The opinion of the court was delivered by: ROSEMARY COLLYER, District Judge
Harishankar L. Sanghi is a psychiatrist who was good at his job
with the Department of Veterans' Affairs ("VA"). Dr. Sanghi,
however, appears to have had an aversion to completing discharge
summaries, which inform subsequent treating physicians of the
course of treatment provided by the VA. When counseling, a
written reprimand, and a 10-day suspension did not result in
completed discharge summaries, Dr. Sanghi was removed from
patient care and ultimately discharged. He sues the VA, alleging
that the decision on his discharge was arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law;
obtained without procedures required by law, rule or regulation
having been followed; and unsupported by substantial evidence.
This short summary tells the tale: having reviewed the
administrative record and the arguments of the parties, the Court
finds that the VA is entitled to summary judgment. Plaintiff's
complaint will be dismissed. I. BACKGROUND
Dr. Sanghi began his employment with the VA on July 11, 1977.
Defendants' Statement of Material Facts Not in Dispute ("Facts")
¶ 1. Effective December 30, 1990, he was assigned to the Biloxi
VA Medical Center as a Physician, Chief Grade. Id. He was
discharged effective November 4, 1994. Id.
During March 1993, Dr. Sanghi was verbally counseled regarding
his delinquent discharge summaries by Dr. Lowell Husband, Acting
Chief, Psychiatry Service. Id. ¶ 2. By memorandum dated August
27, 1993, Dr. Sanghi was issued a written counseling memo by Dr.
George B. Tipton, Acting Chief, Psychiatry Service. Id. ¶ 3.
Dr. Tipton had earlier directed Dr. Sanghi to complete all of his
delinquent discharge summaries before leaving work on August 19,
1993, but Dr. Sanghi had not completed that assignment. Id. Dr.
Tipton directed Dr. Sanghi to dictate all delinquent discharge
summaries by no later than September 2, 1993, and to keep current
on all future discharge summaries. Id. Dr. Tipton warned of
"serious disciplinary action" if Dr. Sanghi failed to comply.
Another written counseling memorandum was issued to Dr. Sanghi
by Dr. Tipton on December 17, 1993. This counseling memorandum
indicated that Dr. Sanghi had been "verbally counseled on
numerous occasions regarding delinquent discharge summaries, most
recently in person on 12/9/03 and by telephone on 12/16/03."
Id. ¶ 4. On January 21, 1994, Dr. Tipton issued another
memorandum to Dr. Sanghi making the following points:
(1) that he was pleased with Dr. Sanghi's active
response to his memo of December 17, 1993 and his
completion of the required dictation prior to the
established deadline; (2) that he follows delinquent
dictation closely and notes that Dr. Sanghi is again
in violation of the hospital policy which requires
dictation of the discharge summary prior to
discharge; (3) that because of Dr. Sanghi's previously demonstrated
disregard for prompt dictation, he would be required
to be in strict compliance with local and national
guidelines; and (4) that he was required to complete
the narrative discharge dictation on each patient
prior to the discharge order being written.
Id. ¶ 5. Dr. Sanghi was required to complete all of his
delinquent dictation prior to 4:00 p.m. on January 26, 1994.
These actions did not cure the problem and a formal Reprimand
was issued to Dr. Sanghi on April 1, 1994, for failing to comply
with his supervisor's directions to complete 19 delinquent
discharge summaries by March 21, 1994. Id. ¶ 6. Thereafter, on
May 4, 1994, Dr. Sanghi was suspended for ten days for failing to
comply with directions to complete 26 delinquent discharge
summaries by April 19, 1994. Id. By letter dated June 28, 1994,
the VA proposed to discharge Dr. Sanghi due to his failure to
complete 27 delinquent discharge summaries by June 15, 1994, as
directed. Id. ¶ 7. Dr. Sanghi was detailed to non-clinical
responsibilities pending a decision on the proposed discharge.
Id. The VA notified Dr. Sanghi on July 18, 1994, that it had
decided to discharge him but would allow him to file an
application for disability retirement instead, as he had
suggested in his response to the initial discharge notice. Id.
Dr. Sanghi applied for disability retirement and it was
approved on September 19, 1994, by the Office of Personnel
Management ("OPM"). Id. ¶ 11. However, Dr. Sanghi subsequently
requested to withdraw his disability retirement application and
OPM approved his withdrawal by letter dated October 28, 1994. The
VA notified Dr. Sanghi on November 1, 1994, that his discharge
would be made effective November 4, 1994. The discharge was based
on three separate charges: 1. You failed to comply with VHA Standards and the
Medical Center's requirements regarding dictation of
discharge summaries which require that patient
discharge summaries be completed prior to discharge
and final summaries signed within ten (10) days of
2. You failed to follow your supervisor's directions
dated June 6, 1994, to complete twenty-seven (27)
delinquent summaries by June 15, 1994; and
3. Your failure to dictate discharge summaries
compromises quality patient care and violates
5 CFR 2635.101(b)(5) which states that employees must put
forth an honest effort in the performance of their
Administrative Record ("A.R.") at 813.
As a physician appointed under the authority of
38 U.S.C. § 7401(l), Dr. Sanghi had the right to appeal his discharge (a
"major adverse action") pursuant to 38 U.S.C. § 7461. Subsection
(c)(3) of section 7461 states that "[a] question of professional
conduct or competence is a question involving any of the
following: (A) Direct patient care; (B) Clinical competence."
38 U.S.C. § 7461(c)(3). Dr. Sanghi filed a timely appeal of the
discharge action and requested a hearing before a Disciplinary
Appeals Board ("DAB") on the charges. Facts ¶ 18. The DAB hearing
was conducted during the week of March 14, 1995, and the DAB
sustained the discharge, finding that each of the charges was
sustained in whole. The Under Secretary for Health approved the
DAB decision on July 31, 1995. Id. ¶ 19.
Dr. Sanghi filed his complaint in this action on July 20, 2001
and an amended complaint on August 20, 2001.*fn1 He is
proceeding pro se. Perhaps as a result, the case has had a
troubled procedural history. The complaint was dismissed on May
24, 2002, for failure to effect timely service under Rule 4(m) of the Federal Rules of Civil
Procedure. Dr. Sanghi's motion to reconsider the dismissal order
was granted on July 24, 2002, and the amended complaint was
reinstated. After two extensions, the VA filed its answer on
November 22, 2002. When Dr. Sanghi did not appear at the initial
scheduling conference on January 3, 2003, an Order to Show Cause
by January 21, 2003 why the case should not be dismissed was
issued. Dr. Sanghi timely filed his response and the order to
show cause was discharged. Another scheduling conference was held
telephonically on February 24, 2003, and the Court directed that
the administrative record be filed by March 26, 2003, and that
dispositive motions be filed in May 2003.
Dr. Sanghi repeatedly challenged the adequacy of the
administrative record and the Court suspended the briefing
schedule on May 12, 2003. The VA filed an amended record on June
16, 2003, but Dr. Sanghi remained dissatisfied with it. The
parties fully briefed his motion to compel and the Court directed
the VA to augment the administrative record with specified
documents. The briefing schedule was revised to order dispositive
motions by March 22, 2004. Unfortunately, that was not the end of
the matter and the briefing schedule was again suspended. The
Court held a hearing on May 10, 2004, to address the scope of the
administrative record. Thereafter, the scheduling order was
extended repeatedlyon Dr. Sanghi's motion*fn2 but, on
November 17, 2004, both parties filed motions for summary
judgment on the discharge claim. After a series of requests for
additional time by both sides, briefing was finally completed on
March 31, 2005, when the Court granted Dr. Sanghi's motion for
leave to file a surreply.
The case is now ripe for resolution. II. LEGAL STANDARD
Summary judgment is appropriate when the record shows that no
genuine issue exists as to any material fact and the moving party
is entitled to judgment as a matter of law. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Fed.R.Civ.P.
56(c). Summary judgment is not a "disfavored legal shortcut[;]"
rather, it is a reasoned and careful way to resolve cases fairly
and expeditiously. Celotex Corp. v. Catrett, 477 U.S. 317, 327
(1986). In determining whether a genuine issue of material fact
exists, the court must view all facts and reasonable inferences
in the light most favorable to the non-moving party. See
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio, 475 U.S. 574,
587 (1986); Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994).
Only factual disputes that are capable of ...