Battle Far From Over in Dentist’s Discrimination Claim Against VA

Andrew D. Maxwell retired from the Veterans Administration dental staff earlier this month, but there were no gold watches or sentimental parties in his honor to mark the occasion.

After 17 years with the VA, the 62-year-old dentist simply turned in his office key at San Diego’s VA Medical Center, filled out some paper work and left.

For two years, Maxwell and the hospital have been locked in a battle that--depending on whom you believe--has racial bias or professional incompetence at its center. Defeated in the latest skirmish, Maxwell retired under protest to avoid being fired.

But the war is far from over. The next step is an appeal to the U.S. Equal Employment Opportunity Commission. Maxwell is asking it to rule on whether he was victimized because he is black and because he complained about his treatment, both this time and in an earlier dispute with the VA.

“This is just a plain ol’ VA lynching. I’ve been hung,” Maxwell said. “If they had anything concrete against me, it wouldn’t have taken them two years to toss me out.”

It has been two years of charges and countercharges, of being assigned to the hospital’s library for more than a year with virtually nothing to do, of rejoicing when an anti-bias investigator found that he had indeed been treated unfairly based on race, of fuming when a VA official overruled that finding, of wondering whether a career in dentistry will be ended by a bureaucracy that Maxwell sees as out to get him.

Maxwell and his lawyer, Bruce M. Stark of Long Beach, also contend that the protracted fight is an example of how the VA perpetuates an old boys’ network by persecuting dissenters.

“I specialize in representing federal employees, and I’ve had innumerable cases with the Veterans Administration,” Stark said. “I’ve caught them falsifying their records. They have a propensity for taking rather severe retribution against their staff.”

Mindful of the legal challenges ahead, the VA denies any improprieties and confines its comments on Maxwell to the several inches of paper work in the case.

“During this past year, Dr. Maxwell’s professional abilities to practice competent and acceptable dentistry was at a level of incompetency that is detrimental to patients under his care,” wrote George W. Carroll, chief of the local dental service, in an August, 1986, special assessment of Maxwell’s performance. He cited instances that he said showed Maxwell had poorly treated or missed dental problems altogether, and those in which he took too long to complete treatments.

Carroll also suggested that Maxwell had unnecessarily referred patients to private dentists and had allowed unlicensed people to do such dental work as cleaning teeth.

More than a year later, in August, 1987, the VA notified Maxwell that it was proceeding with a formal case to fire him because of such problems. A hearing was held in January of this year, and Maxwell was notified in a letter dated April 22 that he would be dismissed May 13.

Throughout it all, Maxwell protested that he was being railroaded. He protested to everyone from newspaper reporters to U.S. Sen. Alan Cranston (D-Calif.).

“Everything I say is documented,” Maxwell said as he ticked off details, surrounded by piles of paper work.

Sometimes, the record clearly agrees with him; most of the time it appears to be his word against that of his bosses.

But Maxwell points out that, when it comes to proof, the VA holds all the cards because it has denied him access to complete patient records because of privacy considerations.

Upset by Limits

Undisputed is that Maxwell first contacted a VA equal employment opportunity counselor in April, 1986, because he was upset about limits on his duties as chief of the VA’s outpatient dental clinic in Mission Valley. His predecessor did not have such limits, Maxwell contends. He said his complaint followed several months of discussing the problem fruitlessly with his boss, Carroll.

Maxwell believes that his authority was limited because he had won the San Diego job as a settlement of a 1980 discrimination complaint he filed against the VA while employed in Vancouver, Wash.

Less than a month after Maxwell contacted the counselor, the VA sent a two-man inspection team from Washington. “It is reasonable to infer a causal relationship” between the two events, a report by equal opportunity investigator Juanita Ford said later.

From there, the clearest account of Maxwell’s grievances is offered in this July, 1987, report.

Though some principals contend that the inspection team’s visit was to review all aspects of the dental service, Ford found evidence that “a review of Dr. Maxwell’s competency and activities was the real reason for the site visit.” She noted that Carroll had sent records on 17 of Maxwell’s patients to Washington beforehand.

She also noted that one of the inspectors, Daniel E. Floyd, the VA’s deputy assistant chief medical director for dentistry, was one of the administrators against whom Maxwell had filed his successful 1980 discrimination complaint. A report at the time said Floyd “described Dr. Maxwell’s concern about his treatment as being paranoid.”

(In the 1980 case, Maxwell contended he had been passed over repeatedly for administrative posts. A settlement brought Maxwell to San Diego in 1982 to become chief of the outpatient clinic.)

Ford found that, in the current case, Floyd gave “testimony (that) certainly doesn’t project itself as being from an unbiased objective observer.”

Ford also reported that, as the VA competency investigation progressed through the summer of 1986, Maxwell was never told that his work had been unsatisfactory nor was he given a chance to improve his performance, actions that have been standard in similar cases elsewhere, she said.

Removed From Duties

Instead, he was removed from clinical duties in May, 1986, and barred from even entering the dental clinic two months later. The reason for his abrupt treatment appeared to be racial discrimination, Ford concluded.

“I find that, justified or not, Dr. Maxwell was not treated in an open and aboveboard manner and not in accordance with prevailing rules, regulations and guidelines,” Ford wrote.

She added that, except for Floyd, reprisal for the 1980 bias complaint did not seem to be a factor in the VA’s actions.

Maxwell was informed recently that the VA’s associate deputy chief medical director, Daniel H. Winship, had rejected Ford’s findings that there was bias in his case.

From there, Maxwell’s story becomes one largely of petty indignities.

A professional who once helped train students at Harvard University, he has spent the last two years collecting his $75,000-a-year salary but not being allowed to perform any dental work.

Clocking Time in Library

For more than a year he sat in the VA Medical Center library, under orders to report to a timekeeper morning and afternoon and to get the personnel director’s permission to make any phone calls. He did perform a few small tasks, such as making personnel badges.

Though he had to report at 7:30 a.m., the library didn’t open until 8, so Maxwell began visiting a dying cancer patient whom he had treated at the dental clinic. “I got chastised for trying to give comfort to a sick patient,” he said.

Then last fall he was given an office. “They took me out of the library and put me in a single room with a desk and light and a couple of chairs. No telephone, no typewriter, no nothing. Two rooms on either side of me have telephones; I can’t have a telephone,” Maxwell said.

Last Nov. 27, the day after Thanksgiving, Maxwell was given a substantive assignment: summarize the special dentistry needs of AIDS patients and outline how best to meet them. But he could only take four working days to complete it, the memo from dental chief Carroll said.

“Please be advised that, as a government employee, you are expected to be involved in productive and useful activities,” it warned.

Maxwell also says that a dispute over whether names should be excised from patient files kept him from preparing an adequate defense for his dismissal hearing Jan. 26.

Today, he vacillates between resignation and anger at the outcome of the two-year battle.

“It’s extremely depressing and frustrating,” he said, adding: “It’s outrageous that our whole life has been turned upside down because of racism.”

Claims Family Ostracized

He remains convinced that he was ostracized at the VA Medical Center not just because he is black and had complained of racism in the past, but also because his wife, Diane, is white. In 20 years of marriage, their interracial union was an issue only one other time, they say: when the VA declined to place him in a chief of staff position because an interracial couple might not fit into an unintegrated community.