In 2015, John Kilby was thriving as an experienced nurse specializing in caring for mentally ill patients at the Roseburg Veterans Affairs Medical Center.
Two years later he had been fired from his job after developing a depressive form of bipolar disorder and post-traumatic stress disorder.
The VA attributed his firing to what it said were unexcused absences. In the lingo of the VA, he was accused of being absent without leave, or AWOL. But Kilby said he took leave guaranteed to him under federal law and approved by a VA psychiatrist. He said it’s retaliation for whistle-blowing that led both to his mental illness and his firing.
Kilby said after he brought up safety concerns about a new building where mentally ill patients were housed, the mental health nurse manager who was his supervisor bullied him. At first, he said, he didn’t know why. He thought maybe it was a gender thing. Later he came to the conclusion that he was targeted for retaliation because he was a whistle-blower.
When the VA Office of Accountability and Whistleblower Protection and the Office of Medical Inspector investigated the Roseburg VA last year, both agencies found significant problems with the mental health nurse manager and the mental health chief at the time. Both were removed from their posts following the investigation.
But the OAWP found that Kilby’s firing was due to absenteeism, and not to retaliation.
That didn’t sit well with Kilby, who recently received a copy of the OAWP investigator’s executive summary of findings from the investigation. It’s been more than a year, a year in which Kilby said he has remained unemployed and has been working on his own healing. But he said finally receiving the executive summary, in response to a Freedom of Information Act request, brought it all back.
Shortly after patients and staff moved into the bright and shiny new Acute Psychiatry Unit building in April 2016, Kilby noticed some issues he said compromised patient safety. It started on day one, when all the lights suddenly turned off in the evening, as though it were a daytime-only facility. This was a 24-7 unit with inpatient care for people suffering from severe mental illnesses, and Kilby was on the graveyard shift.
They’d soon learn that the lights in patient rooms could only be turned back on at the building’s central nurse’s station, not in the rooms, and that the bathroom lights didn’t work at all. Worse, they discovered that in any room where a patient used medical equipment such as a CPAP machine for sleep apnea, if the lights went off, so did the machine. In those cases, they were having to turn the lights on at the nurse’s station and then leave them on all night. The patients were sleeping with towels over their heads to block out the light while they used the machines that ensured they kept breathing at night. Sleep disruptions can make mental illness worse.
Kilby became increasingly concerned about the impact on the patients as the problems dragged on for weeks, then months. On May 31, 2016, he sent out an email to fellow staff members about the lights, which had still not been fixed. It had been two months. He called it lunacy, and neglect.
“Seriously, WHAT ARE THEY DOING? There is absolutely NO EXCUSE WHATSOEVER for having a patient WHOSE SLEEP IS ALREADY MEDICALLY COMPROMISED BEING FORCED TO SLEEP IN A FULLY LIT ROOM,” he wrote. He framed it as a patient safety issue, but management seems to have begun framing the issue very differently.
A response the same day from the mental health nurse manager seemed to take Kilby to task rather than acknowledge his efforts to improve patient safety. It began, “I’m sorry to hear you are so unhappy right now.”
She went on to say the VA was working on it, but then pushed Kilby to route complaints through her first — something the OAWP report states is not a requirement for whistle-blowing on safety issues.
“Sometimes these things take time, and it requires patience on our part to stand behind and support those who lead,” she wrote.
They did take time. According to the Inspector General’s report, the lighting problem was not fixed until August 2016.
Six days after he had sent the email, on June 6, Kilby had a verbal altercation with the mental health nurse manager. During that argument, Kilby said the nurse manager yelled so much that one of the staff members asked her to stop because she was upsetting the psychiatric patients.
“It was like I was a dirty dog on her white carpet, that’s how I felt,” Kilby said.
Following the altercation, the nurse manager reported Kilby to the VA police.
Kilby subsequently filed a complaint with the Equal Employment Opportunity Commission. The EEOC questioned about a dozen of Kilby’s coworkers, most of whom backed Kilby’s version of events. Many said they thought he was targeted for bringing up safety complaints.
One of them also testified that she had received an email that was sent from the nurse manager to multiple employees asking them to make complaints about Kilby.
Things went from bad to worse. Near the end of the year, Kilby was accused of patient abuse, for allegedly yelling at a patient and putting him in a seclusion room. Kilby said he never yelled, but spoke firmly to a patient who was delusional and convinced him to go into an unlocked quiet room so he could calm down and avoid upsetting other patients.
Following that incident, Kilby was removed from his nursing duties and assigned to move furniture. He hasn’t worked as a nurse since.
After he was pulled off nursing, Kilby had a breakdown. He said he had never been mentally ill before, but at that time he was diagnosed with post-traumatic stress disorder and bipolar disorder, and began having a lot of absences. He showed The News-Review a copy of a note from his psychiatrist explaining that he would need time off. He also said his absences were covered under the Family and Medical Leave Act. Apparently the VA disagreed. He was reprimanded, then suspended, then fired for his absences.
The nurse manager he fought with, the mental health chief who reassigned him to move furniture, even the VA director who ultimately fired him are all gone, removed following the investigations performed by the OAWP and the OMI. The OAWP report noted staff members described the mental health nurse manager as yelling, having outbursts, being a bully. But it found Kilby was dismissed for absenteeism, not retaliation.
“I guess the reason I’m not working for the VA is I refuse to be complicit with harm. I cannot,” he said.
On Friday, Roseburg VA spokeswoman Traci Palmer issued a statement that didn’t directly address Kilby’s situation, but did say that the VA has made clear it will hold employees accountable if they don’t live up to the high standards taxpayers expect from the VA.
“We make no apology for doing just that,” the statement said.
An investigator from the Office of Accountability and Whistleblower Protection concluded that there was not rampant retaliation against whistle-blowers at the Roseburg Veterans Affairs Medical Center.
The OAWP investigator had joined investigators from the Office of Medical Inspector who visited the Roseburg VA in October 2017. An executive summary of the OAWP investigator’s report, dated March 9, 2018, was first received by The News-Review last week, more than a year after it was written. It had all names redacted, including that of the investigator writing the report. However, in most cases it was clear what the missing names were.
The report suggested widespread complaints of retaliation and harassment are largely based on employees’ misconceptions about what those terms mean.
“In fact, many who spoke to us who received any type of correction or negative feedback or less than outstanding performance appraisal believed it was harassment,” the investigator wrote. “We heard reports of a coworker not having lunch with an employee as evidence of retaliation.”
While it didn’t find system-wide retaliation, the report doesn’t suggest the VA was without problems.
Still, its conclusions appear to be milder than those of investigators from the Office of Medical Inspector. Both offices are subdivisions of the national Department of Veterans Affairs.
The OMI never released to the public its report on its investigation. However, the OMI did release a two-page summary last year which specifically called for three top managers to be removed from supervisory positions. Those managers were subsequently identified as former surgery chief Dinesh Ranjan, former mental health chief Paul Beiring and former education chief William Stellar. All were removed from their positions. Then-director Doug Paxton also stepped down shortly after the investigation.
According to the OAWP investigator, the VA received complaints that Paxton cared more about the VA looking good on paper than he did about providing good care to veterans. The investigator said there was no evidence that the VA manipulated statistics used to determine whether it merited a one-star ranking, a five-star ranking or something in between. Rather, the investigator found Paxton’s goal was to improve the numbers by improving patient care.
However, the investigator did find evidence to back another complaint about Paxton, that he was rude to staff members and inclined to take the word of managers rather than listening directly to the employees under them.
The summary also discusses in some detail a conflict between Eugene surgeon Scott Russi and Ranjan. Russi was fired after working just a few months at the Roseburg VA’s Eugene clinic in 2017.
Russi is a retired Air Force colonel who was trauma medical director at Sacred Heart Medical Center before joining the VA. He said he had expressed concerns about Ranjan’s performance prior to his firing, and had also had a salary dispute after he did not receive the $385,000 salary he was initially promised.
On Friday, Russi told The News-Review the outcome of the OAWP investigation was predictable, because VA has an inability to present things in an honest manner.
“The statement that we don’t know what harassment is, is insulting,” he said.
Ranjan told the investigator that it was he who had found problems with the care Russi provided. Russi provided statements from surgeons outside of the Roseburg VA that supported his assertion that he followed the standard of care.
According to the OAWP investigator, the OMI investigators concurred with Ranjan’s assessment of Russi’s performance. But the investigator also said Russi’s firing was OK either way because while the salary dispute was ongoing Russi was a temporary part-time physician. That meant, according to the investigator, he didn’t have the rights of a regular employee. He could be fired for any reason and didn’t have the right to challenge it.
The investigator sidestepped retaliation complaints from other physicians involving Ranjan. In some cases, it said the cases had been settled. In others, it noted claims were being handled by other federal agencies.
Some federal agencies had already weighed in, and took a tougher line.
Ranjan had been accused of retaliating against other physicians for questioning his competence in performing colonoscopies. The Inspector General had found in 2017 that Ranjan had been using outdated colonoscopy practices that increased patient risk. The Office of Special Counsel had vindicated one of those surgeons, Philo Calhoun, saying he had been retaliated against as a whistle-blower. The OMI report had identified Ranjan as a part of an ongoing problem of senior leadership creating what it called an environment of intimidation. He was removed as chief of surgery and reassigned to a non-supervisory position in January 2018, and he retired in October.
Russi said because of that history, the OAWP shouldn’t have considered Ranjan an accurate source of information about other physicians on staff.
“The final result and the final finding is garbage because of the source of the information. The VA is going to be prejudicial toward receiving information from those people within leadership in the VA because they don’t want to find anything wrong,” Russi said.
The OAWP investigator did find, as did the OMI investigators, significant problems with management in the Acute Psychiatry Unit. It discussed reports that the former mental health nurse manager yelled at staff and told staff they would be reassigned to undesirable shifts or duties if they did not put up with her outbursts. Two staff members quit because of her behavior, the report said. It also said that Beiring, the mental health chief at the time, was told about the nurse manager’s misconduct but did not investigate it adequately.
In a particularly striking example, the report detailed an incident in which the mental health nurse manager, also referred to as the APU nurse manager, demanded that blood be drawn from a psychiatric patient who was refusing it, over the objection of the nurses.
“Essentially a group of nurses were opposed to drawing blood from a patient that was actively refusing consent. On the other side was the previously mentioned APU nurse manager ordering the nurses to draw the blood despite their professional objections,” the report said. Ultimately, it said, the nurses stood their ground and the nurse manager performed the blood draw herself. Afterward, the patient’s condition worsened.
Both the APU nurse manager and the mental health chief were removed from their posts following the investigations.
Another complaint in the investigation concerned managers’ apparent ignorance of the law requiring accommodation for disabled workers. A blind doctor was written up for her inability to complete physician notes on patient charts, a move that could ultimately have led to her being fired. Another case involved a social worker with a documented back condition who needed a larger vehicle in order to make visits to veterans in the community. Though the VA had plenty of vehicles that would have accommodated his problem, red tape unreasonably delayed his receiving a larger vehicle, the report found.
The report concluded management and human resources specialists seemed not to have basic knowledge of laws protecting disabled employees.
“The knowledge vacuum was profound, to include a lack of understanding of the basic tenets of the relevant statutes. It was not evident that managers understand they have an affirmative duty to effectively accommodate qualified employees with disabilities,” the investigator wrote.
A spokeswoman for the Roseburg VA, Traci Palmer, issued a written statement Friday which said that the current management of the VA has reviewed the full OMI and OAWP reports extensively.
“The report referenced was published more than a year ago and while the bulk of the allegations were not substantiated, where problems have been identified they have been addressed or are being addressed,” the statement said.
It also noted the VA has new leadership since Keith Allen was appointed director March 17 of this year.
“Since his arrival, Mr. Allen has made it clear his number one priority is to provide outstanding care to Veterans. Through transparency, open communication, and strategic thinking and planning, Mr. Allen is working to create a trusting environment for all stakeholders,” the statement said.