Talukdar v. U.S. Dept. of Veterans Affairs Medical & Regional Office Center, Fargo, ND, 2002-LCA-25 (ALJ Apr. 12, 2004)
U.S. Department of
Labor
Office of Administrative Law Judges 800 K Street, NW, Suite 400-N Washington, DC 20001-8002
Issue Date: 12 April 2004 Case No. 2002-LCA-25
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In the Matter of:
RUDRANATH TALUKDAR and
HARJINDER K. VIRDEE,
Prosecuting Parties
v.
U. S. DEPARTMENT OF VETERANS
AFFAIRS MEDICAL & REGIONAL
OFFICE CENTER, FARGO, ND,
Respondent
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Appearances:
Rudranath Talukdar
Pro Se Prosecuting Party
Harjinder Virdee
Pro Se Prosecuting Party
Alan Duppler, Esq.
Office of Regional Counsel
Department of Veterans Affairs
Fargo, North Dakota
Counsel for Respondent
Before:
Alice M. Craft
Administrative Law Judge
DECISION AND ORDER
This proceeding arises from a claim of whistleblower protection under the employee protection provision of Section 212(n) of the Immigration and Nationality Act of 1952, as amended ("INA" or "the Act"), 8 U.S.C. § 1182(n)(2)(C)(iv), and the implementing regulations found at 20 CFR Part 655 Subpart I (2003). In this case, the Prosecuting Parties, Dr. Rudranath Talukdar and Dr. Harjinder Virdee, allege that they were terminated from their positions as physicians for the Respondent, the Department of Veterans Affairs Medical & Regional Office Center of Fargo, North Dakota ("VAMC") because they cooperated with an investigation of VAMC by the Department of Labor.
STATEMENT OF THE CASE
Under the INA, an employer may hire non-immigrant alien workers from "specialty occupations" to work in the United States for prescribed periods of time. 8 U.S.C. § 1101(a)(15)(H)(i)(b); 20 CFR § 655.700. These workers are issued H-1B visas by the Department of State upon approval by the United States Citizenship and Immigration Services.1 20 CFR § 655.705(b). An employer seeking to hire an alien in a specialty occupation on an H-1B visa [Page 2]
Tr. III at 528. At this point, Dr. Virdee contemplated leaving VAMC and requested a recommendation letter from Dr. Johnson. Tr. I at 72. On December 12, 2001, Dr. Johnson wrote a letter praising Dr. Virdee's compensation and pension work and recommending her highly for a position in clinical psychiatry. CX 11. Dr. Virdee ultimately decided not to leave VAMC, however. In lieu of compensation and pension examinations, she was to be given work in primary care. Tr. I at 40-41.
[Page 10]
On January 3, 2002, Dr. Johnson assigned Dr. Virdee the task of fulfilling Dr. Talukdar's primary care duties while Dr. Talukdar was on vacation. Dr. Johnson did not discuss with Dr. Talukdar, leader of the Blue Primary Care Team, whether Dr. Virdee would be an appropriate substitute. She was assigned specifically to see his panel of patients, but he only found out about it when he returned. When other doctors were gone, the work was distributed among the remaining doctors in the service. Tr. II at 278. Dr. Talukdar knew of no other instances in which doctors were given work outside the scope of their practice. Tr. II at 302. According to Dr. Virdee, the assignment violated the by-laws of the facility. Tr. II at 300-301. See also Dr. Elabasar's testimony, Tr. II at 338-340, that such an assignment would put the patients at risk. That same day, Dr. Virdee composed a memorandum to Dr. Johnson expressing her uneasiness with the assignment because Dr. Talukdar's practice included primary care, while her scope of practice was limited to psychiatry. In the memorandum, she pointed out that she had not practiced as a primary care physician since 1981. She requested assurances that no action would be taken against her license to practice psychiatry in the event she did not perform competently in primary care. CX 8; Tr. I at 60-62. Dr. Virdee testified that Dr. Johnson was so angry with her for objecting to working in primary care that he did not talk to her for a month. Tr. I at 41, 62.
Asked by Dr. Virdee about his impression of working conditions over time as the two of them worked on the H-1B issue, Dr. Talukdar said as the months went by, their supervisors became more hostile. He remembered a specific incident where he, Mr. Redding and Dr. Virdee were in a meeting with Dr. Johnson and Mr. Kirk. They were trying to find a way to give Dr. Virdee clinical work and had proposed that she be a consultant psychiatrist to work with primary care teams. Dr. Johnson said he wanted Dr. Virdee out of his hair. Dr. Talukdar could not remember the exact date of that meeting, but believed it took place after his trip to India which occasioned the request for Dr. Virdee to look after his patients. Dr. Talukdar described Dr. Johnson as upset, annoyed and angry. Dr. Talukdar attributed Dr. Johnson's anger at being under pressure from upper level management to have Dr. Virdee removed from her work. Tr. II at 293-295. Dr. Johnson did not testify, but his hostility toward Dr. Virdee is reflected in the proficiency report he completed after she was terminated, described below.
In February 2002, Dr. Virdee was reassigned to work in the psychiatry department under Dr. Kirkman. Dr. Virdee thought the assignment was inappropriate as Dr. Kirkman had assaulted her, and never apologized. Tr. I at 42. Instead, Mr. Redding bargained for her to work full-time in the Union Office to guard Dr. Virdee from what she perceived to be a "dangerous situation." Tr. I at 43, 117.
On March 20, 2002, the District Director of the Wage and Hour Division issued his determination on the H-1B investigation, notifying Mr. Kenyon and Mr. Kirk that he found that VAMC had violated the INA by failing to pay wages as required, assessing back wages to ten H-1B non-immigrants in the amount of $203,797.54. CX 9. Dr. Virdee posted a notice regarding the violations and communicated the news to the H-1B physicians at VAMC. Tr. I at 29, 101. On April 26, 2002, a local newspaper published an article on the H-1B violations. Tr. I at 44.
In April 2002, Dr. Talukdar resigned as leader of the Blue Primary Care Team after he was finally told that his two step increase would not be forthcoming. Tr. II at 270. He continued to work in primary care, however. Tr. II at 270. Also, in April 2002, Mr. Redding and Mr. Lomsdal, another union representative, met with Dr. Robert Petzel, Network Director, regarding the H-1B issue. At the meeting, Mr. Redding identified Drs. Virdee and Talukdar as persons who had been working the issue. Dr. Petzel indicated that he would look into the issue. Tr. I at 104; Tr. II at 274; Tr. III at 592-593.
[Page 11]
Also in April 2002, a problem arose with respect to Dr. Virdee's role in the Pain Resource Team, which had only recently become operational. Tr. I at 43; Tr. III at 404. The Pain Resource Team ("Team") had been coordinated by Dr. Robert Cooper, Dr. Virdee's husband, who is board-certified in physical medicine and rehabilitation, independent medical examinations and pain medicine. Tr. III at 401-402. Meetings had been held at various points throughout the year prior to April 2002 to organize and plan for the establishment of the Team. Tr. III at 404. Dr. Virdee had been present at these meetings and provided input. Tr. III at 404. When the Team ultimately became operational in April 2002, Dr. Virdee saw her first patient; however, she did not have access to a computer which could be used for patient information. Tr. I at 43; Tr. III at 387, 404. When she asked for a computer, it was denied because she was authorized to spend 100% of her time on union business. Tr. III at 387. Although she dictated her notes about the first patient, they never came back to her on the system to sign off on them. Tr. III at 388. Because her computer access was blocked, she could not order appointments. Tr. I at 43-44. On April 5, 2002, Dr. Cooper received an unsolicited memorandum from Dr. Nichols stating that Dr. Virdee would no longer have a clinic scheduled because of her full-time duties as NFFE vice president. CX 43. Scheduling a clinic is part of the administrative protocol that must be addressed before physicians are able to see patients. Tr. I at 43-44. As a result, Dr. Cooper sent Dr. Nichols a follow-up memorandum attempting to clarify how Dr. Virdee was to continue to see patients as part of the Pain Resource Team if she did not have a clinic scheduled. A series of back-and-forth memoranda ensued between Drs. Cooper and Nichols. Ultimately, Dr. Cooper referred the matter to his supervisor because he felt unable to clarify the situation himself. CX 43; Tr. III at 403-408. Dr. Virdee never received the necessary computer access, and was never able to see any other patients in the pain clinic. Tr. II at 390; see CX 22. Mr. Kenyon took the position that all psychiatric referrals should go through Dr. Kirkman. Tr. III at 563-564; CX 19.
At some point during the third week in April 2002, Mr. Kenyon signed an extension of temporary appointment for Dr. Talukdar and his appointment was extended with a new "not to exceed" date of June 30, 2002, on his SF-50. Tr. I at 142. As was customary, according to Mr. Kirk, another temporary appointment acknowledgment form was not obtained from Dr. Talukdar. Tr. I at 145. Mr. Kirk and Mr. Kenyon testified that Dr. Talukdar's appointment was extended by two months because his special pay was set to expire on June 30, 2002. Had his appointment terminated on the original expiration date of April 28, 2002, Dr. Talukdar would not have worked long enough to receive the full amount of the special pay, and would have to pay part of it back. Therefore, VAMC alleged that it extended the appointment by two months as a courtesy to Dr. Talukdar. Tr. I at 142; Tr. III at 470. At the time of the extension, which had an effective date of April 28, 2002, Dr. Talukdar was earning $96,345 in basic pay, and $36,000 in special pay. AX 2.
On May 2, 2002, Dr. Kirkman sent an e-mail requesting that Dr. Virdee fulfill some of her duties during her forthcoming absence. Dr. Virdee responded to Dr. Kirkman's e-mail, stating that she would be happy to do so, but noting that she would be gone part of the same time that Dr. Kirkman would be gone. Subsequently, Dr. Virdee attempted to make arrangements with Dr. Nichols and Mr. Kenyon via e-mail that would allow her to comply with Dr. Kirkman's request. Specifically, Dr. Virdee attempted to schedule a clinic such that she would be able to see patients. Mr. Kenyon and Dr. Nichols, however, seemed to take every measure to frustrate Dr. Virdee's efforts.12 Finally, on May 10, 2002, Dr. Kirkman sent another e-mail stating that Dr. Virdee's assistance would no longer be required. CX 19.
On June 24, 2002, at Dr. Virdee's request, Tr. I at 66-68, 146, a clarification of the termination memorandum was issued by Tamara Holdcroft, on behalf of the Director/Chief Operating Officer, stating that the decision to terminate Dr. Virdee's temporary appointment "was based on budget matters related to the efficiency of operations of this facility." CX 7. Mr. Kirk testified that the "budget reasons and services required were similar in nature," i.e., "Her services were not required due to budgetary reasons." Tr. I at 147, 163-164.
[Page 13]
Mr. Kenyon testified that ultimately, he made the decision to terminate both Dr. Talukdar and Dr. Virdee, in consultation with other individuals, including Dr. Nichols and Dr. Johnson. Tr. III at 468, 477-478. He testified:
… At that time, we were facing a budget deficit of several million dollars, about – it varies between seventy-five and eighty percent of your budget, our salary dollars, so the biggest pot of money is salaries. Usually it's very difficult to just terminate employees, you can't have a RIF, they take a long time, you can't just summarily say, you know, "You're fired", but temporary employees are the – don't have the same amounts of protections and are subject to termination; and we reviewed the workload that we had going at the time, looked to see where there were opportunities to make those difficult decisions, and did.
Tr. III at 468. He said he picked Dr. Talukdar because his appointment was about to run out. He was extended a couple of months to reconcile the problem with his specialty pay. Tr. III at 468-469, 476-477. As to Dr. Virdee, he said:
Again, it was the same sort of situation. We examined the workload and where we thought we could cover, her appointment was also temporary and her workload at that point was very low so that we thought we could cover it and so we made that decision.
1 Formerly, the Immigration and Naturalization Service.
2 The complaint referred to both Prosecuting Parties as minority employees, and alleged whistleblower activity involving the Office of Special Counsel, the Equal Opportunity Employment Commission and the Department of Veterans Affairs Central Office, as well as the Department of Labor.
3 Review of LCA cases posted on the OALJ web-site at http://www.oalj.dol.gov discloses two decisions related to this case, of which I take official notice pursuant to 29 CFR § 18.45: Fargo VA Medical Center v. Employment and Training Administration, ALJ No. 2001-LCA-31 (HTML and PDF) (ALJ Jan. 23, 2002) (appeal of a wage determination, holding that the Employment and Training Administration correctly calculated the prevailing wage for a cardiologist when requested to do so by the Wage and Hour Division as part of its investigation); and Administrator, Wage and Hour Division, U.S. Department of Labor v. Fargo VA Medical Center, ALJ No. 2002-LCA-13 (HTML) (ALJ March 27, 2003) (appeal of the Administrator's March 20, 2002, determination that the Respondent had failed to pay the applicable prevailing wage to H-1B doctors, holding that the Respondent is an employer subject to the H-1B regulations, and ordering it to pay back wages to ten physicians in the amount, stipulated to by the parties, of $212,499.14.).
4 In his October 1, 2002, letter, counsel for VAMC also mentioned that both Prosecuting Parties are foreign citizens, but permanent residents of the United States rather than H-1B visa-holders. In a letter dated October 25, 2002, counsel for the Wage and Hour Division submitted a letter taking no position on the merits of the claim, but expressing the position that "[t]he anti-discrimination provisions of the [INA] protect all employees (including former employees and applicants), regardless of immigration or citizenship status." The VAMC did not argue that the Prosecuting Parties' immigration or citizenship status affected whether they are protected by the Act during these proceedings.
5 Mr. Redding has also been involved in a dispute with VAMC. By letter dated November 15, 2002, Mr. Redding notified me that he had been banned from accessing his office, mail and records at the Medical Center. During the telephone conference on January 14, 2003, Mr. Redding stated his key had been returned to him at the end of December, after which he had access to the union office. At the supplemental hearing, he testified that he had been charged with improper use of a computer and given a notice of proposed removal. He believed the action was taken to intimidate him for his participation in this and other H-1B proceedings. Tr. II at 365-366, 371. By letter dated July 30, 2003, he notified me that he had been returned to his employment, alleged that management officials were "less than honest" in his own case before the Merit Systems Protection Board, and offered correspondence from Mr. Kenyon which Mr. Redding contended contradicted his testimony regarding e-mail, suggesting that VAMC management officials should be sanctioned for perjury regarding the availability and storage of e-mail. As Mr. Redding's case is not before me, and the facts have not been developed in the record with an opportunity for VAMC to respond, I have not taken these allegations into account in my decision in this case.
6 38 U.S.C. § 7431(a) provides in part: "In order to recruit and retain highly qualified physicians and dentists in the Veterans Health Administration, the Secretary shall provide special pay under this subchapter. …"
7 Proficiency reports for both Prosecuting Parties contain five possible rating categories: clinical competence, educational competence, research and development, administrative competence, and personal qualities. There are also five possible ratings for each individual category, and an overall rating, of "outstanding," "high satisfactory," "satisfactory," "low satisfactory," or "unsatisfactory."
8 When Dr. Talukdar first arrived at VAMC, he was part of the H-1B program. Tr. II at 231-32. His status changed, however, on November 22, 2000, when he became a permanent resident. Tr. II at 227.
9 The second page of the ratings, containing the signature of the rating official, and space for comments and signature by the approving official, are missing from the copies of Dr. Talukdar's proficiency reports introduced into evidence. Dr. Talukdar testified to the effect that Dr. Johnson was the rating official. Tr. II at 234.
10 The Blue Primary Care Team consisted of five physicians, two nurse practitioners, two physician assistants, two nurses, and three licensed practical nurses. Tr. II at 236.
11 Representatives of the American Legion, the VFW, the North Dakota Department of Veterans' Affairs, the AMVETS, the Purple Heart and the Disabled American Veterans. Tr. III at 529.
12 Testimony of Mr. Kenyon and Mr. Kirk suggests that the decision to terminate Dr. Talukdar had been made by the third week in April. Neither said when the decision was made to terminate Dr. Virdee. I infer from Dr. Kenyon's testimony that it, too, was made in April. See Tr. III at 483-484. Thus although Dr. Virdee, and apparently, Dr. Kirkman, were unaware of it until May 10, it appears that the decision to terminate Dr. Virdee had already been made.
13 Eventually the amendments passed after a secret ballot. Tr. III at 430.
14 June 6, 2002, was the date Dr. Virdee's special pay expired. AX 1.
15 Dr. Talukdar attempted to establish that he had the highest work load of any of the primary care doctors given his patient load and administrative duties. See Tr. III at 478-480; CX 39. Dr. Talukdar based his argument on the number of patients seen per hour available. See column headed "Current per hour" at page 2 of CX 39. Mr. Kenyon would not agree, based on the total number of patients in the various doctors' panels. See column headed "Panel Enrollment" at page 1 of CX 39. Whether or not Dr. Talukdar had the heaviest load, the record is clear that he was carrying his weight, as he did have the highest per hour figure, and although the number of patients in his panel had dropped from the prior year, compare column headed "Panel Enrollment" at page 1 with column headed "Last FY level" at page 2 of CX 39, it was within the range of the other doctors in primary care.