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Hearing alleges ‘upward bullying’

Van Zandt leader testifies about alleged harassment by whistleblower

On the third day of a hearing at Van Zandt VA Medical Center on Wednesday on allegations of whistleblower retaliation, a hospital leader testified about “upward bullying” by the whistleblower.

Gina Homan, acting chief of Physical Medicine and Rehabilitation Services for three months in 2015, said administrative officer Jay DeNofrio habitually and willfully twisted and misconstrued her directives — especially her attempts to control overtime, which led her to complain to her superiors about “passive aggressive behavior,” spin, fabrication and attempts to undermine.

Homan’s allegations at the hearing of the Merit System Protection Board — a quasi-judicial body that safeguards the principles of fairness in the federal workplace — are a turnabout for DeNofrio, whose troubles allegedly began after he reported that Homan’s predecessor, Dr. Frederick Struthers, was showing signs of dementia impairment that endangered patients.

Those reports about Struthers, along with two other whistleblower actions, led to a hospital leadership conspiracy to portray DeNofrio as mentally ill, to ostracize him, strip him of duties and deny him warranted promotions, according to DeNofrio, whose case is being heard via teleconference from Philadelphia by Judge Mark Syska.

The VA has been fighting back by trying to show that DeNofrio is obsessively confrontational, over-sensitive, easily agitated, disruptive, even verging on paranoid, and to show that what has happened would have happened regardless of his whistleblower status.

There are a few more witnesses to testify in the case, but those witnesses may do so over the telephone, and the dates for their testimony have not been set.

A ruling in the case could take two months, because the record isn’t complete, because there has been a lot of testimony already and because the case is complex, said VA lawyer Marcus Graham.

DeNofrio is asking for monetary damages, in an amount not yet specified, and relief from the still-ongoing, though shrinking, workplace hostility, said his lawyer Steve Wicks after the hearing session.

Despite the testimony, a settlement would be welcome, although efforts to encourage one have failed so far, the judge said Wednesday.

According to Homan, trouble with DeNofrio began on her third day as acting head of PMRS, when DeNofrio chose to interpret her order that all overtime would need to be approved as a blanket ban on overtime for him.

She tried to correct his misinterpretation, and seemed to succeed, time and again, but DeNofrio would revert to misunderstanding, she told the judge.

DeNofrio and whistleblower ally Tim Skarada, a supervisor in the department, would “make stories up,” “manipulate” the truth and generally be obstructionist, Homan said.

DeNofrio and Skarada were “sharks,” one VA employee told Homan, according to statements discussed during Homan’s time as a witness Wednesday.

The pair were doing to Homan what they’d done to Struthers, another employee told Homan, according to Wednesday’s discussion.

Asked whether she had been aware before coming to PMRS of DeNofrio’s status as a whistleblower subject to the Whistleblower Protection Act, Homan was a trifle ambiguous.

But she “absolutely” denied that she treated him differently because he had reported VA problems.

Dr. Christopher Watson, who became DeNofrio’s boss in 2016, likewise wanted to control overtime in the department, but with a more liberal approach.

“I said if work can be completed during (regular) hours, I would prefer it,” Watson said.

His experience with DeNofrio was apparently not as fraught.

The judge asked whether DeNofrio tried to obstruct Watson’s efforts or to undermine his authority.

Watson hesitated, tilted his head, swallowed, and then said, “No, I can’t say he was trying to obstruct me or undermine me — not that I was aware of.”

Did Watson evaluate DeNofrio’s performance?

Yes, and the rating was “outstanding.”

At that, DeNofrio, sitting several feet away, smiled.

Like Homan, nurse practitioner Theadora Krause portrayed DeNofrio as a sower of discord.

“I asked why he consistently created chaos, rather than come to conclusions, so we can solve a simple problem,” said Krause, a member of the PMRS polytrauma team — recalling a meeting to discuss problems with scheduling related to whistleblower reports by DeNofrio about serious and multiple failures to follow up on at-risk patients.

Krause wanted secretaries who traditionally handled scheduling to continue doing so, while DeNofrio wanted social workers to take over those duties. At Krause’s question, DeNofrio became agitated, invoked his right to union representation and walked out, inviting the secretaries to go with him — an invitation they declined, Krause said.

When challenged, DeNofrio tended to “disengage and disrupt,” rather than working toward a positive outcome, Krause said.

No promotions

Under questioning by Graham, VA witnesses both Tuesday and Wednesday provided innocent explanations for DeNofrio’s failure to win promotions he sought after his whistleblowing began.

According to retired Van Zandt Director William Mills, who testified by teleconference from Pittsburgh, the VA didn’t upgrade DeNofrio’s status from Level 9 to Level 11 on the federal pay scale because administrative officers at hospitals as small as Van Zandt aren’t generally Level 11.

Moreover, the list of duties DeNofrio presented in his petition for that upgrade weren’t entirely accurate, Mills said.

DeNofrio has alleged that his evaluation for the upgrade was “sabotaged.”

In the case of DeNofrio’s application for a privacy officer post, Mills chose another candidate because two out of three members of an interview panel scored the other candidate higher, even though DeNofrio’s total score was slightly better, Mills said.

DeNofrio failed to win promotion twice to contracting officer positions because other candidates for those jobs were better qualified, according to Chief of Logistics Daniel Shea, who testified Tuesday.

In one of those cases, DeNofrio inflated his experience, claiming to have done things related to the activation of a new building for his department that were actually done by his own staff, Shea said.

“I found that to be troubling,” Shea said.

In the other case, his department used an algorithmic model devised by Shea to identify the candidate with the best qualifications, minimizing subjectivity, he said.

The model carried five ratings categories, and DeNofrio ended up in the lowest, labeled “unsatisfactory,” Shea said.

That ranking had nothing to do with DeNofrio’s whistleblower status, Shea said.

Shea might have been totally disinterested, because of antagonistic elements in their relationship, Wicks suggested by followup questioning.

One of DeNofrio’s whistleblower reports cited a contract for audiological services that DeNofrio alleged were vastly too high, and Shea’s bailiwick in the organization is contracts, Wicks pointed out.

The audiological contract, which allegedly called for payments of $250,000 a year for work that a full-time audiologist could have done for $70,000, may not have been structured in the “greatest way,” according to Shea. But it wasn’t as bad as DeNofrio indicated, Shea said. “(DeNofrio said) the sky was falling. We looked. The sky was not falling,” Shea said.

Shea had also filed a privacy violation complaint against DeNofrio, based on a statement that DeNofrio had made about what Shea considered a personal, confidential matter, and Shea had accused DeNofrio of defaming him with information provided for an online article that spoke of Shea’s service as an associate director at Van Zandt and two other VA hospitals, according to testimony.

The privacy complaint proved unfounded, and DeNofrio hadn’t actually provided any information for the article, according to testimony.

Under questioning by Graham, Mills gave an innocent explanation for the loss of DeNofrio’s position on the hospital’s Leadership Council — which was one of eight committee assignments DeNofrio lost, stripping him of all committee responsibilities, according to testimony.

Mills ended the attendance at Leadership Council meetings for all administrative officers, because he wanted those meetings to include only voting members — mainly department heads, Mills said.

Protected information

According to Wicks, the linchpin of the conspiracy to neutralize DeNofrio was the attempt to create the impression of a mental health deficit.

That attempt hinged on a regular checkup in 2015 by VA primary care physician Raju Katari, who after the checkup activated a diagnosis of cognitive disorder initially created in 2010, by Dr. Wayne D’Agaro, according to Wicks.

The 2010 diagnosis was made due to side effects of a medication that DeNofrio subsequently quit taking, after which the problem disappeared, DeNofrio has said.

Katari testified that he had merely “imported” the 2010 diagnosis to ensure that future providers would be aware of it, but Wicks sees the action as calculated — especially given a blizzard of sharing and what he believes was improper access by many VA employees of DeNofrio’s protected medical information.

That dissemination of the cognitive disorder diagnosis was designed to ruin his reputation while shoring up the hospital’s, according to Wicks.

Testimony from a VA employee Wednesday disclosed no improper access, based on matching access times with occasions when access was needed — but the audit seems to have been limited in scope, based on the testimony.

The conspiracy became especially clear after the VA resisted correcting the diagnosis in 2015, Wicks said.

D’Agaro testified Wednesday that he deactivated the diagnosis late that year — although he didn’t remove it altogether as requested, saying it should remain available to future practitioners, as the disorder could recur.

Had Katari’s action been done with the medical record of any other veteran — and not a whistleblower the VA was looking to discredit — those responsible would have fallen all over themselves to remove the error, for fear of legal trouble, Wicks said.

The accusation that leadership has conspired to discredit DeNofrio’s competence puzzles the judge, given that his evaluations throughout the ordeal have continued to generate “outstanding” ratings.

“It’s hard for them to say that (all the criticisms) and claim you are outstanding at the same time,” the judge said.

“Much of what has happened over the past four years has not made sense,” DeNofrio replied. “I know what happened, but I don’t fully understand why.”

Mirror Staff Writer William Kibler is at 949-7038.

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