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OpEdNews Op Eds    H3'ed 3/19/09

Retaliation Against Whistle Blowers at the VA

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Message Tina Testa

This story is about a 22 year civil service employee and military veteran. It is written by a tax payer, a citizen and a spouse who demands action from the Committee of Veterans Affairs. The committee has the oversight authority to investigate and require the Secretary of the Veterans Administration reports to congress of gross mismanagement, fraud waste and abuse of tax payers monies paid by every and each taxpayer.

 The Veterans Affairs in Bay Pines, Florida has been attempting to take action against whistle blowers who brought evidences that they reasonably believed to be violation of law, regulation and rule, imminent danger to public health and safety. Due to management's negligent conduct in failing to prevent violence in the work place, the Veterans affairs has exposed me as a taxpayer to have my tax dollars paid to employees that are seeking civil actions against the Veterans Affairs for retaliation, violation of civil rights, and for injuries sustained in a January 27th, 2009 physical assault by a VA Police Supervisor on a subordinate police officer and now they are going to convene an administrative investigation against the victim of the assault for employee misconduct. This medical facility has spent more taxpayers money protecting this supervisor and trying to fire anyone who files any complaints against him. I guess he was not kidding when he told employees, whoever tries to come after me will pay a high personal price and suffer severe litigation. I did not know the government protects people at such an expense to the tax payers.

The decisions of this hospitals management are also exposing the U.S. Government and tax payers to another civil rights law suit by management blocking the victim of the assault from having the person arrested, by not allowing the victim due process guaranteed by the constitution. These settlements can cause me, the tax payer, hundreds of  thousands to millions of dollars which are preventable and the committee should open an inquiry to holding management responsible for mismanagement of the agency and abusing their veteran employees.

On February 24th, 2009 the management of the Bay Pine Medical Center and for testifying against the accused supervisor. decided to retaliate against employees and begin to terminate 3 Sargents and 1 officer for reporting acts covered under the NO FEAR ACT of 2002 disclosure

The is an honorable man who teaches his son about the constitution and helping others. The  officer was attempting to protect the employees from getting hurt. Due to management's lack of responsibility and inaction an employee has now sustained an injured disk in the spinal area of his back.

The officers had informed managment for years abut SGT. Kempinski and how he has been conducting himself over the years. Trying to physically and verbally intimidate the other officers, which has now been esculated by him physically attacking an officer. All through  the year of 2008, employees were reporting  incidents with Kempinski.  Employees reportedly to the new chief, the asst. chief, the union, the IG and Associate Director Green and Associate Director Brown. The asst. chief reportedly told one supervisor that he and the chief were putting together a system to handle those who went outside to D.C. and that the supervisors needed to look the other way (this was in reference to the police supervisor who assaulted another police officer.

The question to be asked should be, do you think it is productive for the running of the government to fire people who were trying to get someone in management to protect them from someone who has a history of violence at the job and carries a gun? Do you think it is right that employees had to come to work and when they were around Sgt. Kempinski they had to be afraid of what they said or did because they were afraid that this guy may go off and have to defend himself? That they had to try to avoid being in the area when this guy is around. What is the Violence in the work place policy at the VA? Why did management let it get this far? Why would they give this guy his gun back when he was reported to have numerous incidents leading up to him getting it back, even when the chief and asst. chief were warned by the training staff, they felt it was okay to give a gun back to someone who could not contol his temper.

The charges against the officer manifest a patent retaliation for protected whistleblower activity, as provided in the CSRA, 5 U.S.C. 2302(b)(8) and (b)(9),  and the Master VA Agreement at Art. 16, Section 9, as reinforced by the No Fear Act and 5 C.F.R. 724 and the accompanying VA Directive.  Apart from protection against retaliation. these provisions provide for making whole remedies and consequential damages, and under 5 U.S.C. 1215, disciplinary actions are appropriate against those who retaliate for protected whistleblower activities and under the False Claims Act additional damages are also available.

The Officer proceeded through appropriate established processes to VA Internal Affairs, as advised by the OIG and his supervisors to report his reasonable belief of an abuse of authority, mismanagement and/or danger to the public's health or safety, through a pattern of activity. Most of his claims were indeed substantiated by the Internal Affairs established Administrative Investigative Board [AIB], but in their Report they erroneously and vindictively concluded that "appropriate disciplinary action should be taken against the Officer given the number and type of allegations that were not substantiated."

In March the officer and his Union Council Requested for Extension of Time to prepare and submit a Reply, in large part to obtain necessary data to formulate an effective and competent Reply. Most parts of the Investigative Report were not provided to the Officer, nor were most of the witness statements, among many other documents identified as needed to formulate a meaningful Reply.

Nevertheless, a letter dated Friday, March 6, by Ms. Wax, a Human Resources Officer, apparently with managements approval, denied the Request for Extension. As provided in the officers reply letter to Ms. Wax, later on Friday, March 5, the lack of cooperation and appreciation of the need for such extension is extremely troubling. She cited the Master Agreement and past practice and  without specification, as  to the reasons for denying the Extension. As indicated, neither of those sources justified that denial. The Master Agreement provides that extensions for replying to proposed adverse actions may be granted when good cause is shown. The officer provided in ample detail, the cause for this Extension in terms of needing to review  of all the material in the possession of the VA.. The officers also disclosed the need of discussing and analyzing that material, engaging in research and discussions, obtaining and reviewing the essential information requested. Moreover, the officer relayed that the logistics of his counsel in another state dictated additional time to discuss and prepare these matters.

Regarding the past practice, the local AFGE union president has never seen a denial since she has been President. The recollection is that no request for extension to reply to a proposed adverse action has ever been denied; and at least one case in the last year involving another Nurse where an extension was granted, as well as other cases; and then the officer requested Ms. Wax furnish past practices to the contrary, which she apparently has declined to do.

In any event, past practice is not the issue here, but whether adequate good cause existed for granting an extension based on the circumstances of this case. Her, and ultimately management's decision to unfairly deny the officers extension significantly impacted his ability to make a meaningful reply.The officer further explained the unreasonableness of affording a short and necessary Extension to reply by the fact that the VA did not issue a report for 3 months after the AIB obtained its statements, and then waited more than another 3 months in issuing this proposed removal. It should be noted it was also released after the officer reported that the management at the VA Bay Pines Police department was covering up an assault by a police supervisor on another police officer. It is also the management's decision to tell the victim that he could not go to the local police and  have that supervisor arrested. When this officer made another disclosure under the whistleblower act the punishment was raised to this level.

The VA's attempts to act in haste now and deny this officer access to necessary data severely prejudices his ability to formulate a meaningful Reply.

The story shows the most reprehensible and blatant form of retaliation for protected whistleblowing activity. The officer merely must possess a reasonable belief for the allegations relating to an abuse of authority, mismanagement and or danger to health or safety in order to obtain that protection.

The officer demonstraded that he had reasonable relief in many respects. The Investigative Report demonstrated improper actions by Sgt. Kempienski, including harassment, and intimidation, creating a hostile work environment, falsifying records and asking others to falsify, and failing to tell the truth during the AIB.

The officers entire presentation made under the whisltle blower protections, was made to draw a complete picture of the situation relating to Sgt. Kempienski, that impacted legitimacy and credibility of official investigations, whether he should properly be issued a weapon, privacy violations, and other concerns of misuse of authority and safety and security.  The officers underlying information regarding the perceived and possiblity of untruthful testimony in a previous civil rights case was based on the  testimony of Kempienski, and his deception and deceit in that  testimony were confirmed by other officers who were subjects of that investigation

The major question to be asked is this, if it was your daughter or son having to come to work everyday in this type of environment, what would you advise them to do? Would you tell her to do them to do their due diligence to protect people from getting hurt? Aren't all accidents 98% preventable?

This was all preventable way before this officer coming to Bay Pines. The outbreaks of lack of control of the supervisor's temper, the physical intimidation, the throwing of clipboards at officers in training, the verbal abuse of a 7 month pregnant employee, all reported, all known by the chief and asst. chief for years and they hid it and turned the other way and did nothing about it. What is more outrageous, is the VA just paid Sgt. Kempinski $1200.00 performance award for doing an outstanding job.

The taxpayers of this country, veterans of all wars,the ACLU and all other civil rights advocates should be banging at the door to stop this kind of action.

Less we forget the FBI whistle blower who disclosed management's actions of blocking her atempts to get a warrant on one of the terrorists laptop which had indicators that a plan to carry out the attacks of 9/11 were on that laptop. Maybe we forget that whistle blowers help the American people informed about the abuses of goverments management. We have men and women dying overseas everyday defending the constitution that this maangement is trampling on.
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Retaliation Against Whistle Blowers at the VA

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