SOUTHWORTH PC Shaun Southworth, Esq. Southworth PC 1100 Peachtree Street NE,Suite 200 Atlanta, GA 30309 SENT VIA EMAIL TO Joscph.Powers@v'a.gov October 10, 2017 Joseph Powers Supervisor, Employee/Labor Relations Human Resources Veterans Health Care System 2400 Hospital Rd Tuskegee, AL 36083 Dear Mr. Powers et. al: As we mentioned before, the regulations require that Dr. Kassner be allowed 10-14 days to review the evidence and correspondence that was used in consideration of the decision to convene and Professional Standards Board or relate to any allegation against him. CAVHCS continues to fail to comply with its legal responsibilities in a manner appropriate to what is at stake. In your email from 10/5/2017 you report that the search for the missing items from the evidence hie has been exhausted. In other words, we assume it has been lost. Please confirm. If it has been lost, then we will seek an adverse inference that it was lost because it contained information supportive of Dr. Kassner, which provides strong evidence of reprisal, discrimination, and retaliation. 29 C.F.R. Section 1602.14 entitled "Preservation of records made or kept" provides, inter alia, as follows:"Any personnel or employment record made or kept by an employer ... shall be preserved by the employer for a period of one year from the date of the making of the record or the personnel action involved, whichever occurs later." Numerous other legal authorities required these records to be kept. It appears these have disappeared in bad faith, which shows liability. It is worth noting that the CAVHCS Facility Director, Dr. Linda Boyle, was also the convening authority for the AIB investigation. In addition, Dr. Boyle received legal notice to preserve all materials in 1100 Peachtree Street Northeast. Suite 200, Atlanta, GA 30309 www.southworthpc.com (404) 585-8095 Employment & Overtime Attorneys relation to Dr. Kassner's employment. Therefore, Dr. Boyle had a legal responsibility at three levels to ensure that all materials relating to the AIB investigation were maintained and secured. But even if there is no bad faith, the failure to follow a regulation requiring the preservation of evidence may be deemed by the ?nder of fact to be probative of the true motivation behind the employment decision. See Johnson v. Lehman, 679 F.2d 918, 922, 220 US. App. DC. 100 (DC. Cir. 1982) failure on the part of the . . . employer to follow its own regulations and procedures, alone, may not be suf?cient to support a ?nding of . . . McIntyre v. Peters, 460 F. Supp. 2d 125, 138 (D.D.C. 2006) failure to follow its own policy requiring the retention of employment decision documents, when viewed in light of plaintiffs other evidence of pretext, raises a credibility question that is properly left to the jury.") (Citations omitted). One sanction the Agency faces for destroying the evidence and/or refusing to provide it is default judgment. Here, the evidence that the AIB had access to in relation to the investigation was supposed to be maintained in a secure con?dential ?le, so the fact that any evidence is no longer in the ?le is by itself is inexcusable. We do not believe it is appropriate, or legal, to convene a PSB on the basis of vague allegations when Dr. Kassner has not even been provided with the complete evidence ?le as legally required. Further given due process and common sense, there is no need to rush, and a more complete search should be performed to be sure given the stakesconvened, then we must insist that a date not be scheduled until it is con?rmed that all evidence has been received by Dr. Kassner and myself including the items identi?ed below. We request an extension to provide a response until ten days after receiving the information or a detailed explanation of such critical information was lost that we can provide to the Board. Below is a list of items which are known to be absent from the materials provided. These include essential elements of the AIB. 1. The AIB Certi?cate of Completion: An AIB is not considered completed until the certi?cate of completion is signed by the convening authority and this document details the of?cial ?ndings and recommendations of the investigation. Without this document, there is no completed investigation and no information or evidence from the AIB is supposed to be released to anyone not involved with the investigation. We have asked for this and have not received it. This would show pretext. 2. Documentation regarding recommendations. This in no recommendation for any disciplinary action in any of the materials provided nor any documentation of an event that would warrant such action. We are assuming that this information is in the AIB certi?cate of completion, but this document has never been provided. In fairness, we must be provided this testimony. . Exhibit 3: Testimony of Mr. Willey Bradley. This testimony has been explicitly requested several times and never provided. 176 pages of testimony by Mr. Bradley has been provided, but it is all testimony in relation to another AIB, not the testimony from Dr. Kassner's AIB which was cited and quoted in the AIB report. We further need all of the rest of the testimony from that AIB to put the testimony of Mr. Bradley in context especially given his testimony says the EXACT OPPOSITE of what the Agency cited it for in the so-called technical review. . Exhibit 50: This exhibit has been requested more than once and what was provided as Exhibit 50 is what was already received as Exhibit 52. Exhibit 50 is supposedly an email/(s) from Claudia Blakeley which was referenced in the AIB report with an exact date and has yet to be provided. There is also a quote from this exhibit in the AIB report so there are email(s) which does not appear in any of the evidence provided thus far. It is quoted and the context of the quotation should be provided. . Exhibit 41: This is another exhibit which was never provided and was requested repeatedly. In a response from Mr. Powers on 10/5/2017 this missing exhibit was described as a from Dr. Kassner" and ,we were informed that this document is not available, but Dr. Kassner "already has this evidence" because he submitted it. This appears to be false. We need more information to assess. Regardless, it is the responsibility of the Agency to provide a complete evidence ?le. It is not Dr. Kassner's responsibility to track down evidence or guess what a referenced exhibit is referring to. Furthermore, there are multiple exhibits which appear to contain long email strings or multiple related documents, so even if Dr. Kassner where able to locate a referenced document that does not mean that he has access to the entirety of what is in the exhibit ?le. . Exhibits 25, 27, 28, 29, 30, 31, 32. These exhibits have not been received and no information has been provided in relation to these documents. In total, more than 20% of the known numbered exhibits associated with the AIB have not been provided. We emphasize known numbered exhibits because we have not been provided with an exhibit index. The highest numbered exhibit we have seen is Exhibit 53, but there could be more. We have no way of knowing because no exhibit index has been provided. An exhibit index is also a requirement of a completed AIB report in accordance with handbook 0700 precisely for this reason. Thus, the exhibit index is also requested. 7. 10. Documents referenced and discussed in testimony have not been provided. It is likely that some or all of these may correlate with the numbered exhibits which have not yet been received, but there is no way of knowing until the numbered exhibits are received. It is further worth noting that there is no exhibit index detailing the number of pages each exhibit is supposed to contain. This is particularly problematic because some exhibits have titles like 7 emails" and contain multiple emails from multiple people and there is no way of knowing if we have received all of the emails that were provided to the AIB. However, based on references in testimony it clear that at least some emails and/or documents provided to the AIB have not yet been provided. Documents from the evidence ?le appear to be missing or have been withheld. Exhibit 53a is titled "Dr. Kassner email with Dr. Boyle and various others." However, the last page of this exhibit as provided is an email exchange not involving Dr. Kassner or Dr. Boyles. It is a brief email exchange form 11/2/2016 discussing a "fact ?nding" that was used as the justi?cation for the AIB. It appears that this email was copied and sent to us as part of Exhibit 53a by accident, but it clearly came from the same evidence binder because the hole punches line-up. It is inconceivable that a fact-?nding could have occurred and this single email is the only documentation, especially when this email references other emails and communications with Dr. Jackson, VISN 7 deputy Network Director. This Fact Finding is also asked about and discussed in testimony. Thus, it is clear that additional communications and documentation in relation to this "fact ?nding" was part of the evidence ?le and Dr. Kassner has not yet received it. Exhibit 48 suggests incomplete disclosure of material events. Exhibit 48 is titled "50- 50 retention plan." The exhibit as provided consists of an email sent by Dr. Randal Weaver, DCOS to Mr. William Burt, specialist on 9/19/2016 with an attachment, six months before any charge letter was drafted. There must be more to this email exchange. There must have been a request for this information by somebody or additional communications clarifying why this was sent to We suspect that at some point there was more documentation in the evidence ?le. Regardless, in general, there is an expectation that if a portion of a communication is introduced into evidence then the full conversation should be provided. This evidence is therefore being requested. All documentation in relation to AIB extensions. All charge letters provided state that a completed report must be provided within 45 days of the date of the charge letter and any request for time extension must be requested and granted in writing. If a certi?cation of completion exists certifying that the regulations in VA Handbook 0700 were followed then these communications requesting and granting time extensions must also exist. Time limits along with documenting the reason for time extensions is an important 11. 12. 13. protection against witch-hunt investigations. Thus, the reason from why multiple extensions to the 45-day limit were granted is clearly important. Regardless this documentation clearly should be part of the AIB ?le and Dr. Kassner should have received it. Documentation authorizing changes to the scope of the investigation. On 2/2/2017 Dr. Kassner was removed from his position under the pretense of a pending investigation with 3 allegations. In early April 2017, he was asked to testify in relation to 3 allegations, but 2 of the allegations had been changed since 2/2/2017. Then the ?nal AIB report lists 23 allegations of which only one (1) matches any of the allegations previously communicated to Dr. Kassner. Again, this documentation we believe to be a regulatory requirement that must be part of the completed AIB ?le. The regulations do not allow for the changing of allegations without a formal amendment to the charge letter. Even if this procedure was not followed there still must be emails detail when and why the allegations were changed. In addition, several witnesses were asked open?ended, targeted, and follow-up questions in regarding an EAP referral and a worker's compensation claim in relation to Dr. Kassner even though there were no of?cial questions pertaining to these matters in any of the charge letters disclosed. This further suggests that the scope of the investigation was changed. The documentation authorizing Mr. Kevin Jones to perform a "technical review." Mr. Jones was not a party to Dr. Kassner's AIB or identi?ed as one of the advisors in relation to Dr. Kassner's AIB on any of the charge letters. This is not a trivial issue, because this "technical review" by Mr. Jones apparently took over 3 months and reversed many of the ?ndings in the original AIB report. We are requesting all documentation in relation to this matter. All testimony which was relied upon must be provided. In his "technical review" Mr. Jones refers to the "evidence provided through the persuasive testimony of Mr. Bradley." Mr. Jones would not be referring to testimony as "persuasive" unless he was present to observe the witness testifying or had access to other material. Testimony regarding Dr. Kassner, as witnessed by Mr. Jones in separate AIB, including inquiries regarding Dr. Kassner's personal life and family seem to be relied upon in making the decision to convene a PSB. Therefore, we are request the transcripts of all testimony where Dr. Kassner was mentioned or discussed that Mr. Jones observed or otherwise had access to, and documents otherwise available to Mr. Jones at the time he made the conclusion regarding persuasiveness of Dr. Kassner contributing to a hostile environment for Mr. Bradley. Again, this is the exact opposite of what Mr. Bradley believed and testi?ed to at pages 6 and 7 of the provided testimony: DR. TAYLOR: Okay. Since September of 2016, have you perceived your work environment to be hostile or have you seen hostility in the work environment directed at other employees? THE WITNESS: Yes, I have. DR. TAYLOR: Okay. Whom would you identify? THE WITNESS: Ms. Sheila Walsh. MR. STEVENS: Anyone else? THE WITNESS: No. Thus, the Agency wants Dr. Kassner ?red for causing a hostile work environment for even though Mr. Bradley CHOSE not to identify Dr. Kassner. That underscores the contrived nature of the technical review. In light of the above and serious penalties that could result from the destruction of evidence, we request a date not be scheduled until it is con?rmed that all evidence has been received by Dr. Kassner and our of?ce including the items identi?ed above or con?rmation of the destruction of such documents is provided along with an explanation. We likewise request an extension to provide a response until ten days after receiving the information or a detailed explanation of such critical information was lost that we can provide to the Board. Very Truly Yours. Shaun Southworth, Esq.