Judge rejects claims by VA official

Judge says DeNofrio failed to show leaders created hostile work environment, derailed his hospital career

A Van Zandt VA Medical Center whistleblower will get no relief from a federal agency on his claims that hospital management retaliated against him for reporting that he believed a hospital doctor was impaired with dementia.

Jay DeNofrio, administrative officer with Physical Medicine and Rehabilitation Services, made a decent initial case about the impairment, which later tests failed to confirm, but failed to show that hospital leaders created a hostile work environment or derailed his career to get back at him, according to a recent ruling by Judge Mark Syska of the Merit System Protection Board, a quasi-judicial agency charged with safeguarding the merit-based principles of federal employment.

Some hospital leaders were angry with DeNofrio because of his disclosures about physiatrist Frederick Struthers, but they continued to give him good marks, the judge pointed out.

“(T)he case as a whole is counter-intuitively postured — we have a whistleblower claiming serious retaliation by the agency, but the whistleblower always receives outstanding reviews and has never been disciplined,” the judge wrote in a 47-page “initial decision.”

DeNofrio failed to prove that a variety of alleged slights created a hostile work environment and in some cases “(he) appears to have manufactured or embellished some of his claims, made statements of dubious veracity and drawn completely unreasonable conclusions about some of the agency actions,” the judge wrote.

Ironically, DeNofrio’s own aggressive behavior seems to have created a hostile work environment for other employees, based on testimony in the case, which was heard in Altoona in July and September, according to the judge.

He “cannot reasonably credit” DeNofrio’s claims that “from end to end and top to bottom” the hospital was “darkly conspiring to ‘get'” DeNofrio, the judge wrote.

“There is no evidence of any such concerted action against the applicant,” the judge wrote.

Actually, given that there was a finding that DeNofrio’s actions included “upward bullying, harassment, obstructionist behavior (and) using questionable complaints as leverage” directed toward managers and other employees with no disciplinary action in response, it seems DeNofrio’s status as a whistleblower “may have acted as a shield, rather than, as he suggests, a ‘target on his back,'” the judge wrote.

DeNofrio plans to contest the decision.

“I obviously disagree,” he wrote Wednesday in an email. “I will move forward with an appeal to the U.S. Federal Court.”

DeNofrio alleged that hospital management denied him job opportunities and overtime, took away committee appointments unjustly, imposed training requirements to humiliate him, dredged up an old, unfavorable but no longer valid diagnosis and improperly accessed his medical records, all in retaliation for the whistleblowing.

One-by-one, the judge rebutted those contentions, saying that testimony showed the hospital was justified in hiring his rivals for the job opportunities; that DeNofrio was never denied overtime, provided he get prior approval; that he wasn’t singled out individually in losing the committee assignments, which went away for valid reasons, or for the training; that the unfavorable diagnosis occurred because of an electronic glitch and was subsequently corrected; and that the seemingly improper access to medical records resulted from DeNofrio’s own records requests, along with the idiosyncrasies of the VA’s outdated data system.

Mirror Staff Writer William Kibler is at 949-7038.

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