Medical Staff Dissent in VA Leads to Court

By on September 29, 2006 in Current Events with 0 Comments

The former Medical Director of the VA Nuclear Medicine Section in Columbia, Missouri, persuaded the federal appeals court that he was the subject of retaliation for protected whistleblowing. (Greenspan v. Department of Veterans Affairs, C.A.F.C. No. 05-3302 (precedent), 9/8/06) The facts summarized below are from the court’s opinion.

The medical staff at the Truman Hospital elected Greenspan to serve as its representative to hospital management. The medical staff voted “no confidence” in the leadership of the Chief Executive Officer (CEO) of Veterans Integrated Service Network 15, which is headquartered in Kansas City. A few months later and after being informed of the vote of no confidence, the CEO visited the Truman Hospital for the first time in order to hear the concerns and talk about future strategic directions. (p. 2)

Greenspan made extensive remarks at this meeting concerning the CEO’s leadership. (The remarks are quoted in full in the court’s opinion at pp. 3-5) The meeting ended when the CEO walked out. The meeting minutes signed by the hospital Chief of Staff characterized Greenspan’s remarks as a “personal attack upon the network management present, and accused the Chief Executive Officer of engaging in illegal activities and unethical practices,…” and called Greenspan’s remarks “grossly inappropriate.” (p. 5) Greenspan’s take on the meeting was set forth in his own statement added to these minutes, indicating that the CEO “lost her composure, essentially threatened our entire hospital, and stormed out of the meeting.” (p. 6)

The upshot was a proposal to suspend Greenspan that eventually led to the decision to formally reprimand him for statements presented in “a derogatory, inflammatory and inappropriate manner.” (p. 7) Meanwhile, Greenspan received his performance evaluation from his supervisor which rated him high satisfactory in all elements. But the reviewing official reduced the rating for “personal qualities” to satisfactory, although the overall rating remained high satisfactory.

Greenspan went to the Merit Systems Protection Board claiming that the reprimand and lowering of his rating in one category were in retaliation for protected whistleblowing. The administrative judge, following a hearing, found that the agency would have taken the same actions even if Greenspan’s statements were not protected. The AJ, supported by the full Board, dismissed Greenspan’s appeal. (p. 9)

The two of the three judge appeals court panel reviewing the case begged to differ. The 2-member majority noted that the agency did not dispute that the actions taken against Greenspan were in retaliation for his statements at the staff meeting. But the agency argued that he was disciplined for the nature of the comments (derogatory, inappropriate, and disrespectful), not for the content of his words. The majority was not persuaded there was a distinction: “When a disclosure is of protected subject matter, it is more likely than not to be critical of management, perhaps highly critical. The WPA protects those employees who are willing to speak out on subjects that could incur retaliation if unshielded. We have not been shown substantial evidence in support of the agency’s burden to establish by clear and convincing evidence that it would have taken these disciplinary actions absent the protected disclosures.” (p. 14)

The dissenting judge disagreed with this logic. He pointed out that “Everyone at the meeting, including Dr. Greenspan himself, considered his personal attacks very inappropriate. Specifically, following the meeting, Dr. Greenspan sent Ms. Crosetti an apology, admitting that some of his comments were ‘inappropriate,’ ‘disruptive,’ and ‘personal in nature.’” (Dissenting Opinion, p. 1)

© 2016 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written consent from Susan McGuire Smith.

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.