Tuesday, October 20, 2015

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C.A. Upholds State’s Firing of Doctor Labeled Dishonest

By a MetNews Staff Writer

A state agency had cause to fire a medical consultant who failed to disclose that she had a private practice, the Court of Appeal for this district ruled yesterday.

Div. Seven, in an unpublished opinion, affirmed the denial of Vickie Mabry-Height’s petition for writ of administrative mandamus, after the California State Personnel Board upheld her dismissal from the California Department of Social Services.

Mabry-Height, a licensed physician who now practices in Palm Desert, according to Medical Board records, was hired by CDSS as a medical consultant on a part-time basis in 2004. Assigned to the Los Angeles West Branch of the Disability Determination Services Division, her job was to review and interpret medical evidence submitted by physicians to assist the division in determining claimants’ eligibility for benefits under Social Security and other government programs.

At the outset of her employment, she was given a department publication regarding outside activities, and was required to complete a certification form. She certified that she had a private practice involving “patients [who] have nothing to do with DSS,” to which she devoted 20 hours per week.

She also acknowledged that she was required to inform the department within 30 days if the information on the form changed.

By 2008, the doctor had become a full-time employee, and signed a new certification form saying she had “no outside employment.” She also completed Form 700, the Statement of Economic Interests required of all state officers and employees, and said she had no reportable economic interests.

In 2010, she completed another Form 700, again saying she had no other interests. The following year, however, she disclosed that she had no more than $100,000 in income from her private practice, stating in an attachment she had no conflict of interest because she did not provide “any services to any State of California agency on a regular basis.”

She also informed the CDSS, by filling out a new certification form, that she had a private practice not involving CDSS clients.

In 2011, after a staff member at another branch of her division realized that Mabry-Height had been retained to perform a consultative examination for that branch, despite her being a division employee, an investigation was conduct. In May of that year, CDSS fired her for insubordination, willful disobedience, dishonesty, and other misconduct.

The department charged that she had engaged in unreported outside employment, including work for the Medical Board and the state prison system, and that she had given “vague, incomplete, and non-responsive” answers when questioned by the investigator. Appealing to the personnel board, she said the charges were “fabricated, without foundation, and defamatory,” and that she was being discriminated against on the basis of race, gender, disability and age and being retaliated against for whistleblowing.

She testified at her administrative hearing that her supervisors always knew she had a private practice, which her branch chief disputed, saying she was not aware of it until the 2010 incident, at which time she searched and found Mabry-Height’s website. The doctor’s immediate supervisor gave similar testimony.

Mabry-Height claimed that when she moved her office from Culver City to Riverside County, in 2008, she was told by a manager that she was “outside of the jurisdiction of Social Services” and could perform private consultative examinations for clients of other branches. She said she had forgotten signing the certification form, and thus had not reported her outside work to the branch at which she was employed.

A supervisor at the La Jolla Branch, for which the doctor performed work, said her doing exams for one branch while being employed at another was unethical and would not have been permitted had the supervisor been aware of it.

The administrative law judge found Mabry-Height’s testimony not credible, labeling her claim not to understand the conflict-of-interest forms and the questions asked of her by the investigator “a fabrication,” sustaining the charges and concluding that dismissal was the appropriate penalty. The board adopted the findings and proposed decision as its own, and a Los Angeles Superior Court judge denied writ relief.

Los Angeles Superior Court Judge Mitchell Beckloff, sitting on assignment in the Court of Appeal, said the trial judge was correct because the board’s findings were supported by substantial evidence.

“The contradiction of Dr. Height’s testimony by other witnesses and her demeanor while testifying provided the ALJ with a rational basis for rejecting her testimony,” Beckloff wrote. “…The ALJ could also disbelieve her testimony on the ground it was ‘inherently improbable.’…Because Dr. Height’s testimony was not uncontradicted and unimpeached, and there was a basis for finding her not to be a credible witness, we will not overturn the ALJ’s credibility determination.”

Nor was the penalty excessive, Beckloff went out to say, because the doctor’s dishonesty in insisting that she did not understand the forms she filled out and that she did not know she had to report her outside employment meant it was likely that her misconduct would recur if she were allowed to keep her job.

The case is Mabry-Height v. California State Personnel Board, B253269.