             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

                                      06-3196


                                  JIMMY L. DAVIS,

                                               Petitioner,

                                          v.

                         DEPARTMENT OF VETERANS AFFAIRS,

                                               Respondent.

                           ____________________________

                             DECIDED: November 9, 2006
                           ____________________________


Before LOURIE, SCHALL, and GAJARSA, Circuit Judges.

PER CURIAM.

                                     DECISION

      Jimmy L. Davis (“Davis”) appeals from the final decision of the Merit Systems

Protection Board (the “Board”) sustaining his removal from the Department of Veterans

Affairs (“the agency”) Medical Center (“VAMC”) as a Licensed Practical Nurse. Davis v.

Dep’t of Veterans Affairs, PH-0752-05-0554-I-1 (M.S.P.B. Dec. 12, 2005) (“Final

Decision”). We affirm.

                                   BACKGROUND

      Davis was employed as a Licensed Practical Nurse (“LPN”) in the

medical/surgical unit of the VAMC Lebanon Medical Center. One of his responsibilities
as an LPN was dispensing narcotic medications to patients. On July 13, 2005, Davis

was removed from his position after being charged with illegal drug use and for violating

agency procedures relating to the handling of controlled narcotics.        Those charges

arose from events that occurred on August 4, 2005.

      On that day, the nurse manager on duty, Susan Brown, became aware of

discrepancies involving medication for a number of patients. One patient, for example,

complained that he requested pain medication, but never received it.                Brown

investigated the matter further and discovered that Davis retrieved narcotic pain

medication from the storage area, which is also referred to as the Omnicell. According

to the Omnicell report, Davis took four oxycodone/acetaminophen pills and one

lorazepam tablet, intended for three different patients. Davis, however, failed to record

whether the narcotics were actually administered to the patients in the patients’ charts

or in the Bar Code Medication Administration (“BCMA”)—a system that tracks the

administration of medications for inpatient units. Final Decision, slip op. at 4-5. Another

discrepancy was revealed when Davis recorded on a patient’s chart that he

administered pain medication to the patient at 4:13 pm, when in fact that patient had

been transferred to another unit in the hospital at 3:00 pm—over an hour earlier.

      Brown reported the discrepancies in a voluntary witness statement and notified

the police.   The police detective assigned to the matter, Sergeant Lynn Rutt (“Sgt.

Rutt”), conducted an investigation during which Davis admitted that he had taken

narcotics, including Endocet, Tylenol with codeine, extra strength Vicodin and morphine,

either prior to his shift or during work. Id., slip op. at 5. Davis did not have a legal

prescription for any of these medications. Id. Sgt. Rutt urged agency officials to require




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Davis to take a Reasonable Suspicion Drug Test, pursuant to the policy set forth in

Lebanon Medical Center Memorandum N121-35. The agency officials ordered Davis to

submit to the test, and Davis complied. On August 6, 2005, Davis tested positive for

morphine.

      By letter dated June 10, 2005, the agency notified Davis that it was proposing his

removal from VAMC because of his illegal drug use and for violating agency BCMA

procedures.   On July 13, 2005, the agency issued a letter notifying Davis of the

agency’s decision to remove him from his position as an LPN. Davis appealed his

removal to the Board.

      On December 12, 2005, the Administrative Judge (“AJ”) denied Davis’s petition

in an initial decision. The AJ sustained the charges and found that the penalty was

reasonable. First, the AJ concluded that the agency proved the charge of illegal drug

use by preponderant evidence. Id. at 3-5. The AJ noted that Davis tested positive for

morphine, and that he did not have a legal prescription for it. In addition, the AJ relied

on Davis’s own admissions that he took controlled narcotics without having a legal

prescription. The AJ found that that conduct violated VAMC’s Drug Free Workplace

Policy as set forth in Memorandum N121-35. In light of the evidence, the illegal drug

use charge was sustained.

      The AJ then found that Davis had violated VAMC Lebanon Medical Center

Memorandum 22-06, which establishes the policy and procedures for BCMA, in at least

four instances.   The AJ noted the three instances described above wherein Davis

removed narcotic medications from the Omnicell, but failed to record the proper

information in the BCMA or the patients’ charts. The AJ credited the testimony of Sgt.




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Rutt who testified that the inconsistent records suggested that a theft had occurred

because the narcotics taken by Davis from the Omnicell were not properly recorded in

the BCMA system. Id. at 5. The AJ also credited testimony from Suzette Umlauf who

testified that Davis recorded administering medication to a patient at 4:13 pm, although

the patient had already been transferred to another unit. Additionally, the AJ found that

Davis admitted that he used the secure log-in information of another nurse, Pam

Rogeaux, in order to retrieve two Percocet pills. The AJ also referenced the patients’

medication histories, the Omnicell reports, and the BCMA records.         Based on this

evidence, the AJ sustained the second charge of violating BCMA procedures.

Moreover, the AJ held that Davis failed to prove that the agency committed harmful

procedural error and concluded that the penalty was reasonable.

      Davis did not seek review by the full Board. Thus, the AJ’s decision accordingly

became the final decision of the Board. See 5 C.F.R. § 1201.113. Davis appealed to

this court. 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, Davis primarily challenges the reasonable suspicion drug test. Davis

argues that no just cause existed for the agency to have ordered the test and that the




06-3196                                 -4-
agency failed to follow its own policy in administering it.     According to Davis, that

constituted harmful error.    Davis also challenges the Board’s factual findings with

respect to the narcotics discrepancies. Specifically, Davis contends that removal was

not proper because the Board mischaracterized “charting errors” as “narcotics

discrepancies.”   Notably, Davis does not challenge the underlying findings that he

tested positive for morphine without a legal prescription and that he violated agency

procedures by mishandling controlled narcotics.

       In response, the government argues that the agency acted within policy

guidelines when it ordered the reasonable suspicion drug test, and that Davis fails to

establish harmful error. Moreover, the government contends that substantial evidence

supports the Board’s findings.

       We agree with the government that substantial evidence supports the Board’s

determination that just cause existed for ordering the drug test. The VAMC’s policy

provides that an employee “shall be required to submit to reasonable suspicion drug

and/or alcohol testing when, in the judgment of the appropriate management officials

and based on information known at the time the decision to test is made, there is a

reasonable suspicion to believe that an employee . . . [h]as used . . . drugs or alcohol in

violation of The Drug Free Workplace Policy” or “is subjected to a police investigation,

arrest or conviction, related to drug or alcohol use, possession or distribution.”

Memorandum N121-35(3)(b)(1)(a),(c).

       Here, substantial evidence exists in the record establishing reasonable suspicion.

In particular, the AJ relied on the testimonies of Sgt. Rutt and Umlauf in concluding that

Davis appeared to have taken narcotics from the Omnicell without administering the




06-3196                                 -5-
drugs to patients.       In addition, Brown’s voluntary witness statement describing the

narcotics discrepancies also supports a finding of just cause. Moreover, at the time a

drug test was ordered, the police investigation headed by Sgt. Rutt had already begun,

thus serving as a second basis for ordering the drug test under the policy.

         With regard to Davis’s argument that the agency failed to follow its own

procedures for ordering the test, the AJ found that the agency properly followed policy

and procedure as set forth in Memorandum N121-35. Final Decision, slip op. at 10.

The policy provides that if an employee is suspected of illegal drug use, the supervisor

must “gather all information, facts, and circumstances to and supporting the suspicion.”

Memorandum N121-35(3)(b)(2). The information must then be presented, in writing, to

the appropriate agency officials. The written request must include certain information

concerning the drug related incident.

         Here, the AJ found that the proper procedure was followed by the agency. The

AJ considered evidence the agency adduced, including a series of e-mails among the

VA Chief of Police and the appropriate agency officials. Final Decision, slip op. at 5.

The e-mails discuss the circumstances surrounding the allegations of narcotics theft by

Davis.    J.A. at 36.    The e-mails reference Brown’s report, the discrepancies in the

Omnicell and BCMA records, and complaints from patients of not having received their

medications. The e-mails further mention the criminal investigation that was underway.

The AJ found that that evidence satisfied the procedural requirements set forth in

Memorandum N121-35. The AJ also concluded that Davis failed to prove a violation of

this policy by preponderant evidence. Final Decision, slip op. at 10. We discern no

error in that finding.




06-3196                                   -6-
      Lastly, we reject Davis’s argument that there was no evidence to support the

Board’s conclusion that “narcotics discrepancies,” as opposed to “charting errors,”

occurred.    Davis fails to identify any cognizable difference between the two

characterizations. As discussed above, substantial evidence exists in the record to

support the conclusion that Davis was responsible for the discrepancies in the recording

and inventory of narcotics that led to a police investigation, and ultimately to his

removal. Thus, that argument likewise fails.

                                    CONCLUSION

      We have considered Davis’s remaining arguments and find them unpersuasive.

We therefore affirm the Board’s decision.




06-3196                                -7-
