Testimony in whistleblower case wraps up

Judge admits ruling ‘is going to be hard for me’

Near the end of a whistleblower-retaliation hearing Friday at Van Zandt VA Medical Center, things looked grim for plaintiff Tim Skarada.

Presiding by teleconference from Philadelphia, Judge Gregory Smith of the federal Merit System Protection Board said he was “having a really hard time figuring out what (Skarada was) complaining about.”

Skarada, who is seeking compensatory damages and an order to stop alleged retaliation for reporting that a Van Zandt doctor was impaired with dementia, still has his job, with no pay reduction, the judge pointed out.

Skarada and co-whistleblower Jay DeNofrio have charged that their protected disclosures resulted in them being barred from meetings and subjected to a hostile work environment, as evidenced by other workers refusing to sit near them.

“It sounds like someone wanted to try to stop you from going to meetings. God, I wish people would stop asking me to go to meetings,” the judge told Skarada.

Based on testimony from now-retired chief of staff Santha Kurian, two tests two years apart at two outside hospitals found no neurological impairment in Dr. Frederick Struthers, who was the subject of the disclosures, and a review of Struthers’ 400 patient charts showed no irregularities, the judge also pointed out.

“But you kept going after the guy,” the judge said. “I’d sit at a different table in the cafeteria, too.”

The judge’s dressing-down was “humiliating,” Skarada said later.

Kurian said that she noticed no decline in Struthers and said she wasn’t angry about the whistleblowers’ disclosures, never instructed other employees to ostracize them, didn’t try to shrink Skarada’s committee responsibilities or instruct other employees to file complaints or refuse to speak to Skarada.

The judge toyed out loud with the idea of refusing to allow Skarada’s lawyer, Steve Wicks, to call his final witness, retired Van Zandt Director William Mills, who had convened an administrative investigation board that found Skarada guilty of harassment, intimidation and privacy violations but which resulted in no punishment — a seemingly contradictory result that Wicks said shows the AIB was an instrument of retaliation.

The judge allowed Wicks to call Mills.

Under questioning by Wicks, Mills testified that he felt compelled to convene the AIB, because various employees — especially females — had been complaining to him of harassment by Skarada and DeNofrio, with some actually crying in his office.

He didn’t know the truth, and he needed the AIB to find it through testimony under oath, heard by a three-person board consisting of individuals who weren’t employees of the main hospital building, he said.

He consulted with the regional VA headquarters before setting the AIB, and once he set it up, he had virtually nothing to do with it, Mills said.

In her closing, VA attorney Angela Madtes reiterated the judge’s observation that Skarada still has his job — as well as a “sterling record” of outstanding performance.

“Things happened that he didn’t like,” Madtes said. “But that doesn’t mean they happened because of the whistleblowing.”

The AIB may not have been “technically perfect,” she said, referring to procedural issues pointed out by Wicks. But there’s no evidence of a correlation between the AIB and the Struthers disclosures, she said.

The plaintiff team claimed that retaliation has a “chilling effect” on employees coming forward to report problems, but the disclosures by Skarada and DeNofrio about Struthers continued after the alleged retaliation had begun, she said.

“Where’s the chilling effect?” she asked rhetorically.

In his closing, Wicks set aside the issue of whether Struthers was impaired, emphasizing that Skarada and DeNofrio believed they saw evidence of it and by law were thus required to report it.

But management’s response to those reports generated retaliation and an uncomfortable work environment that still exists, he said.

The defense needs to prove that the AIB would have occurred regardless of the Struthers disclosures — that “all this would not have happened anyway if Tim had kept his big mouth shut and minded his own business,” Wicks told the judge.

But there’s an AIB-Struthers connection, in that the three employees whose complaints the AIB investigated showed themselves to be hostile to Skarada for the disclosures or sympathetic to Struthers because of them, Wicks said.

The idea on which his client’s case rests, the protection of whistleblowers, is “a principle of the highest order,” Wicks told the judge.

“The key point is that my client can’t go into the facility without experiencing hostility,” he said, adding that he feels like a pariah. “(And) it’s because he did the right thing.”

After the summations, the judge said: “(Ruling on this case) is going to be hard for me. These are things I will have to wrestle with.”

Mirror Staff Writer William Kibler is at 949-7038.

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