Fulton v. Dept. Of the Army , 180 F. App'x 907 ( 2006 )

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
06-3001
KEITH A. FULTON,
Petitioner,
v.
DEPARTMENT OF THE ARMY,
Respondent.
____________________________
DECIDED: April 6, 2006
____________________________
Before MAYER, LOURIE, and BRYSON, Circuit Judges.
PER CURIAM.
DECISION
Keith Fulton (“Fulton”) appeals from the final decision of the Merit Systems
Protection Board (the “Board”) sustaining his dismissal from the Department of the Army
(the “Agency”). Fulton v. Dep’t of the Army, No. DC-0752-04-0590-I-1 (M.S.P.B. Aug. 3,
2005). We affirm.
BACKGROUND
Fulton was formerly a Paramedic at the Department of Emergency Medicine
Ambulance Service, Womack Army Medical Center, Fort Bragg, North Carolina. Fulton
v. Dep’t of the Army, No. DC-0752-04-0590-I-1, slip. op. at 1 (M.S.P.B. Oct. 6, 2004)
(“Initial Decision”). Effective May 28, 2004, the Agency removed Fulton from his
position based on his alleged failure to follow written/established procedures when
safety to the patient was endangered and his alleged falsification of a Fort Bragg EMS
Prehospital Care Report (“Prehospital Report”). Id., slip op. at 2. Both charges of
misconduct arose from Fulton’s behavior on April 8, 2004, in responding to an
emergency call concerning an 18-year-old woman (the “patient”) having diabetic
symptoms. Id. Fulton, who was accompanied during the emergency call by Samuel
Johnston (“Johnston”), an emergency medical technician (“EMT”), allegedly used the
same intravenous (“I.V.”) catheter twice while attempting to start an I.V. line (“double
stick”) on the patient, and gave the patient an albuterol nebulizer treatment when it was
not needed and was counter-indicated by the patient’s symptoms. Id., slip op. at 2-3.
Albuterol is an anti-asthmatic drug; however, it increases anxiety and is counter-
indicated when patients are suffering from anxiety, as this patient was. Id., slip op. at 3-
4. After Fulton and Johnston transported the patient to an off-base hospital, the patient
told Johnston that Fulton reported on a Prehospital Report that he had taken her vital
signs even though she did not believe that he had done so. Id., slip op. at 8.
Fulton’s supervisor, Jean-Luis Gomes (“Gomes”), notified Fulton on April 19,
2004, that he was proposing his removal for failure to follow written/established
procedures when safety to the patient is endangered and falsification of the Prehospital
Report. Id., slip op. at 2. On May 21, 2004, Dr. Robert Desverreaux (“Desverreaux”),
the deciding official, determined that both charges were supported by the evidence and
warranted Fulton’s removal effective May 28, 2004. Id. Fulton timely appealed to the
Board.
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The Administrative Judge (“AJ”) sustained all of the Agency’s charges and
concluded that the penalty of removal was reasonable. Id., slip op. at 1. First, the AJ
held that the Agency proved by preponderant evidence its charge of failure to follow
written/established procedures when safety to the patient is endangered. Id., slip op. at
7. As an initial matter, the AJ stated that there was no dispute that Fulton administered
albuterol as charged because Fulton admitted that he gave the patient albuterol for
“anxiety,” and that “he did not take her vital signs before administering the albuterol.”
Id., slip op. at 5-6. The AJ also held that the Agency proved Fulton’s double-sticking of
the patient based on the eyewitness testimony of Johnston. Id., slip op. at 6.
The AJ then found that Fulton’s actions endangered the patient, crediting the
testimony of Richard Clark (“Clark”), an EMT and training officer for the Agency,
Desverreaux, a medical doctor and head of the Agency’s emergency medicine
department, and Johnston that double-sticking increases the risk of infection and injury
to the patient, and that albuterol should not be used to treat a patient already suffering
from anxiety. Id., slip op. at 5-6. The AJ also determined that the Agency had
written/established procedures dealing with the treatment of anxiety and dealing with
the appropriate I.V. administration, and that Fulton was on notice of those procedures.
Id. The AJ therefore sustained the Agency’s charge of failure to follow
written/established procedures when safety to the patient is endangered.
Second, the AJ held that the Agency proved by preponderant evidence its charge
of falsification of the Prehospital Report. Id., slip op. at 9. The AJ determined that
Fulton did not take any vital signs from the patient and that Fulton admitted to falsifying
the Prehospital Report based on the testimony of Johnston and Gomes. Id., slip op. at
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8. The AJ also found that Fulton intended to falsify the form. Id. Third, the AJ held that
Fulton did not prove by preponderant evidence his affirmative defense of retaliation for
engaging in union activities and for accusing his supervisor of not properly filling out
workers compensation forms for him. Id., slip op. at 10. Finally, the AJ upheld the
penalty of removal because it was reasonable in light of the sustained charges and
promoted the efficiency of the service. Id., slip op. at 12. The AJ concluded that the
Agency showed “that it gave adequate consideration to the Douglas factors and
thereafter properly exercised its managerial discretion in selecting the penalty of
removal.” Id.
Fulton sought review by the full Board, the Board denied his petition, and the
AJ’s decision became the final decision of the Board. See 5 C.F.R. § 1201.113(b).
Fulton timely appealed to this court, and we have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(9).
DISCUSSION
The scope of our review in an appeal from a decision of the Board is limited. We
must affirm the Board’s decision unless it was “(1) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law; (2) obtained without procedures
required by law, rule, or regulation having been followed; or (3) unsupported by
substantial evidence.” 5 U.S.C. § 7703(c) (2000); see Briggs v. Merit Sys. Prot. Bd.,
331 F.3d 1307, 1311 (Fed. Cir. 2003).
On appeal, Fulton makes three arguments. First, he contends that the Board
applied the wrong law because his case should have been subject to “peer review”
under Army Regulation (“AR”) 40-68 rather than consideration by the Board. He also
06-3001 -4-
cites other allegedly controlling regulations and publications that should have changed
the result of his hearing. Second, Fulton contends that the Board failed to take into
account relevant facts and failed to consider important grounds for relief. According to
Fulton, the Board failed to review materials submitted by his representative. He also
asserts that he sought and received permission from a doctor at Fort Bragg to
administer the albuterol and that the Fort Bragg Medical Center manuals do not
proscribe his supposed misconduct, i.e., double-sticking and the administration of
albuterol for anxiety. In addition, Fulton challenges the credibility and character of the
witnesses who testified against him, alleging that Johnston committed “medical
malpractice,” Clark purposely misled the Board as to Agency protocol, Gomes lied to
the Board and committed other illegal acts not related to this action, and Desverreaux
was a “YES Man” whose application of the Douglas factors was “lame.” Fulton further
asserts that the Board should have allowed discovery and permitted testimony by a
Sergeant Keegan. Finally, Fulton argues that the government attorney violated Agency
rules and lied to the Board, and that the Board showed bias against him in ruling in
favor of the Agency.
The government first responds that the peer review process is irrelevant to
Fulton’s appeal because AR 40-68 refers to actions to limit a health care provider’s
clinical privileges or licenses and that the Army Regulations cited by Fulton are
irrelevant. Second, the government argues that the silence of the Fort Bragg Medical
Center manuals as to double-sticking and albuterol administration does not exculpate
him because other rules proscribe his conduct. The government also asserts that
Fulton’s allegation that he sought and received permission from a doctor at Fort Bragg
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to administer the albuterol is unsubstantiated in the record. In addition, the government
contends that Fulton’s allegations as to witness testimony are irrelevant, fail to
overcome the AJ’s credibility determinations, are not supported by the record, and are
not material to the Board’s decision to sustain his removal. Further, the government
asserts that the AJ was within her discretion in denying Fulton’s request for discovery as
untimely and in not permitting Sergeant Keegan to testify. Finally, the government
argues that Fulton’s allegations of bias of the AJ and alleged misconduct by the
government attorney are without merit and unsupported by the evidence.
We agree with the government that the Board did not apply the wrong law. AR
40-68 prescribes policies, procedures, and responsibilities for the administration of the
“Clinical Quality Management Program.” Section 6-1 of AR 40-68 describes a “peer
review” process that applies in actions to limit a health care provider’s privileges or
licenses. Here, the Army removed Fulton for misconduct, rather than limiting his
privileges or taking any licensing actions against him. Thus, his case was properly
considered by the Board. Moreover, none of the other regulations or publications cited
by Fulton are relevant to this case.
We also agree with the government that the Board did not fail to take into
account relevant facts or fail to consider important grounds for relief. Even assuming
arguendo that the Fort Bragg Medical Center manuals were silent on Fulton’s
misconduct, the Board properly relied on testimony and other documents proscribing
double-sticking and administration of albuterol to patients suffering anxiety. Moreover,
Fulton’s allegation that he sought and received permission from a doctor at Fort Bragg
to administer albuterol is not substantiated in the record.
06-3001 -6-
Similarly, there is no basis for Fulton’s claim that the Board improperly
considered the testimony of Johnston, Clark, Gomes, and Desverraux. Fulton’s
allegations that Johnston committed “medical malpractice” do not impair Johnston’s
ability to testify truthfully as to whether Fulton administered albuterol, was responsible
for double-sticking the patient, and fabricated vital signs in the Prehospital Report.
Fulton’s attacks on Clark also do not overcome the AJ’s credibility determination that
Fulton’s use of albuterol and double-sticking the patient were contrary to training. In
addition, Fulton’s allegations that Gomes was biased are not supported by the record
and, given the limited testimony of Gomes, were not relevant to the Board’s decision to
sustain Fulton’s removal. Finally, Fulton’s challenges to Desverraux’s testimony are
overcome by the AJ’s findings that Desverraux’s testimony on his evaluation of the
Douglas factors was “credible and thorough.”
Further, we reject Fulton’s argument that the Board failed to comply with its rules.
Fulton has presented no evidence that the testimony of Sergeant Keegan would have
“made light” of Clark’s testimony regarding the I.V. policy. We thus conclude that the AJ
was within her discretion to exclude testimony from Sergeant Keegan. We also discern
no abuse of discretion in the AJ’s decision to deny Fulton’s motion to compel discovery
as untimely.
Finally, we agree with the government that Fulton’s allegations of bias of the AJ
and alleged misconduct by the government attorney are unsupported by the evidence.
We have considered Fulton’s remaining arguments and find them unpersuasive. We
therefore affirm the Board’s decision.
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