly complained of harassment without much elaboration. The collective bargaining agreement does address harassment by a supervisor: An effective supervisor will avoid employee harassment. Article 10, 1. In at least one memo to LtC T in JX 14, he was explicit about sexual harassment: I remind you and Ms. [P] that I requested formal counseling for [Ms. R] after she continued to harass me regarding my ability to eat lunch after having my hands in a crude slang for the female vagina. I considered the above to be sexual harassment and stated my belief regarding my complaint. It is my belief and understanding that there are specific remedies regarding a complaint for sexual harassment. Since I have never heard anything about the resolution of my complaint I question whether Ms. [P] complied with the AR regarding sexual harassment. [Dated 19
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July 2010arbitrator] In an email in JX 14, which was copied to LtC T, Grievant complained of racial issues: There has been repeated issues regarding comments made to me by staff members, in the instant case they came from Ms. [CF] and Ms. [R] regarding my hair and their perception of my response to same. Then I was asked is that a black thing Then they said they were just joking with me. This behavior is considered by me to be rude and shows a lack of respect not just for me but issues of racial harmony in the clinic. I do not believe joking about racial issues has any place in this clinic. [Sent Monday, December 07, 2009 1:05 PMarbitrator] Regardless of these potentially serious complaints, there is no need to base the decision in this case on Grievants claims of age or racial discrimination or sexual harassment, as there are simpler and more fundamental bases for decision. VII. Conclusion & Award The Agency failed to carry its burden of proof that there was just cause to discipline Grievant. A charge that one of an employers best employees has engaged in misconduct may be viewed skeptically. JEA Supervisors Assn and Jacksonville Electric Authority, 128 LA 1046, 11-1 ARB 5181, 111 LRP 10516 (Arb 2011). The grievance is SUSTAINED. The letter of reprimand was unwarranted and must be withdrawn per Army Regulation 690-700, Chapter 751, Subchapter 3, 3-3a(3).
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VIII. The Case as a Fumarole This odoriferous case evinces an underlying buildup of pressure within obstetrics and gynecology at Dwight D. Eisenhower Army Medical Center, Fort Gordon, Georgia, andlike a volcanic fumarolemay presage an impending explosion. See generally JX 14. It is beyond the arbitrators authority or expertise to do more than sound a tocsin.

Dated August 5, 2011

________________________________ E. Frank Cornelius, PhD, JD, Arbitrator

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