U.S. OFFICE OF SPECIAL COUNSEL Memorandum US. Of?ce of Special Counsel Report of Prohibited Personnel Practice OSC File No. (Teresa Gilbert) OSC Investigator OSC Attorney June 8, 2017 This report represents the deliberative attorney work product of the US. Of?ce of Special Counsel (OSC) and is considered privileged and con?dential. Any release of information beyond persons speci?cally designated by OSC to have access to its contents is prohibited. All Freedom of Information Act inquiries regarding this report should be referred to Of?ce of General Counsel at 202?254-3600. Prohibited Personnel Practice Report OSC File No. Page 2 of 14 INTRODUCTION This report by the U. S. Of?ce of Special Counsel (OSC) contains the investigative ?ndings in OSC File Number MA- 14-3308, a complaint of prohibited personnel practices ?led by Teresa Gilbert against the S. Department of the Army Gilbert was a health technician 1n Infection Prevention and Control at the Womack Army dical enter (W MC). She alleged that the Army - principally through the I I I I I I and her ?rst- line supervisor - .. . . . . . .. - -. - retaliated agalnst her for making disclosures to management of?c1als the 01nt Commission, and the Of?ce of the Inspector General The evidence obtained in OSC investigation demonstrates that retaliated against Gilbert. From January to May 2014, Gilbert made numerous disclosures regarding WAMC failure to follow established infection control protocols and directives and lack of quali?cations to serve as .. . In response 01131}ng Gilbert? duties detailed her out of mfection control, placed her under investigation, and ultimately sought her removal. In September 2015, Gilbert settled her complaint for corrective action against the Army. re ort summarizes investigative ?ndings for potential disciplinary action against O.SC concludes that engaged in prohibited personnel practices in violation of 5 C. and by taking personnel actions against Gilbert in retaliation for her protected activity. OSC recommends that the Army take appropriate disciplinary action against as provided in 5 U. S. C. ?1215. STATEMENT OF FACTS A. Background WAMC is one of the Army?s largest military hOSpitals, providing medical services to more than 200,000 people at Ft. Bragg, NC. Ex. In 2008, WAMC hired Teresa Gilbert as a GS-8 health technician in Infection Prevention and Control. Ex. p. 2. At the time, Gilbert was board?certi?ed by both the American Society of Clinical Pathologists and the American Medical Technologists Organization. During her tenure at WAMC, she also became board-certi?ed as an Infection Preventionist by the Board of Infection Control and Epidemiology. Ex. In September 2013, WAMC commiss1oned a mock survey of health and safety practices from health care consulting ?rm - - - - in order to prepare the hospital for a May 2014 of?cial inspection by the Joint Ex. The Joint Commission 13 the nation?s oldest and largest accreditation entity for health care organizations, setting national standards and providing accreditation for health care institutions across the country. The Because of issues regarding etfectuation of the original settlement agreement, Gilbert entered into a ?nal settlement of her claim for corrective action in January 2017. Prohibited Personnel Practice Report OSC File No. MA-14-3308 Page 3 of 14 Department of Defense mandates that military hospitals, such as WAMC, meet or exceed the standards of the Joint Commission. Ex. On October 7, 2013, issued its survey results identifying serious infection control failures and ?nding that WAMC staff failed to follow infection-control policies and sterilization guidelines placing hospital patients at serious risk for infection. Ex. For example, found laryngOSCOpe blades out of their sterile packages, temperature logs that did not record the appropriate temperature for storing breast milk, ophthalmoscopes covered 1n dirt, dirty and unsterilized ophthalmic equipment, de?cient reporting of infection control data, and sterilization and safety Issues with urology equipment. Ex. pp. 20- 22 determined that these unsafe conditions resulted from poor hospital leadership, posed an immediate threat to life, and likely would justify the Joint Commission denial of preliminary accreditation. Ex. pp. 21 2-2. ?The ?ndings? .are extremely serious and put patients at risk Immediate correction is needed, ?the report stated. Ex. p. 22. Notwithstanding the alarming ?ndings of - WAMC leadership tookno effectlve action to correct the infectlon control fallures Ne1ther WAMC Commander - -.- n01. -- -- .. I tOOk the survey 331301.131); .. later did not ?have an appreciation for the signi?cance of the mock survey results,? Ex. 38 (12B), and - admitted that following the survey the ?hospital went around acting like it was business as usual. Ex 38 (14E), 5. The hospital continued to be in non-compliance with infection control policies and procedures throughout Fall 2013, thereby endangering all gatients at the facility. Ex. 59, p. 3. Though Gilbert repeated her concerns to both on several occasions, they dismissed her concerns and did nothing to address or correct the reported de?ciencies and violations Exanuary 4, 2014, WAMC ass1gned . . at WAMC 311d Tel-63a Gilbert, direct supervisor prior experience or training to serve as -, nor was ?beard- certi?ed 1n infection control, Ex. p. 7 ,as required by accreditation protocols. When was assigned, the plan apparently was that obtain the necessary training while serving in the position, id, but during the nine months served as -, I never didWorking Conditions After She . Challenges as 3hr a ti 0 an PrUVideS the .. Survey Results to the Joint Commission Shortly after appointment, Gilbert had several discussions with regarding the Infection and Control Unit most challengesShe told that the hospital continued to fail to address the serious lapses in infection control uncovered by the - survey in October 2013. Ex. 40, p. 4. She also on multiple occasions expressed concern regarding - 5 lack of experience in infection control and lack of tra1n1ng to serve as -of the unitWhen became ,Gilbert was the only person left 1n the unit Ex. p. Prohibited Personnel Practice Report OSC File No. MA-14-3308 Page 4 of 14 16. And although she had training in infection control and could identify the problems Gilbert had no authority as a GS-8 to solve them Gilbert believed the nature and extent of the infection control problems at WAMC required a '55? who was board- certi?ed and trained in infection control, knowledgeable about the issues, and capable of solving them. EX. 35, pp. 20- 21. The Army echoed these same concerns in a subsequent investigation at Womack. EX. pp. 8-9. Based on these concerns, Gilbert ?led a complaint with the Of?ce of Inspector General (01G) in January 2014, repeating her disclosures about the hospital 3 failure to follow proper sterilization processes and 5 lack of experience and training EX. 50; EX. 43 (A), p. 8. On January 14,2014, Gilbert disclosed the results of the 515395-5151: mock survey to the Joint Commission? 3 Of?ce of Quality Monitoring, and alerted them to her concern regarding lack of quali?cations to lead the unit. EX. Ex. 11. Gilbert told the Commission that WAMC had ignored the problems documented 1n ?s mock survey, and that Gilbert believed the hospital had placed its patients health and safety in serious danger through unnecessary exposure to infection and infectious diseases. Id. The Joint Commission responded to Gilbert the same day, assuring her that it would examine infection control practices and policies during the survey. Ex. After receiving Gilbert?s disclosures, the Joint Commission advanced its accreditation survey of WAMC by two months. EX. p. 5. On January 24, 2014, Gilbert told that she had disclosed the survey results to the Joint Commission EX26. Immediately after this, began excluding Gilbert from routine meetings, decmons and important projects in the unitlonger allowed Gilbert to attend the Department of Nursmg/Dally Nursing Report that convened to discuss the emergency room patient population and pending infection Issueslonger allowed her to attend the Commander 5 Morning Report or the Infection Control Representative Meetings. Id. also excluded Gilbert from the Functional Management Team (FMT) meetings that occurred to review the hospital? 3 compliance with standards and quali?cation for accreditation was later told detail in IC, - felt Gilbert could not be trusted because ?she sent the mock survey to joint commission and now they are after us. EX. 52, p. 26. . Excludes Gilbert From Joint Commission Activities and Imposes a Halwaay Schedule Following the Joint Commission?s Expedited Review The Joint Commission originally had scheduled its accreditation review of WAMC for May 2014. Based on Gilbert?s disclosures, however, the Joint Commission advanced the survey date by two months. On March 11, 2014, the Joint Commission notified WAMC that it would begin the accreditation survey in one week?s time, on March 18, 2014Prohibited Personnel Practice Report OSC File No. Page 5 of 14 On the ?rst day of the survey, .. wrote to the Northern Regional Medical Command (NRMC) that, ?[O]ne of our disgruntled staff [Gilbert] contacted the JC and told them that our IC lead is not quali?ed to be 111 that role Ex We? 11 see what the has to say about all this, however the acting IC nurse is and .13 doing an outstanding job.? 1d. On March 21, 2014, the Joint Commission ?nished its on?site survey and provided an out- brief to WAMC senior of?cials. Ex. The Joint Commission reported de?ciencies of such signi?cance that immediate changes at the hospital were required. Id. The Army Surgeon General intervened, and ordered WAMC 5 leadership to stand down. EX. p. 57. U. S. Army Medical Command (MEDCOM) placed elective surgeries at the hospital on hold for several days until protective procedures were established. Ex. 7, p. 4. As explained,? [the Joint Commission and WAMC leadership] were in communication with? .the Army Surgeon General. because they were discussing all the issues and trying to decide if they were going to shut down the Ex. p. 29. too continued fallout from the Joint Commission out~brief, testifying: Finally, the Joint Commission calls back, and they?re saying we have a serious concern that could potentially be in the threat of life category. . . . [T]he Joint Commission representative called and says . . . you?ve got some major issues with infection control. Your command is involved. Next thing I know is when I get back to work on Monday [March 24,2014] - is here, and everybody 15 here and it?s a full assault on Womack, and it?s just?you know it horri?c, and then, the nightmare began Ex. p. 18-19. Ultimately, four members of leadership, including . received a reprimand reprimands based on the Joint Commission?s ?ndings. Ex. for dereliction of duty: You had ?rst-hand knowledge that the WAMC infection control problem was not doing well and you did not establish an effective structure to monitor corrective actions following two mock surveys that highlighted problem areas. You failed to seek assistance from either the Northern Regional Medical Command (NRMC) or MEDCOM. Additionally, you declined offers of assistance from NRMC, erroneously claiming all was well with the infection control program. Ex. p. l. ?s disciplinary action faulted for failing to mitigate against the infection control problems despite I knowledge of them: With your over 20 years of service to Anny Medicine, you knew the importance of infection control and knew of issues with Prohibited Personnel Practice Report OSC File No. Page 6 of 14 infection control at Womack, yet your command failed to have a structure in place to mitigate the shortcomings revealed in two mock surveys leading up to the Joint Commission survey. As a result, I have lost all faith in your ability to lead. Ex. During and immediately following the Joint Commission survey, refused to allow Gilbert to join FMT and Joint Commission meetings although Gilbert was arguably the most knowledgeable person in the area of 1nfection control. Ex. Ex. p. 14. Gilbert complained about her exclusion to and other agency of?cials, arguing that her knowledge and experience would help the hospital address the Joint Commission 3 ?ndings. Ex. Ex. pp. 13?14; Ex. p. 5. But did not reverse I actions and no hospital o?icial intervened. EX. 2 Ex. (8B), Ex. pp. 1~2. Just two weeks after the Joint Commission ?nished its survey, "3 noti?ed Gilbert that . was restricting her to a half-day work schedule and would require her to take four hours of leave each day. Ex. Ex. Ex. 6. Gilbert protested the action unsuccessfully. Ex. Ex. 40, pp. 6-7; Ex. EX. pp. 23-47. D. Gilbert?s Additional Disclosures Result in an Escalating Series of Personnel Actions Ending in a Proposed Removal Gilbert continued to make disclosures regarding the ongoing de?ciencies 1n the infection control unit, in addition to which she added numerous concerns regarding retaliatory treatment On March 24, 2014, for example, Gilbert sent a series of emails to and other agency officials 111 which she described - - attempt to marginalize her by w1thhold1ng necessary information. Ex. 2 (B2), Ex. 38 (8B), (9A). Gilbert said that was abusing - authority, creating a hostile work environment, and creating an atmosphere of secrecy and exclusion. Id. Within four days, . sent an email to Gilbert and other IC staff ordering them not to communicate via email with each other, but to direct all emails to Ex. 2 (B3). On April 24, 2014, Gilbert cooperated with an Army AR 15- 6 investigation of the ?ndings by the Joint Commission. Ex. p. 5. Gilbert disclosed to investigators additional infection control failures at the hOSpital and ?s retaliatory actions against her Ex. P13 20 24- Gilbert also disclosed that the hospital had failed to correct de?ciencies identi?ed by the Joint Commission, telling investigators that two dirty cystoscopes with biological residue had been sent to the operating room for use, and that the packaging serial numbers and the numbers on the scopes did not match2014, Gilbert contacted the Joint Commission again to disclose that infection control program continued to deteriorate. Ex. Ex. p. 12. She relayed a complaint from a doctor who noticed new incidents of ?visible matter? and nonmatching serial numbers on several scopes. She also filed a second complaint with the OIG alleging that retaliated against her by excluding her from meetings, restricting her work to half days, and Prohibited Personnel Practice Report OSC File No. Page 7 of 14 requiring her to use four hours of .. leave per day. EX. EX. (M). In late May 2014, Gilbert also contacted the office of Representative Renee Ellrners (R-NC) and reported .. retaliation. EX. 2(Cl); EX. (B). On May 30,2014, the Army released its Re ort of Investigation (ROI or Report) for the AR 15- 6. EX. The investigation found that ali?ed had insuf?cient training and was too inexperienced to serve as 3 33 3333 333353-23353i5lf35-3 EX. pp- 8, 21. The Army ROI concluded that the lack of a qu tied was the ?primary causal factor and most common reason given to investigators? to explain the hospital?s failures. EX. p. 8. The Report stated that, everyone interviewed at WMAC as part of this investigation opined that had a quali?ed been 1n charge of preparing the hospital to comply with infection control requirements, it would have been unlikely that the de?ciencies would have been so serious and, if they had, they would have been corrected.? EX. p. 21. Following the Army RO I initiated a number of personnel actions against Gilbert. Shortly after May 30, 2014, charged Gilbert twenty eight hours of Absent Without Leave (AWOL), principally for not submitting leave requests for the four hours of leave that - - directed her to use daily EXJuly 14, 2014, ,?ssued Gilbert a Letter of Warning stating that Gilbert needed to get past her negative view of and asserting that Gilbert 5 emails were hurting employee morale. admitted to OSC that I warning letter stemmed from Gilbert 5 allegations that had retaliated against her speci?cally that Gilbert accused . of ?stuff? and continued to make accusations against I. EX. 35(A)1p 77; EX 35(3) Pp 108- 109. And on July 24, 2014, terminated Gilbert access to patient files, detailed her out of infection control and placed her under investigation based on an allegation that she had illegally accessed and shared patient information. EX. EX. EX. p. 12; EX. pp. 88*89; EX. p. 18; EX. p.9. The allegation that Gllbert had accessed and shared patient information came from Who (3131de that . Gilbert-1 . - had reported that Gilbert shared 8 patient information with 12;? - - .5 without permission. EX. pp. 6 l2; EX. 35(8), pp. 84- 88; EX. p. 12- 13. WAMC assigned to investigate the allegation EX. 26, p. 2 - met with and - - 1C Of?cer and later successor. EX. 26,13 2 ?tindewed the patient - ,who had allegedly made the complaint against Gilbert. 161. however, denied contacting or making a HIPAA complaint against Gilbert EX. 24, p. l. told - I had no concerns about Gilbert and did not think the matter required an investigation EX also con?rmed the same to OSC. EX. 24, p. 1. Furthermore, told an Army investigator that Gilbert had not disclosed - and that had not contacted - about the allegation. EX. medical informa on p. 2. told OSC that. briefed on the results from . interview. EX. 26,1313 4- 5. Instead of drOpping the matter as requeSteda 33 pressed forward and told to conduct an audit of Gilbert work for HIPAA violations. EX. 26, p. 4. The evidence showed that Gilbert routinely reviewed patient records as part of her duties to ensure Prohibited Personnel Practice Report OSC File No. Page 8 of 14 that patients received correct medication for drug-resistant infectious diseases. EX. 7, p. 1. Gilbert accessed hundreds of patient records daily, depending on the number of patients admitted into the hos ital or seen in the Emergency Department51. was apatient at WAMCThus, 5 audit veri?ed that Gilbert reviewed treatment records for approximately two minutes, but concluded that Gilbert 5 review could have been 1n the proper course of business. EX. EX. 26, p. 4. DeSpite inconclusive ?nding, worked with and personnelist, to seek Gilbert?s removal based on the incident EX. 43(24): 14- 16. however, COuld not ?nalize Gilbert?s proposed removal before . transfer from WAMC. EX 32, pp. 21, 24, 85; EX. 64, pp. 109- 110. The task was reassigned to ,who expressed concerns because . was not Gilbert supervisor andhad not been involved 1n investigation. EX. 64, pp. 73, 86- 87, 108- 109. Nonetheless, told . to sign Gilbert 3 proposed removal and I did on October 20, 2014EX. (B). A few days later, and decided that it was improper for to propose (31le? removal as was not Gilbert 3 supervisor. EX. 32, p. 22, EX. 64, pp. 73, 107-109, 116. They rescinded the proposed removal and - reissued it with the same charges on November 10, 2014. EX (B). 2 In addition to the charges regarding ,the second proposed removal added a charge that Gilbert violated HIPAA by having accessed her own medical records. Id. -, however, con?rmed to OSC that accessing one?s own medical records is not a violation of HIPAA. EX. 26, p. 5. OSC obtained a voluntary stay of Gilbert?s removal from the agency on December 17, 2014, and the Army never effected it. EX. LEGAL ANALYSIS It is a prohibited personnel practice to take or threaten to take a personnel action because an employee discloses information that she reasonably believes evidences a violation of an agency rule or poses a speci?c danger to public health or safety. 5 U.S.C. 2302(b)(8). In order to establish a violation of the statute, four elements must be present: protected disclosure; personnel action; knowledge; and causal connection. To establish a causal connection in a disciplinary action case, preponderant evidence must show that a protected disclosure was ?a signi?cant motivating factor in the action, even if other factors also motivated the decision.? 5 U.S.C. 1215(a)(3)(B). The responsible employee, however, may avoid discipline if ?the employee demonstrates, by preponderant evidence, that the employee would have taken, or the same personnel action, in the absence of such protected activity.? 1d; S. Rep. No. 112-155, at 14-15 (2012) (discussing signi?cant factor test). In this case, aswe demonstrate below, the evidence IS clear that Gilbert made protected disclosures, that had knowledge of those disclosures, that they were a signi?cant testi?ed that no one asked I at the time whether Gilbert had legitimate reasons to access - 5 medical records. Ex. 64, p. 52. said that the Agency failed to examine the circumstances of Gilbert 5 review of - 5 records when it proposed her removal. EX. 64, p. 64 68. Not until 2016 did anyone ask . to analyze whether Gilbert had a legitimate reason to review records. EX. 64, pp. 52- 53. concluded in 2016 that there was no legitimate reason for Gilbert to be in 5 records and an appropriate penalty would be a reprimand. EX 64,1313 1 13?114. Prohibited Personnel Practice Report OSC File No. Page 9 of 14 motivating factor in the personnel actions that took against her, and that those actions would not have been taken in the absence of Gilbert?s protected disclosures. Thus, OSC concludes that discipline is warranted. While OSC lacks independent authority to discipline a member of the uniformed services for a prohibited personnel practice, OSC has statutory authority to transmit recommendations for disciplinary and other apprOpriate action to the head of the agency for consideration. 5 U.S.C. 1215(c)(1). A. Gilbert Made Protected Disclosures and Engaged in Protected Activity A disclosure is a formal or informal communication or transmission that the employee reasonably believes evidences any violation of any law, rule, or regulation, gross mismanagement, gross waste of funds, abuse of authority, or a substantial and speci?c danger to public health or safety. 5 U.S.C. 2302(a)(2)(D); Mithen v. Den?t of Veterans Affairs, 119 M.S.P.R. 215 (2013). The standard for evaluating ?reasonableness? is an objective one: could. a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee reasonably conclude that the information evidences an imprOpriety de?ned in the statute. Lachance v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999), codi?ed by Whistleblower Protection Enhancement Act of 2012, 5 U.S.C. 2302(b). An employee need not prove an actual violation to establish that she had a reasonable belief that her disclosure met statutory criteria. Stiles v. Dep?t of Homeland 116 M.S.P.R. 263 (2011). Based on the results of investigation, OSC concludes that Gilbert made protected disclosures and engaged in other forms of protected activity on multiple occasions between January and May 2014. As discussed 1n the facts, supra, at 3, 4 and 6, Gilbert provided information to --.. ,other WAMC of?cials, the OIG, the Joint Commission, agency investigators, and a congressional of?ce that evidenced speci?c and serious danger to patient health because of lax enforcement of infection protocols and own lack of experience and Quali?cations as -. The independent ?ndings of the Joint Commission and the Army corroborate the reasonableness of these disclosures. Took a Number of Personnel Actions Against Gilbert A ?personnel action? is defined in 5 U. S. C. 2302(a)(2)(A) and includes disciplinary or corrective actions, a detail, a decision concerning bene?ts, and a signi?cant change 1n duties, responsibilities, 01 working conditions. OSC found that took or threatened a series of personnel actions against Gilbert, speci?cally: (1) excluding Gilbert from important infection control meetings and business, (2) forcing Gilbert to take leave involuntarily, (3) placing her in AWOL status, (4) issuing her a letter of warning, (5) detailing her out of infection control; and (6) subjecting her to a misconduct investigation that resulted in a proposed removal from service. Had Knowledge of Gilbert?s Disclosures Prohibited Personnel Practice Report OSC File No. Page 10 of 14 . was the direct recipient of many of Gilbert disclosures, including her complaints regarding testified, ?[F]rom the time I took the job. ..Ms Gilbert had numerous issues with me being the .. . . Part of her issue was I was not, quote unquote, certi?ed in infectlon control. .. EX. pp. 13- 18. And other officials also admitted to receiving frequent correspondence from Gilbert raising these issues. As told OSC, ?[W]e11, in the beginning when I started getting [Gilbert?s emails raising problems in infection control]. .I was Opening them all But then I realized that I wasn attending to other priorities Ex 32, p. 80. Thus, OSC ?nds that WAMC and had knowledge of Gilbert disclosures. Moreover Gilbert routinely informed and other WAMC of?cials of her disclosures to outside entities at or near the time that she made them. Ex. 11. For example, -- admitted that Gilbert told that she intended to report to the 01G for making her work outside the scepe of her duties. Ex. 3503), 130- 134 also had complained to co- -wolkers that Gilbert ?sent the mock survey to joint commission and? now they are after us, she always 15 writing the commander and telling the commander what 1s going on in this department, you know she always Ex 52, 26. Finally, acknowledged Gilbert told ?everyone she was a whistleblower? and that she ha ?led an IG complaint.? Ex. pp. 1 32- 133. 3" Personnel D. Gilbert?s Disclosures Signi?cantly Motivated Actions OSC can meet its burden to demonstrate the causal connection between Gilbert disclosures personnel actions against her through direct or circumstantial evidence. See Herman v. Dep ?t ofJustice 119 M. S. P. R. 642, 650 (2013). Signi?cant-motivating factor causation may be inferred from different types of evidence including: (1) retaliatory animus or motivation; (2) the proximity in time between the protected disclosure or activity and the personnel action; and (3) inconsistencies in the stated reasons for the personnel action.3 Here, the evidence clearly demonstrates that- took personnel actions against Gilbert because she made disclosures and engaged in protected activity. First, exhibited strong retahatory animus against Gilbert followmg her disclosures, particularly after she challenged if Quali?cations and shared the survey results with the Joint Commission. Second, began an escalating series of actions against Gilbert immediately following Gilbert 3 contact with the Joint Commission. And third, explanations of I treatment of Gilbert were inconsistent and contradicted by other VA employees with no motivation to lie. 11733-519353 and WAMC Management Exh1b1ted Strong Retaliatory Animus After Gilbert Complained to ,Management and the Joint Commission 3This list of factors is similar to those articulated 111 case law applying the ?s1gn1f cant factor? standard under civit service laws and the ?motivating factor? standard under the Uniformed Services Empioyment anti Reemployment Rights Act. See 3 g, Mt. Healthy C1'1ySch. Dist Ba?. ofEduc Doyle, 429 U. S. 274, 287 (1977); Sheehan Dep ?t?of the Navy, 240 F.3d 1009, 10i4 (Fed. Cir. 2001); Marshallv Dep ?rof Veterans A?airs(2008). Prohibited Personnel Practice Report OSC File No. Page 11 of 14 Immediately after .. .. .. .. Gilbert complained to .. management and the Joint Commission regarding slack of quall?catlons and the signi?cant problems 1n infection control at WAMC. Based on her disclosures, and t0 WAMC surprise the Joint Commission advanced the survey date by two months, giving WAMC management only one week's notice of its review. Ex. 5. The Joint Commission then reported de?ciencies of such signi?cance that the Army Surgeon General considered shutting the hospital down and ordered a complete investigation Finally, the Army investigation concluded that was unquali?ed for . position and that I lack of quali?cation was the principal reason for the extremely serious infection control failures uncovered by the investigations. Gllbert disclosures were serious, substantiated, and re?ected negatively on giving a reason to have animus toward Gilbert and a motive to retaliate. See Phillips v. Dept of Tramp(2010) (?nding retaliatory motive where complaint' allegations re?ected poorly on managers). Not only did have reason to have animus toward Gilbert, - actively exhibited such animus to Gilbert 5 conworkers - who joined Infection Control In February 2014, and had no prior With e1ther - 0r Gilbert, testi?ed that - was very upset that Gilbert had sent the mock survey results to the Joint Commission and blamed Gilbert for the Joint Comm1s310n decision to move up the date of the survey. Ex. 52, pp. 21, 26- 27. told that. was upset ert because she was ?throwing people under the bus Ex 52, 42 And, according to made clear that - wanted to marginalize and dismiss? Gilbert. Ex. 52, p. 38. -- described .1mpression 0f - attitude toward Gilbert as, don like her, so I don want you to like her either. I don talk to her, sol don 1 want you to talk to her either?.42 - expressed Impressmn that wanted? ?to get rid? of Gilbert, saying, ?There were times where would? .imply that because of all the stuff that [was going on] Ms Gilbert ..doesn? need to be here? .in this department they need to get rid of her, she tearing this place down.? Ex. 52, pp. 41 42 OSC found to be a credible witness to the retaliatory animus displaYed by toward Gilbert. 2. There wasClose Timing Between Gilbert' Protected Disclosures and 3 Personnel Actions . in January 2014, and immediately thereafter Gilbert complained to and to management about the lssues facing Infection Control, and her own conviction that was not quali?ed to be -. On January 14, 2014, Gilbert disclosed the mock survey results with the Joint Commission, and on January 24,2014, she told that she had done so. See supra at 4. Immediately thereafter, began excluding Gilbert from key Infection Control meetings, including meetings with the Joint Commission Just two weeks after the Joint Commission concluded its on?site survey March 21, 2014 with an extremely negative out- brief to WAMC management noti?ed Gilbert that - was restricting her to a half-day work schedule and would require her to take four hours of leave each day Ex. pp 3 Ex. pp. 12- 13. Gilbert later cooperated with the Army investigation Prohibited Personnel Practice Report OSC File No. MA-14-3308 Page 12 of 14 into the ?ndings of the Joint Commissmn the Report of Investigation of which was released on May 30, 2014. Shortly thereafter . charged Gilbert twenty eight hours of AWOL for not submitting leave slips for the leave she was required to take. See Fitzgerald v. Dept of Homeland Sea. 107 M. S. PR. 666, 676 (2008)( holding that an inference of retal1atory intent can be drawn from evidence of suspicious timing). And following the Army ROI, . engaged in the escalating series of personnel actions, including removing her authority to access patient records placing her under 1nvestigation, and seeking her removal. See supra at 7. Gave Inconsistent and Contradictory Explanations for Personnel Actions During the course of OSC investigation, offered several contradictory reasons for excluding Gilbert from Infection Control related meetings. denied . did any of this because of animosity towards Gilbert?s disclosures claiming variously that never excluded Gilbert from meetings that Gilbert chose not to attend the meetings that Gilbert?s absences from work precluded her attendance and that all employees had access to the information anyway Ex. p. 1; Ex. pp. 59 61; Ex. 35(8), pp. 27- 29 44- 45; Ex. 35(8), 53. OSC obtained documentary evidence that contradicted each of these explanations. Specifically, there was email traf?c 1n which Gilbert repeatedly requested to attend Infection Control meetings and exp11c1tly denied these requests. Ex. (9C) 42 (B) (C.) OSC determined that contrary to .. . ?s contention Gilbert was available to attend meetings but purposefully excluded her. Ex pp. 13 14 19,1311. 52 pp. 21 22. And there wee evidence that - did not distribute information outside the meetings, thereby belying ?5 claim that all employees had access to the information from the brie?ngs Ex. Ex. p. 11. Moreover, while schedule based on told OSC investigators that hadplaced Gllberton ahalf?day Ex Ex. Ex. pp. 23- 47. was followmg instructions from HR Liaison - . ,,however contradicted-, testifying involved in the decrslon to keep G1lbert on a half-day schedule once . - . . -. and further that it was illegal to force Gilbert to use leave under the circumstances. Ex. 58, p. 43. Similarly, disputed 5 claim that I had told - to place Gilbert on AWOL when Gilbert did not submit leave slipssaid management mishandled Gilbert?s case and that I eventually resigned over too many imprOper management tactics. As I put it, was washing my hands of? .[what] was going on because it was just so much.? Ex. 58, pp. 64. When confro,nted Ex. 35(8), pp. 5 Ex. p.11. tine uivocall that ?s decisions 1n late July to terminate Gilbert?s access to patient ?les, detail her out of infection control, and investigate her for misconduct, were not supported by the results of investigations by the hospital, the Army, or OSC. See discussion, supra at 7. Rather, the results of those investigations demonstrated that consistently denied to investigators having ever made a HIPAA complaint against Gilbert, and that Gilbert?s access to the patients? tiles was consistent with the discharge of her normal duties. Ex. Ex. 24, p. 1. Prohibited Personnel Practice Report OSC File No. Page 13 of 14 Cannot Show that Would Have Taken the Same Personnel Actions in the Absence of Gilbert?s Protected Activity E. Because the direct and circumstantial evidence described above demonstrates that Gilbert's protected disclosures were a signi?cant motivating factor in the Army 5 multiple personnel actions against her, OSC has established a prirna facie case of whistleblower retaliation justifying discipline The burden thus shifts to . to show that . would have taken the same personnel actions against Gilbert 1n the absence of Gilbert 5 protected disclosures 5 C. 1215(a)(3)(B). We conclude that i cannot establish by preponderant evidence that. would have taken the same personnel actions against Gilbert even had Gilbert not blown the whistle. As noted above supra at 12 the reasons that gave for each of the personnel actions I took were either inconsistent with the documentary evidence inconsistent with . own prior statements or directly contradicted by other witnesses. The lack of clear and consistent explanations for contested personnel actions makes it dif?cult to prove that they were taken for a reason other than Gilbert?s engaging in protected activity. Moreover, the facts showed a clear pattern of personnel actions that had the effect of restricting Gilbert?s access to information concerning infection control practices by excluding her from meetings, eliminating her access to patient charts, limiting her to half-days in the workplace, detailing her out of the unit, and seeking her removal. There does not seem to be any logical explanation for this pattern of using personnel actions to limit access to information that formed the basis for Gilbert 3 disclosures other than that they were taken to prevent her from and therefore would not have been taken absent her protective activities. In short, pattern of retaliatory actions cannot be explained by causes independent of Gilbert 3 protected activity. Therefore, it is unlikely that. could present an affirmative defense that . would have taken those actions anyway. RECOMMENDATION FOR DISCIPLINARY ACTION While a single retaliatory personnel action is suf?cient to warrant discipline, OSC investigation found evidence that engaged 1n a pattern of retaliatory personnel actions against Gilbert. Based on these ?ndings, OSC concludes that violated 5 S. C. 2302(b)(8) and should be disciplined for committing prohibited personnel practices. In mitigation, the evidence showed that was not repared for the responsibility and challenge of managing the hOSpital?s infection control program. lack of experience and credentials were cited as major factors in the program?s failures. assignment was intended only to be temporary. The evidence also showed that higher-level of?cials at the hospital, from whom - took direction, displayed such a lax attitude toward the program that they failed to take the mock survey or Gilbert?s whistleblowing disclosures seriously. Still, pattern of actions against Gilbert aggravated the seriousness of the hospital?s infection control problems, increased the risk of harm to hospital patients, and likely served as a Prohibited Personnel Practice Report OSC File No. Page 14 of 14 deterrence to others to blow the whistle on threats to patient health and safety. The latter is of particular importance because the government depends on the courage of employees like Teresa Gilbert to Speak up when they see dangers and inefficiencies, eSpecially when patient health and safety is at stake. OSC has jurisdiction to recommend that the Secretary of the Army take appropriate disciplinary action against 31 for personnel actions . took or threatened against Gilbert because of protected activity. 5 U.S.C. 1215(c)(1). By statute, the Army is required to provide OSC with a report of the actions it takes or proposes against within 60 days of receiving this report. 5 U.S.C. 1215(c)(2).