shaw bransford & roth case law update

Army Settles Whistleblower Reprisal Case after OSC Investigation

After a U.S. Office of Special Counsel (OSC) investigation, the Army recently settled a whistleblower retaliation claim filed by an Army civilian infection control analyst at Womack Army Medical Center in Fort Bragg, North Carolina.

In January 2014, an Army civilian infection control analyst at Womack Army Medical Center in Fort Bragg contacted the Joint Commission, an independent and not-for-profit organization that accredits and certifies health care organizations and programs in the United States, and informed the Commission about certain concerns she had with infection control issues at Womack after the hospital did not act on a report that identified several failures which represented an “immediate threat to life.” The Commission decided to investigate, but prior to the Commission’s arrival, the employee’s supervisors informed her that she would not be permitted to speak with the Commission during the course of the investigation.

The employee was also disallowed from attending future Infection Control Section meetings and was held out of remedial measures undertaken by Womack employees after the Commission determined that the hospital was not following required medical protocols with regard to infection control. The Army began an internal investigation in response to the Commission’s findings, and the employee provided information concerning infection control and her treatment after her report to the Commission to the investigators. Hospital operations were shut down for a week after the Army investigation concluded, and senior leadership were relieved of command while other supervisors were disciplined. The employee’s second line supervisor was reprimanded. However, the employee’s first line supervisor thereafter reduced the employee’s work hours by half against the employee’s wishes.

The employee, in May 2014, provided additional information to the Commission, as well as to the Army Surgeon General consultant. She was then charged with being absent without leave because, according to the Army, she had not requested leave for the hours her supervisor had removed from her schedule.

On July 14, 2014, the employee was called to the command suite and met with a number of officers, including a Brigadier General, who handed her a memorandum of concern that claimed she had failed to assist her coworkers. When the employee attempted to explain to the General that the accusations were a result of retaliation, the employee’s supervisor responded by issuing her a reprimand for her conduct during the meeting with the General, and subsequently removing her from all infection control duties, assigning her to merely administrative tasks.

Three months later, the Army issued a proposed removal to the employee, alleging that she had accessed a patient’s medical information without a valid work reason. The Office of Special Counsel’s (“OSC”) Complaints Examining Unit investigated the removal and found that there was no factual basis for the proposal, stating in a release that “[the employee] had valid work reasons for viewing the information, there had been no investigation into the incident, and all of the parties identified as complaining about [the employee] denied that they had” complained.

In September 2015, after OSC’s finding that the proposed removal was not based in fact, the Army settled the complaint of whistleblower reprisal the employee filed with OSC. According to Special Counsel Carolyn Lerner, “[t]he Army should have focused on correcting the problems she identified, rather than retaliating against her. However, in the end, the Army did the right thing by settling her claim.”

Read the full OSC press release.

This case law update was written by Conor D. Dirks, associate attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.

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