Judge says VA Montana retaliated against whistleblower

HELENA, Mont. – A senior U.S. Department of Veterans Affairs official in Montana harassed and retaliated against an employee in violation of the federal Whistleblower Protection Act because the worker filed a patient safety report over an operating room error, a judge ruled Friday.

Administrative Judge James Kasic ordered the VA to pay damages and offer former Associate Chief of Inpatient Care Dianne Scotten a job similar to what she held before she resigned in December 2014. Kasic’s ruling is an initial order that takes effect Nov. 4 if the VA does not request a review of the decision.

Her former boss, Associate Director of In-Patient Care Services Norlynn Nelson, denied she retaliated against Scotten for filing the report. Nelson faced no penalties in the case.

Scotten is now working for the Montana Department of Public Health and Human Services and does not want to return to the VA, said her attorney, Jill Gerdrum. But the judge’s ruling should give hope to other employees who want to speak out and lead to change within the Fort Harrison medical center, the attorney said.

“My client did this because she was brave and she was appalled by what she saw there, and she wanted it to be known,” Gerdrum said. “Employees are going to be less likely to retaliate now that attention has been brought to it.”

VA spokesman Mike Garcia did not return a call or email on Friday.

Scotten was in her position a little over a month when she filed a report to the VA’s Quality Management and Patient Safety division about a dispute within the operating room over whether a surgical towel count had been completed during an operation in April 2014.

Surgical towels are counted to ensure that none remain inside a patient during an operation. As a result of Scotten’s report, an investigation was conducted, leading to changes in operating room procedures and the use of a new type of surgical towel that can be seen by X-ray.

Nelson and several of the nurse managers she supervised were upset that Scotten had filed the report, and said they did not view the miscount as a patient safety matter.

Scotten told the judge that after the report, Nelson became hostile toward her, undermined her authority in front of subordinates, took duties away from her and tried to demote her. Scotten said the workplace became so hostile that she was forced to resign that December.

Nelson and other VA leaders told the judge that the change in Scotten’s duties was unrelated.

Kasic, who heard the case for the U.S. Merit Systems Protection Board, said the VA’s argument was unpersuasive.

Scotten’s report was a protected disclosure for which she was subjected to harassing working conditions and a significant change in her duties, Kasic wrote. Other VA employees testified in support of Scotten that Nelson had retaliated against other workers and that workers were afraid to make reports for fear of retribution.

“I find (Scotten) has presented persuasive evidence of motive to retaliate on the part of agency officials involved in the allegedly retaliatory personnel actions,” Kasic wrote.