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Department of Veterans Affairs

Date: January 8, 2015

Memorandum

From:

(b)

(6)

(b)

(6)

, Office of Accountability Review (OAR)

, Office of Accountability Review (OAR)

Subj: Report of Investigation, Alleged Whistleblower Retaliation, Phoenix VA Healthcare System, Phoenix, Arizona

To:

Acting Director, Office of Accountability Review

The Administrative Investigation has been completed as directed by your charge memorandum dated September 11, 2015.

Introduction:

(b) (6)

is an Addiction Therapist at the Phoenix VA Healthcare System

(b) (6)

(b)
(b)

(PVAHCS). On January 12, 2015,

television news station in which

gave an interview to a local Phoenix

)

(b) 6
(b)
6

alleges

(b) 6
(b)
6

indicated Veterans were being discharged from the

has been retaliated

emergency room improperly. (

(b) (6)

against by Interim Medical Center Director Glen Grippen for, among other things, giving this interview. As stated in your charge memorandum, this investigation was conducted

to evaluate whether the media.

(b) (6)

was retaliated against by Mr. Grippen for speaking to

We interviewed the following individuals either in person or by phone:

(b)

(6)

(b)

(6)

(b)

(6)

Dr. Carlos Carrera, Supervisory Psychiatrist (Section Chief)

(b)

(6)

(b)

(6)

Dr. Darren Deering, Chief of Staff Glen Grippen, Interim Medical Center Director

(b) (6)

Becky Kordahl, Nurse Executive, Madison, WI (formerly detailed to Phoenix VA Healthcare System as Acting Associate Director for Patient Care Services)

(b)

(6)

(b)

(6)

(b)

(6)

(b)

(6)

Dr. Sylvia Vela, Deputy Chief of Staff

1

Procedural Issue:

We attempted to interview

(b) (6)

assaulted

(b) 6
(b)
6

(b) (6)

(b) (6)

, a PVAHCS employee who alleged

(b) 6
(b)
6

supervisor

(b) 6
(b)
6

indicated through

was too

traumatized by the assault to discuss it with us. Although

have been relevant, its absence did not prevent us from making a complete set of supportable findings of fact.

(b) (6)

testimony would

Legal Authority:

In order for whistleblower retaliation to be present, the following elements must be shown:

1. The employee made a protected disclosure of information under 5 U.S.C. § 2302(b)(8) or engaged in protected activity under 5 U.S.C. § 2302(b)(9);

2. The alleged retaliator took, failed to take, or threatened to take a personnel action;

3. The alleged retaliator had actual or constructive knowledge of the protected disclosure or activity, and;

4. The protected disclosure or activity was a contributing factor in the personnel action.

Once whistleblower retaliation has been established, an agency may defend the personnel action by showing clear and convincing evidence that it would have taken the same personnel action in the absence of the protected disclosure.

Findings of Fact:

Addiction Therapist

at the PVAHCS

(b) (6)

(b) (6)

of Fact: Addiction Therapist at the PVAHCS (b) (6) (b) (6) (b) (6) is a Social
of Fact: Addiction Therapist at the PVAHCS (b) (6) (b) (6) (b) (6) is a Social

(b) (6)

is a Social Worker who serves as

(b) (6)

is a colleague of

(b) (6)

(b) (6)

)

On June 25, 2014, for reasons unknown,

privacy-protected electronic VA medical record without a work-related reason to do so.

personal,

(b) (6)

accessed

(b) (6)

( (b) (6)

)

(b) (6) testified (b) immediately notified (b) (6) on June 25, 2014 that (b) had
(b) (6)
testified
(b)
immediately notified
(b) (6)
on June 25, 2014 that
(b)
had
6
(b)
6
carelessly but inadvertently accessed
medical records, explained how it happened
6
and apologized.
(b)
stated that
(b)
told
(b) (6)
, “You know, if there's anything
6
6
else you want me to do, I'll do it
(b)
testified that
(b) (6)
indicated the
access was “no big deal.” (
(b) (6)
)

2

Over four months later, on October 29, 2014,

(b) (6)

that

(b) (6)

June 25, 2014, and that access. 1

(b) (6)

(b) 6
(b)
6

reported to Privacy Officer

medical records on

inappropriate(6) (b) 6 reported to Privacy Officer medical records on had inappropriately accessed had notified (b)

had inappropriately accessed

had notified

(b) 6
(b)
6

(b) (6)

on that date about

On October 21, 2014, (b) (6) contacted a local Phoenix court official by e-mail and
On October 21, 2014,
(b) (6)
contacted a local Phoenix court official by e-mail
and told her a VA Public Affairs (PA) Specialist,
(b) (6)
, would be accompanying
(b)
to court on October 23, 2014 to conduct interviews
with
(b)
about the
(b) (6)
program. The court official responded to
(b) (6)
6
and advised
(b)
that prior approval was required before media
6
representatives could be allowed into the court.
(b) (6)

On October 29, 2014,

about

Access Report (SPAR) and provided it to

(b) (6)

(b) 6
(b)
6

contacted Privacy Officer

(b) (6)

(b) (6)

to notify

(b) (6)

access to

medical record.

ran a Sensitive Patient

. The report confirmed that

(b) (6)

)

(b) (6)

(b)

(6)

accessed

(b) (6)

record on June 25, 2014. (

(b) 6
(b)
6

(b)

(6)

(b) 6
(b)
6
(b)
(b)

submitted a formal complaint with the Privacy Office about inappropriate

medical record on November 10, 2014.

access to

from the Privacy Officer stating that, on June 25, 2014,

accessed

(b)
(b)

complaint included a note

told

(b) (6)

6 (b) (6)

(b)
(b)

chart accidentally and placed a progress note in it. (

)

(b) (6)

accidentally and placed a progress note in it. ( ) (b) (6) (b) (6) (b) (6)

(b) (6)

(b) (6)

testified that conflict between

(b) (6)

(b) (6)

and

(b) (6)

became evident after their e-mail exchange in October, concerning

bringing the VA Public Affairs Specialist to court without first making appropriate

arrangements with the court. After this conflict arose,

that

(b) (6)

told

(b) (6)

had accessed

(b) 6
(b)
6

medical record in June. (

(b) (6)

(6) had accessed (b) 6 medical record in June. ( (b) (6) 1 The evidence as

1 The evidence as to when

(b) (6)

(b) (6)
(b)
(6)

testified

(b) (6)

(b
(b

first reported that

accessed(b) (6) (b) (6) testified (b) (6) (b first reported that (b medical record is inconsistent.

(b
(b

medical record is inconsistent.

(b) (6)

record when

(b)
(b)

requested a(b medical record is inconsistent. (b) (6) record when (b) was uncertain of the thinks first

was uncertain of the

thinks(b) (6) record when (b) requested a was uncertain of the first reported this event on

first reported this event on or about October 7, 2014.

first reported

(b) (6)

access of

(b)
(b)
(b
(b

initially testified that

(b) (6)

Sensitive Patient Access Report (SPAR) on or about “October 19, 2014.”

(b
(b

indicated

date, stating, “I can’t say definitively the first time because it may have been verbal. I think

when

the SPAR report requested by

(b
(b

expressed concern

(b) (6)

The date on

(b) (6)
(b) (6)

testified.

misspoke, and thatconcern (b) (6) The date on (b) (6) testified. told (b) that requested a sensitive patient

told

(b)
(b)

that

requested a sensitive patient access report…” (

(b) (6)

was October 29, 2014, rather than October 19, as

(b) (6)

, (b) (6)
,
(b) (6)

indicated

(b)
(b)

the correct date

(b)

(6)

(b)

(6)

In a subsequent telephone conversation with

(b) (6)

(b
(b

contacted

records had been weighing on

accessedwith (b) (6) (b contacted records had been weighing on (b was October 29. During this

(b
(b

was October 29. During this conversation,(6) (b contacted records had been weighing on accessed (b (b (b) (6) access of mind

(b
(b

(b) (6)

access of

mind for months. Preponderant evidence indicates

first reported that

medical records on October 29, 2014 when

requested afor months. Preponderant evidence indicates first reported that medical records on October 29, 2014 when SPAR

SPAR report.

3

On December 6, 2014,

Counsel, stating that suicidal Veterans were not being properly cared for and that

(b) (6)

filed a complaint with the Office of Special

(b)
(b)

medical record was being accessed by other employees. (

(b) medical record was being accessed by other employees. ( (b) (6) (b) (6) filed a

(b) (6)

(b) (6)

filed a

submitted

(b)

(6)

)

Three days later, on December 9, 2014,

accessing

complaint against

Examiners regarding

additional information to the licensing board on January 23, 2015.

(b) (6)

(b) 6
(b)
6

with the State of Arizona Board of Behavioral Health

(b) 6
(b)
6

medical record.

(b) (6)

)

(b) 6
(b)
6

On January 12, 2015,

station to express

proper assessment and treatment in the emergency room and that medical record had been accessed inappropriately by a co-worker.

(b) (6)

gave an on-camera interview to a local ABC news

(b) 6
(b)
6

concerns that Veterans with suicidal ideation were not receiving

(b) electronic (b) (6)
(b)
electronic
(b) (6)
ideation were not receiving (b) electronic (b) (6) ) On January 14, 2015, Interim Medical Center

)

On January 14, 2015, Interim Medical Center Director Grippen held a meeting with senior leaders and other involved management officials to discuss the concerns

(b) (6)

aired in

(b) 6
(b)
6

media interview. (Grippen, p. 17, L21-23; p. 18, L1-9 and

17-23; p. 19, L1-9 and 18-23, p. 20, L1-11, Exhibit 007)

One witness, former Phoenix VA Acting

provided a sworn affidavit stating that the meeting was about firing

placing him on administrative absence.

(b) (6)

(b) (6)

(b) (6)

or

Nine other witnesses were present at the meeting. Six witnesses testified that the

meeting was about the patient care concerns

(Grippen, p. 15, L17-23, p. 16, L1-2; Deering, p. 7, L22-23; Carrera, p. 15, L6-13;

(b) (6)

expressed to the media.

Kordahl, p. 9, L11-21; (b) (6) (b) (6) ) Eight witnesses testified that there was
Kordahl, p. 9, L11-21;
(b) (6)
(b) (6)
) Eight witnesses testified that there was no discussion
in this meeting about firing
(b) (6)
, placing
(b)
on administrative absence or
taking any other personnel action against
(b)
6
(Grippen, p. 24, L1-11; Deering, p. 16
6
(all), p. 17, L1-6; Carrera, p. 15, L18-23; Vela, p. 10, L1-7; Kordahl, p. 11, L13-18;

(b) (6)

L18-23; Vela, p. 10, L1-7; Kordahl, p. 11, L13-18; (b) (6) (b) (6) ) Seven witnesses

(b) (6)

) Seven witnesses testified that Mr. Grippen was informed

(b) (6)

and

(b) (6)

concerning the court’s recent

intent to bring a Public Affairs representative to the

(b) (6)

to bring a Public Affairs representative to the (b) (6) ) about the conflict between objection

)

about the conflict between

objection to

courtroom. (Grippen, p. 20, L18-23, p. 21, L1-5; Deering, p. 8, L1-4 and L6-19, p. 12, L11-17 and Exhibit 039; Vela, p. 7, L18-23, p. 8, L1-3, p. 11, L1-3, Exhibit 040; Kordahl,

p. 10, L13-23, p. 11, L1-5;

On January 21, 2015, Social Worker

Lisa Benner, describing a sequence of events

wherein

hands on

was reported, Mr. Grippen held another meeting of management officials to discuss the

situation. (Grippen, p. 28, L18-23; p. 29, L1-16;

(b) (6)

(b) 6
(b)
6
(b) 6
(b)
6

in

supervisor,

claimed occurred on January 20, 2015

sent a message to

(b) 6
(b)
6
(b) 6
(b)
6

alleged

(b) (6)

confronted

(b) 6
(b)
6

(b) (6)

office, placed

(b) 6
(b)
6
(b) 6
(b)
6

, and partially blocked

egress.

(b) (6)

) Soon after this incident

(b) (6)

4

During the meeting, Mr. Grippen ordered a fact finding to be completed. He also

decided to place

administrative investigation into the allegation that

in the workplace. (Grippen, p. 33, L1-6; Exhibit 031)

(b) (6)

on administrative absence pending the results of the

(b) 6
(b)
6

had committed an act of violence

On February 2, 2015,

administrative absence. The notice stated that

care at PVAHCS as a Veteran but would have to check in with the VA Police upon arriving on campus for appointments and check out with them upon departing.

(b) (6)

received notice that

(b) 6
(b)
6
(b) 6
(b)
6

was being placed on

could continue to receive medical

(b) (6)

)

On March 10, 2015, the fact finding team reviewing the incident between

and

(b) (6)

(b) (6)

issued a report indicating it could not reach a conclusion about whether

(b) (6)

because there was no corroborating evidence.

(b) (6)

(b) (6)

)

assaulted

On March 19, 2015 Mr. Grippen issued a follow-up letter telling

(b) (6)

(b) 6
(b)
6

no

longer had to check in and out with the VA Police when coming to the medical center for

treatment as a Veteran. (

(b)

(6)

)

Analysis:

The January 14, 2015 Meeting

(b) (6)

believes Interim Medical Center Director Glen Grippen convened a

meeting of management officials on January 14, 2015 for the specific purpose of

discussing how

Mr. Grippen’s actions thereafter concerning

Mr. Grippen’s intention to retaliate against

media.

federal service, in substantial part, on the basis of a sworn affidavit submitted by

(b) (6)

formed

could be removed from federal employment, and that

(b) 6
(b)
6

(b) (6)

(b) (6)

have been consistent with

for making a statement to the

(b) 6
(b)
6

from

belief that Mr. Grippen wished to remove

(b) (6)

(b) (6)

, former

(b) (6)

Grippen wished to remove (b) (6) (b) (6) , former (b) (6) ). (b) (6) In

).

(b) (6)

In her affidavit,

stated Mr. Grippen opened the meeting by referring to the media interview of

(b) (6)

stated

(b) 6
(b)
6

attended the January 14, 2015 meeting.

(b) 6
(b)
6

(b) (6)

that had recently aired.

actions, whether

(b)
(b)
6 (b) 6
6
(b)
6

said he went on to ask what could be done could be removed from federal employment or

stated that

(b) (6)

about

placed on administrative absence.

(b) (6)

(b) (6)

(6) about placed on administrative absence. (b) (6) (b) (6) (b) 6 advised that (b) (6)
(b) 6
(b)
6

advised that

(b) (6)

could not be removed for making the public

(b) (6)

(b) (6)

and a

disclosures but could possibly be removed for other unrelated conduct.

added the

social worker

was operating outside the scope of his position.

had heard about a conflict that occurred between

(b) (6)

who works with the Veterans’ courts, because

(b) (6)

indicated that

(b) (6)

(b) (6)

5

discussed whether

propose removal but said more detailed information would be required in order to make

a final determination.

(b) (6)

(b) (6)

involvement with court staff may be sufficient to

)

The details of

significantly from the sworn testimony of every other person we interviewed who was in attendance at the meeting. Specifically, six other witnesses who were present at the meeting testified under oath that the meeting was about the patient care matters

revealed to the media. (Grippen, p. 15, L17-23, p. 16, L1-2; Deering, p. 7,

L22-23; Carrera, p. 15, L6-13; Kordahl, p. 9, L11-21;

(b) (6)

affidavit about the January 14, 2015 meeting differ

(b) (6)

(b) (6)

Eight witnesses who

(b) (6)

was not

differ (b) (6) (b) (6) Eight witnesses who (b) (6) was not were present testified that

were present testified that pursuit of administrative action against

discussed. (Grippen, p. 24, L1-11; Deering, p. 16, p. 17, L1-6; Carrera, p. 15, L18-23;

Vela, p. 10, L1-7; Kordahl, p. 11, L13-18; B

(b) (6)

Seven other

(b) (6)

L1-7; Kordahl, p. 11, L13-18; B (b) (6) Seven other (b) (6) (b) (6) witnesses who

(b) (6)

witnesses who were present at the meeting testified under oath that

recent conflict with

Deering, p. 8, L1-4 and L6-19, p. 12, L11-17 and Exhibit 039; Vela, p. 7, L18-23, p. 8,

L1-3, p. 11, L1-3, Exhibit 040; Kordahl, p. 10, L13-23, p. 11, L1-5;

was discussed. (Grippen, p. 20, L18-23, p. 21, L1-5;

(b) (6)

was discussed. (Grippen, p. 20, L18-23, p. 21, L1-5; (b) (6) On September 16, 2015, (b)
was discussed. (Grippen, p. 20, L18-23, p. 21, L1-5; (b) (6) On September 16, 2015, (b)
was discussed. (Grippen, p. 20, L18-23, p. 21, L1-5; (b) (6) On September 16, 2015, (b)
was discussed. (Grippen, p. 20, L18-23, p. 21, L1-5; (b) (6) On September 16, 2015, (b)

On September 16, 2015,

(b) (6)

provided us with sworn oral testimony about

(b) 6
(b)
6

written affidavit.

written affidavit. (b) (6)

(b) (6)

written affidavit. (b) (6)
(b) 6
(b)
6

testimony helped correct certain misperceptions that may have been created by

(b) (6)

(b) 6
(b)
6
(b) 6
(b)
6

affidavit.

the reliability of

testimony, plus ample additional evidence of record, undermines

sworn affidavit, including:

The discrepancies between witness we interviewed;

The discrepancies between

affidavit and the sworn statements of every otherwitness we interviewed; • The discrepancies between (b) 6 affidavit and the contemporaneous notes of three

(b) 6
(b)
6

affidavit and the contemporaneous notes of three

witnesses who were present at the meeting;

The testimony that

The evidence, volunteered not only by

(b) (6)

appeared to be conflating two different meetings;

(b) (6)

but by

(b)

(6)

(b) (6)
(b) (6)

(b)

(6)

that

(b)

(6)

is an unreliable reporter of events;

(b) 6
(b)
6

(b)

(6)

meet

(b) 6
(b)
6

statement that

specific needs.

prepared the affidavit at

request to

The details in

Dr. Sylvia Vela’s contemporaneous notes from the meeting.

notes begin with a reference to

a hard worker;

mention the conflict between

medical record and instructing

(b) (6)

(b) (6)

affidavit about the January 14, 2015 meeting differ from

(b) (6)

(b) (6)

(b) 6
(b)
6

) Dr. Vela’s

outstanding ratings and

reputation as

affidavit does not mention these details. Dr. Vela’s notes

(b) (6)

(b) (6)

and

(b) (6)

regarding

(b) 6
(b)
6

accessing

(b) 6
(b)
6

to coordinate court communications with

6

(b) 6
(b)
6

but they do not contain any mention of

(b) (6)

; there is no mention of mediation in

(b) (6)

stating that

(b)

(6)

remove

other alleged misconduct, the “court interference,” might be enough to

. Dr. Vela’s notes indicate mediation was discussed by

(b) (6)

affidavit.

(b) (6)
(b) (6)
mediation was discussed by (b) (6) affidavit. (b) (6) The details in contemporaneous case notes of

The details in

contemporaneous case notes of PVAHCS Chief of Staff Dr. Darren Deering. (Exhibit

039) Dr. Deering’s notes begin with reference to

similar statement is contained in

conflict between

(b) (6)

affidavit about the January 14, 2015 meeting differ from the

outstanding rating; no

affidavit. Dr. Deering’s notes mention the . Dr. Deering’s note also refers to

(b) (6)

(b) (6)

(b) (6)

and

record and the resulting privacy complaint

(b) (6)

to be fair with

(b) 6
(b)
6

filed.

(b) (6)

(b) (6)

(b) (6)

access to

(b) (6)

Dr. Deering’s notes reflect guidance from

and treat

and the Director meeting with the employee. No similar references are contained in

(b) 6
(b)
6

the same as any other employee. Dr. Deering’s notes mention mediation

(b) (6)

affidavit.

The details in

notes in

system. (

(b) (6)

affidavit about the January 14, 2015 meeting differ from the

computerized case management

(b) (6)

(b) (6)

(b) (6)

(b) 6
(b)
6

In preparation for the meeting,

identified key points for

identified two case precedents where action was taken against senior

discussion.

leaders – one for failing to stop actions that could be perceived as retaliatory and the other for failing to take actions that would remedy a hostile work environment.

(b) (6)

(b) 6
(b)
6

did not include any reference to

(b) 6
(b)
6

(b) (6)

analysis or discussion of case law

in

protection,

improving working relationships and providing a safe working environment for all; no

mention of these details is contained in

affidavit. After mentioning that

(b) (6)

provided information about whistleblower

notes indicate that discussion in the meeting focused on

(b) (6)

affidavit.

(b) (6)

testified “…some of the details in

alleged that

(b) (6)

statement was (sic) confusing two separate meetings.” (

statement was (sic) confusing two separate meetings . ” ( ) The first meeting about (b)

) The first meeting about

(b) (6)

(b) (6)

meetings . ” ( ) The first meeting about (b) (6) (b) (6) (b) (6) was

(b) (6)

was held on January 14, 2015; a second

(b) (6)

assaulted

(b)
(b)

(b) (6)

meeting was held later, after

(Grippen, p. 28, L18-23, pages 29-30 (all), and p. 31, L1-3;

(b) (6)

also provided us an e-mail that describes prior interactions

testified about two instances when

(b) (6)

(b) (6)

(b) 6
(b)
6

had with

along misstated legal advice from

(b)

(6)

passed

(b)
(b)

(6)

representatives, requiring

from (b) (6) passed (b) (6) representatives, requiring (b) (6) to contact the individuals who received

(b) (6)

to contact the individuals who received the erroneous information from

and provide the accurate details.

(b) (6)

)

At the conclusion of her oral testimony

either interviewer, volunteered that

treatment for Stage IV adenocarcinoma of the lung and was suffering from what

(b) (6)

, unprompted by any question from

(b) 6
(b)
6

was undergoing debilitating chemotherapy

(b) 6
(b)
6

7

called “chemo brain,” causing

called “chemo brain,” causing (b) 6 to have an unreliable memory. ( (b) (6) Significantly, meet
(b) 6
(b)
6

to have an unreliable memory. (

(b) (6)

Significantly,

meet needs established by

specifically asked

January 14 meeting).

discussed

administrative absence, and the potential to remove

(b) (6)

(b) 6
(b)
6

testified

(b) 6
(b)
6

composed her affidavit at

(b) (6)

(b) (6)

(b) (6)

request to

(b) (6)

.

testified that

to focus on the “January 13, 2015” meeting (presumably the

(b) 6
(b)
6

wanted

(b) (6)

to document that Mr. Grippen had

media interview, the possibility of placing

told me that

(b) 6
(b)
6
(b) 6
(b)
6

(b) (6)

on

from federal employment.

needed it to give to Senator Grassley—

(b) 6
(b)
6

(b) (6)

(b) (6)

stated, “

(b) (6)
(b) (6)

Senator Grassley and there was some other senator, too.”

all—

(b) (6)
(b) (6)

—yeah, what

(b) 6
(b)
6

also said, “It’s just that

on

was pushing was just in the affidavit documenting that

(b) 6
(b)
6

removal had been discussed, and that putting

(b)
(b)

(b) (6)

there had been a meeting, that

administrative absence had been discussed.”

meeting, that administrative absence had been discussed.” The allegations about standing alone, invalidate and

The allegations about

standing alone, invalidate

and convincing evidence indicates the following:

(b) (6)

(b) 6
(b)
6

overall reliability or ability to recall events would not,

sworn statement. However, as discussed above, clear

Mr. Grippen convened the January 14 meeting to discuss what

(b) (6)

reported to the media, that Veterans were being discharged from the emergency room in a way that was unsafe.

During this discussion Mr. Grippen asked who

(b) (6)

During this discussion Mr. Grippen asked who • (b) (6) supervisory chain reported that (b) 6

supervisory chain reported that

(b) 6
(b)
6

(b) (6)

(b) 6
(b)
6

who had recently taken offense to

unit, and that, as a result of this,

inappropriately accessing

(b) (6)

(b) 6
(b)
6

e-mail about

was.

had been a good employee

(b) 6
(b)
6

role in the work

(b) 6
(b)
6

began making formal reports about

medical record several months before.

Mr. Grippen asked what, if anything, he should do about

with

(b) (6)

.

Mr. Grippen took no personnel action with reference to of the January 14 meeting.

 

(b) (6)

conflict

(b) (6)

as a result

The January 21, 2015 Meeting

(b) (6)

(b) (6)

believes Interim Medical Center Director Grippen retaliated against

termination.

(b) (6)

(b) 6
(b)
6
(b) 6
(b)
6

for

making statements to the media or for reporting inappropriate accesses to

records when, on January 21, 2015, Mr. Grippen held a meeting with

which Mr. Grippen criticized

medical

in

(b) (6)

and made an inexplicable reference to

During the January 14 meeting with facility leaders, Mr. Grippen learned that

(b) (6)

was an outstanding employee who had made significant achievements,

including being nominated and selected for the VISN leadership development program.

Mr. Grippen believed

(b) (6)

accomplishments were inconsistent with reports

8

that

Mr. Grippen wanted to meet and hear

(b) (6)

was apparently embroiled in open conflict with a co-worker.

(b) (6)

side of the story.

Mr. Grippen scheduled a meeting with

discuss the patient care concerns

with his coworker

scheduled to discuss the patient care concerns

surprised to learn the meeting was, at least in part, about Mr. Grippen’s impressions of

(b) (6)

for January 21, 2015, intending to

(b) (6)

conflict

was

(b) (6)

had raised and

(b) (6)

.

(b) (6)

reasonably believed the meeting was

(b) 6
(b)
6

had revealed to the media.

(b) 6
(b)
6

as an employee. (the meeting was (b) 6 had revealed to the media. (b) 6 (b) (6) )  

(b) (6)

)

 

(b)

(6)

an article he

Mr. Grippen testified that, during this meeting, he showed

had read about a desire to see

on to say the meeting was not arranged to fire

and p. 27, L1-7) According to

know you’re not being terminated yet.” (

(b) (6)

(b) (6)

personal recovery and successful lifestyle. He indicated

return to that level of accomplishment. Mr. Grippen went

(b) (6)

. (Grippen, p. 26, L17-23

(b) (6)
(b)
(6)

(b) (6)

, Mr. Grippen stated, “

, I want you to

(b) (6)

Although it is difficult to characterize Mr. Grippen’s comment that

being terminated as a “personnel action,” there is no question that Mr. Grippen exercised poor judgment when, during a meeting to discuss patient care issues, he

disparaged

quality employee

convened to permit a whistleblower to explain

issue. Mr. Grippen acknowledged that he could understand how they could be construed as retaliatory to someone who had made disclosures to OSC and shared concerns openly with the media. (Grippen, p. 27, L20-22)

(b) (6)

is not

(b) (6)

(b) 6
(b)
6

as an employee by asking

(b) 6
(b)
6

why

(b) 6
(b)
6

was no longer the

had been in the past. These topics had no place in a meeting

(b) 6
(b)
6

perception of a serious patient care

(b) 6
(b)
6

Placing

(b) (6)

on Administrative Absence

(b) (6)

believes

(b) 6
(b)
6

was placed on administrative absence in retaliation for making

statements to the media or for reporting inappropriate accesses to his medical records.

In fact,

another employee. The timing of the actions taken to place

absence, and the rationale for taking these actions, as discussed below, suggest that Mr. Grippen did not have a retaliatory motive.

on authorized

(b) (6)

was placed on administrative absence for allegedly assaulting

(b) (6)

As discussed above, Mr. Grippen held a meeting about

2015. Some of the leadership members who attended the January 14 meeting

on administrative absence

recommended that Mr. Grippen place

immediately because of

Mr. Grippen took no action against

(b) (6)

on January 14,

(b) (6)

conflict with

(b) (6)

(b) (6)

; however,

(b) (6)

at that point.

Shortly after this meeting with

alleged

also met with

(b) (6)

(b) 6
(b)
6

, Mr. Grippen learned that

(b) (6)

(b) 6
(b)
6

(b) (6)

) Mr. Grippen had

was of

(b) (6)

assaulted

on January 20, 2015.

(b) (6)

supervisor, who described how afraid

9

(b) (6)

. Mr. Grippen attempted to determine a course of action that would ensure

(b) (6)

from retaliation

employees and Veterans were safe, while still protecting for whistleblowing.

Mr. Grippen testified that he arranged another meeting with facility leaders and

that he arranged another meeting with facility leaders and (b) (6) that to discuss the situation.
(b) (6)
(b) (6)

that

to discuss the situation. After the meeting, Mr. Grippen ordered a fact finding

(b) (6)

assaulted

(b) (6)

(b) 6
(b)
6

. He notified

(b) (6)

into the allegation that

(b) 6
(b)
6

was being placed on administrative absence and

would be required to check in

with the VA Police upon arriving for medical appointments and check out with them upon departing the campus. (Grippen, p. 29, L6-14, p. 30, L13-23, p. 31-32 (all), and p. 33, L1-6, Exhibit 031)

On March 10, 2015, the fact finding team provided a report indicating they were unable

to reach a conclusion about whether

were no other eyewitnesses and no other corroborating evidence.

received this report, Mr. Grippen issued a memorandum dated March 19, 2015, lifting

the requirement for

issues with

supervisor about

effect while Mr. Grippen considered a plan to return

(b) (6)

assaulted

(b) (6)

because there

) After he

(b) (6)

(b) (6)

to check in and out with the VA Police. Because of the

(b) (6)

(b) (6)

(b) 6
(b)
6

and the information Mr. Grippen had received from

fear of

(b) (6)

, the authorized absence mandate remained in

(b) (6)

to duty. (Exhibit 031)

Mr. Grippen did not place

received a report that

ordered a fact finding on the assault charge. While the fact finding was pending,

Mr. Grippen received other negative reports about

coworkers. As soon as the fact finding report was complete, he ended the requirement

that

possible to conclude that placing

his access to the Medical Center were retaliatory.

(b) (6)

on administrative absence until after he had

had assaulted a coworker. Mr. Grippen immediately

(b) (6)

(b) (6)

interactions with

(b) (6)

be escorted by Police while on campus. For these reasons it is not

(b) (6)

on administrative absence and restricting

Failure to Return

(b) (6)

to Duty

(b)

(6)

(b)

(6)

believes Interim Medical Center Director Grippen has failed to return

(b) 6
(b)
6
(b) 6
(b)
6

to duty in an appropriate role, and has left

languishing on administrative

absence, in retaliation for making statements to the media or for reporting inappropriate accesses to his medical records.

Documentation gathered during the investigation reflects Mr. Grippen’s ongoing efforts

to find a suitable placement and return

(b) (6)

to active duty status. Returning

(b) (6)

(b) (6)

(b) 6
(b)
6

to duty is complicated by the history of conflict between

and

co-workers.

Mr. Grippen testified that

fact finding about the assault was underway to express their concerns about working

with

(b) (6)

co-workers came forward to him while the local

(b) (6)

again. He indicated some of these employees threatened to resign if

10

(b) (6)

came back to work in the same setting. (Grippen, p. 36, L4-10) Evidence

to

we obtained is consistent with Mr. Grippen’s assessment that returning duty was complicated:

(b) (6)

In addition to the alleged confrontation that occurred with

January 20,

(b) (6)

(b) 6
(b)
6

on

assessment of

(b) (6)

provided information about

(b) (6)

(b) 6
(b)
6

interactions with other staff members. Under the heading of

(b)

(6)

“Disrespect & Hostility in the Workplace,”

never seen more blatant disrespect for one’s direct supervisors.

of

Posturing, and Verbal Behaviors is not an Isolated Incident” describes

stated, “In all my life I have

(b) 6
(b)
6

treatment

colleagues is not far behind.” Another section titled “Intimidation,

(b) (6)

(b)

(6)

personal observation of two incidents, one involving a co-worker

(b) (6)

exhibited aggressive,

(b) (6)

(b) (6)
(b) (6)

(b) (6)

supervisor,

(b) (6)

, testified about

and the other involving a client, when

inappropriate behavior.

“escalating, aggressive behavior” and specifically named employees

aggressive behavior” and specifically named employees with concern about working with (b) (6) . According to

with

concern about working with

(b) (6)

. According to

(b) 6
(b)
6

(b) (6)

deterioration of

accessed

which

by

(b) 6
(b)
6
(b) 6
(b)
6

who told

(b)
(b)

they felt unsafe working

also expressed

(b) (6)

(b) (6)

(b) (6)

(b) 6
(b)
6

became very emotional when

relationship with

testified, describing the

that began, not when

(b) 6
(b)
6
(b) 6
(b)
6
(b) 6
(b)
6

medical record in June, but after

(b)
(b)

(b) (6)

(b) 6
(b)
6

sent

testified that

the October e-mail

(b) 6
(b)
6

felt “attacked”

stated

)

(b)

(6)

that

(b) 6
(b)
6

regarded as critical of

response to

(b) (6)

belief that

(b) 6 6
(b)
6
6

e-mail. (

(b) (6)

(b) 6
(b)
6
(b) 6
(b)
6

(b) (6)

is “coming after”

(b) 6
(b)
6

(b) (6)

(b)

(6)

(b) 6
(b)
6
(b) 6
(b)
6

frequently mentions

name to the media in reference to

(b) 6
(b)
6

access to

of Arizona Board of Behavioral Health Examiners which

medical record and that

(b) (6)

filed a formal complaint with the State

(b) 6
(b)
6
(b) 6
(b)
6

believes may end

history of working with

(b)
(b)
(b) 6 6
(b)
6
6

said were “pretty

stated

(b) 6
(b)
6

was

(b) 6
(b)
6

social work career.

testified about

thatstated (b) 6 was (b) 6 social work career. testified about Veterans in the court system,

Veterans in the court system, some of whom had what

significant” criminal histories, yet

sufficiently afraid of

never felt afraid.

(b) 6
(b)
6

(b) (6)

had a security system installed in

home. (

home. ( (b) (6)

(b) (6)

home. ( (b) (6)
home. ( (b) (6)
home. ( (b) (6)

The Medical Center first began addressing returning

March 2015. Notes in the record dated March 17, 2015, indicate Mr. Grippen

considered

a work assignment for

the need of

safe in the workplace.

(b) (6)

to work in

(b) (6)

interests and

(b) 6
(b)
6

coworkers’ interests and attempted to craft

(b)
(b)

need to be free of retaliation and met

(b) (6)

and other coworkers to feel

(b) (6)

that met

(b) (6)

,

(b) (6)

(b) (6)

(b) (6)

proposed duty assignment was reviewed by Psychiatry Section Chief

(b) (6)

(b) (6)

to the

Dr. Carlos Carrera and

Section Chief (b) (6) (b) (6) to the Dr. Carlos Carrera and They described their concerns

They described their concerns about whether assigning

Thunderbird Outpatient Clinic, as he apparently requested, would be a safe

11

environment for the Veterans

and whether

three physicians who reviewed the proposals reached consensus that supervision

(b) (6)

treats in the

(b) (6)

Program

(b) (6)

would be adequately supervised in the remote location. The

through the Psychiatry Service at the clinic may be difficult and not advisable. (

Service at the clinic may be difficult and not advisable. ( (b) (6) In a letter
(b) (6)
(b) (6)

In a letter dated April 1, 2015, Mr. Grippen presented the Agency’s first written proposal

to return

(b) (6)

to work, on the following conditions: (Exhibit 031)

(6)

(6)

(b)

(b)

would continue to work with the

would have a physical office assignment on-site at the Jade Opal

(b) (6)

Program;

Clinic with the City of Phoenix Court and assigned VJO;

(6)

(6)

(b)

of Phoenix Court and assigned VJO; • (6) • (6) (b) and (b) would be supervised

and

(b)

would be supervised by

(b) (6)

would remain on his current tour of duty, 10:00 am – 8:00 pm,

Monday through Thursday.

(b) (6)

declined this offer. (

(b) (6)

In a letter dated May 5, 2015, Mr. Grippen presented the Agency’s second written

proposal to return

(b) (6)

to work, on the following conditions: (Exhibit 031)

(b) (6)

(b) 6
(b)
6

would continue to work with the

(b) (6)

Program on

current tour of duty;

(b) (6)

would have a physical office assignment on-site at the Jade Opal

Clinic with access to a group room;

(b) (6)

at the Jade Opal Clinic with access to a group room; (b) (6) would be supervised

would be supervised by

(b) (6)

The Substance Abuse Clinic (SAC) Team would ensure proper oversight, referral and Veteran care for referrals to the SAC Team from any entity, including VJO courts, VJO personnel, and probation officers, and social workers by screening patients using evidence-based clinical criteria;

(b) (6)

would remain assigned to the Psychiatry Service as that was

(b) 6
(b)
6

preference;

(b) (6)

(b) (6)

position description for

believed his position is under-

believed to be

The Medical Center would submit

reclassification on the basis that graded.

When Mr. Grippen did not receive a response from

May 12 deadline, he sent a follow-up request, dated May 26, and asked

with agreement or proposed changes by June 3. On June 8, Mr. Grippen received an

e-mail message from

(b) (6)

attorney by the

(b) 6
(b)
6
(b) 6
(b)
6

to respond

talked to

(b) (6)

, indicating that

(b) (6)

and the Agency’s offer had been rejected because “it leaves

(b)

(6)

in essentially the same chain of command.”(Exhibit 031)

12

By e-mail dated July 31 to Mr. Grippen,

stated

(b) (6)

(b) 6
(b)
6

spoke with

(b) (6)

attorney and mentioned exploring employment for

(b) (6)

at the Peoria Vet Center, explaining that any such selection is not under

(b) (6)

also indicated

(b) 6
(b)
6

told the attorney the

if

(b) 6
(b)
6

(b) (6)

)

does not return to

(b) (6)

the control of the PVAHCS.

Agency will have to begin the process of removing

work; the attorney affirmed this understanding.

Additional conversations between

Based on a summary of the attorneys’ discussion provided to Mr. Grippen by e-mail

dated August 5, 2015,

could

submit a resignation or come in for the meeting they were attempting to schedule for the

duty under the conditions outlined.

(b) (6)

and

(b) (6)

(b) 6
(b)
6

attorney followed.

(b) (6)

seemed to indicate

(b) (6)

said

(b) 6
(b)
6

was unwilling to return to

stated

(b) (6)

next day (August 6).

option of disability retirement if

e-mail message,

report for work the following Monday,

including removal. The message says the attorney stated he understood and had

informed

August 6, 2015. (Exhibit 031)

(b) (6)

also referenced a previous discussion regarding the

is interested and qualifies. In the same

(b) (6)

did not

(b) (6)

stated

(b) 6
(b)
6
(b) 6
(b)
6

(b) (6)

that

(b) 6
(b)
6

told the attorney that, if

could be subject to disciplinary action,

(b) (6)

should make arrangements to attend the next meeting,

There is no documentation in the record to indicate whether the August 6 meeting occurred.

On August 11,

Office of Special Counsel (OSC) that August 14. (Exhibit 031)

(b) (6)

received an e-mail from

(b) (6)

(b) (6)

, a mediator from the

was requesting sick leave through

In an e-mail to Mr. Grippen dated August 20,

conference call with

(b) (6)

stated

(b) 6
(b)
6

had a status

(b) (6)

and

(b) (6)

, during which

(b)

(6)

indicated

(b) 6
(b)
6

was somewhat interested in working at the Phoenix Vet Center, but not enough to

(b) (6)

to make contact with them.

(b) (6)

(b) 6
(b)
6

indicated

(b) 6
(b)
6

wants to be promoted to a GS-11.to make contact with them. (b) (6) (b) 6 indicated (b) 6 want to work at

want

to work at any facility over which Mr. Grippen has control.

working at the Peoria Vet Center because it is close to where

also mentioned that

does not want

was most interested in

(b) 6
(b)
6

lives.

)

(b) (6)

(b) (6)

Clear and convincing evidence supports the conclusion that Mr. Grippen has taken

reasonable steps to return

(b) (6)

to duty. The conditions he outlined for

(b) (6)

(b) (6)

(b) (6)

return were based on reports he received about

(b) 6
(b)
6

alleged

threatening and violent interactions with coworkers and based on

ongoing communications with Mr. Grippen about

The evidence does not support a conclusion that Mr. Grippen has failed to return

need to feel safe from retaliation.

(b) (6)

to work in retaliation for making protected disclosures.

13

Restriction on

(b) (6)

Interacting with VA Employees and Patients

(b)

(6)

(b) 6
(b)
6

believes

(b) 6
(b)
6

has been instructed to not talk to VA employees and patients

in retaliation for making statements to the media or for reporting inappropriate accesses

to

medical records.

As discussed above, Mr. Grippen testified that he had received multiple complaints that

(b)

(6)

was interacting with co-workers, some of whom were the same individuals

(b) (6)

. (Grippen,

who had expressed concerns to Mr. Grippen about working with

p. 47, L1-15) Sometime thereafter, in April 2015, Mr. Grippen became aware that

(b) (6)

attended an evening Narcotics Anonymous meeting on campus to present

a chip to a Veteran who completed the program. After Mr. Grippen became aware of

(b)

(6)

appearance on PVAHCS campus at the NA meeting, Mr. Grippen issued

(b) (6)

(b) 6
(b)
6

he could not conduct business

was instructed not to communicate

a memo dated April 20, 2015, instructing

with any employee, support group or patients.

with employees via e-mail, text, phone or computer.

When

(b)
(b)

learned about this memorandum (prepared without legal review),

advised Mr. Grippen to reissue it to ensure

(b) (6)

(b) (6)

advised Mr. Grippen to reissue it to ensure (b) (6) (b) (6) (b) (6) clarification of

(b) (6)

clarification of

2015, still outlined restrictions for employees, stating:

rights. The resulting document (

(b) (6)

), dated April 24,

interaction with Veterans and

That

(b) 6
(b)
6

was not to conduct any VA business with any VA employee unless such

business was strictly related to his status, rights, or benefits as an employee or for receipt of health care or other benefits as a Veteran;

That

(b) 6
(b)
6

was not to conduct any business with or provide patient care or therapy

services to VA patients;

That

(b) 6
(b)
6

was not authorized to represent the VA unless directed to do so in

writing by Mr. Grippen; and

That

(b) 6
(b)
6

was allowed to return to the main facility or outpatient clinics as needed

for receiving patient care and was instructed to call the medical center for scheduling.

The document also stated it was not issued to curtail

rights as a citizen; it was issued to define the parameters to conduct VA business or represent the VA during the period of administrative absence.

(b) (6)

First Amendment

The evidence supports the finding that Mr. Grippen retaliated against

restricting (b) (6)

possible that Mr. Grippen’s sole motivation in restricting

with Veterans and employees was to safeguard employees and Veterans after he had

received multiple complaints about

Mr. Grippen was motivated, perhaps not consciously, by the sense that

was a troubled and troubling employee who needed reining in. Although we are unable to reach a definitive determination about whether Mr. Grippen’s motivation for the

(b) (6)

by

rights to communicate with Veterans and employees. It is

(b) (6)

(b) (6)

communication

behavior. It is equally plausible that

(b) (6)

14

communication restrictions was retaliatory, there is no clear and convincing evidence

that Mr. Grippen would have restricted

coworkers in the absence of

on

(b) (6)

access to Veterans and

protected disclosures. Thus the restrictions

(b) (6)

(b) (6)

ability to communicate could be construed as retaliatory.

Conclusions:

(b) (5) (b) (5) (b) (5) (b) (5)
(b)
(5)
(b)
(5)
(b)
(5)
(b)
(5)

15

(b) (5)

(b) (5) . l 21fully (b) (6) (b) (6) 16
(b) (5) . l 21fully (b) (6) (b) (6) 16
(b) (5) . l 21fully (b) (6) (b) (6) 16
(b) (5) . l 21fully (b) (6) (b) (6) 16
.
.
.

.

l

21fully

(b)

(6)

(b)

(6)

16