Latest Phoenix VA Whistleblower
Alleges Retaliation

Inspector general substantiated whistleblower's claim that vets died waiting for care

Phoenix VA Health Care Center / AP
January 5, 2017

An employee at the Department of Veterans Affairs hospital in Phoenix says that he has been retaliated against for reporting that patients were dying while waiting for care.

Kuauhtemoc Rodriguez, or "K-Rod," is the chief of Specialty Care Clinics at the Phoenix VA Health Care System. He is also the whistleblower who brought forth the latest allegations about continuing backlogs and mismanagement at the Phoenix VA, some of which were substantiated by the VA inspector general in October.

Rodriguez, a U.S. Army infantry veteran who served in Iraq, is now being forced to testify before an Administrative Investigation Board (AIB) regarding allegations that his department leadership created a hostile work environment and engaged in discriminatory practices. In conversations with the Washington Free Beacon, Rodriguez described the administrative investigation as the latest attempt by hospital leaders to "deflect from their malfeasance," claiming that hospital staffers have been retaliating against him for months after he blew the whistle on management failings at the facility.

The inspector general started the latest investigation into the Phoenix VA in July 2015 after Rodriguez confidentially reported that scheduling staffers were inappropriately cancelling appointments and patients had died waiting for care, along with other management problems. The inspector general substantiated his claims, according to the report publicly released in October. More than 200 veterans died while waiting for appointments. Certain other claims were not substantiated by the inspector general.

Rodriguez's allegations came one year after the inspector general published its report on patient care delays and scheduling practices at the Phoenix VA in 2014 that prompted national outcry.

Rodriguez was informed on Dec. 9 that he was being summoned to provide testimony for the administrative investigation into allegations that leaders at the Health Administration Services (HAS), his department, "created a hostile work environment and engaged in discriminatory practices." The hearing, convened by RimaAnn Nelson, director of the Phoenix VA, was initially scheduled for Dec. 22 but has since been rescheduled for Jan. 12.

"You are required to furnish all information or evidence in your possession and to testify freely and honestly concerning your knowledge of the matter under investigation," the memo states. "Any refusal, on your part to testify, or any concealment of a material fact, or any inaccurate testimony knowingly and willingly given, may be grounds for disciplinary action against you personally."

Rodriguez has the right to representation during the questioning before the board.

The notice sent to Rodriguez did not specify whether the allegations have specifically been made against him.

When asked to respond to Rodriguez's claims, Paul Coupaud, a spokesman for the Phoenix VA, told the Free Beacon that Nelson "received multiple accusations of harassment from staff members in the facility's Health Administration Service, or HAS, against HAS leadership" and that the investigative board was convened to "gather facts in regard to the overall HAS leadership group to determine whether or not the allegations are valid."

The spokesman would not say whether Rodriguez himself is being accused of discriminatory or hostile practices, nor did he answer a question about whether the Phoenix VA has done anything to probe Rodriguez's own claims of retaliation or harassment.

"The leadership of the Phoenix VA Health Care System takes any allegation of workplace harassment seriously," he said.

"During the investigation, the board will interview any employees who they feel can assist them in fully exploring the case," he continued. "As the investigation is not complete, we cannot address what facts the AIB has or has not discovered."

Rodriguez has repeatedly sought help for retaliation, harassment, and hostile behavior by VA executives and individuals in his department, according to a dozen complaints filed with the U.S. Office of Special Counsel—the bulk of them logged before he received notice of the AIB—and shared with the Free Beacon. After receiving notice of the AIB, Rodriguez sent these complaints to Phoenix VA leadership as proof of "a pattern of harassment [and] retaliation" against him.

Rodriguez also says that a former director of the Phoenix VA tried to remove him from his position and halted his planned promotion after he reported the allegations to Congress in 2015.

"The Medical Center deputy director and the Medical Center director have engaged in retaliation by notifying me that I was going to be removed from my position as chief of Specialty Care Clinics at the Phoenix VA," Rodriguez wrote in an OSC complaint dated May 2016, before Nelson and the current deputy took over. "The intent of these acts is merely to retaliate against me for exposing wrongdoing."

"I'm continually harassed by management at the highest levels, kept from meetings, have had my duties removed, and have been threatened with removal," he wrote. "In addition I have been denied advancement in positions I have applied for and have been recommended for hiring, again due to my whistleblower status."

"The facility has failed to create a safe work environment for me and has allowed various employees to threaten me physically, and one employee who threatened my life [is] still allowed to operate with impunity," Rodriguez wrote.

VA inspector general investigators also recently approached Rodriguez over allegations that he was fudging his overtime hours, after an anonymous individual filed a congressional complaint accusing him of filing for overtime payment without working the hours. Rodriguez wrote to OSC in September denying the allegations and describing it as another attempt to retaliate against him for his disclosures.

There are currently multiple attorneys assigned to Rodriguez's case.

According to the October report substantiating some of Rodriguez's claims, the inspector general found that 215 patients at the Phoenix VA died while waiting for care and concluded that care delays may have contributed to the death of one patient. As of August 2015, over 22,000 veterans were waiting for care at the Phoenix VA, with nearly 35,000 open consults associated with these patients. The number of open consults has since grown, rising to nearly 38,000 as of July 2016.

The 2014 wait list controversy has spurred debate over the agency's handling of whistleblowers who report health care and management problems at VA facilities across the country.

Federal law prohibits reprisal against employees of federal agencies who disclose allegations of serious wrongdoing or mismanagement. The VA under current Secretary Robert McDonald has been criticized for not doing enough to protect whistleblowers who shine light on major problems at agency hospitals.

"If the next administration wants to protect whistleblowers then they first must acknowledge us. Under President Obama, VA leadership (both locally and nationally) was allowed to 'hunt' whistleblowers and many of us were sent running for our lives, forced to try and restart our careers at new locations, for doing nothing wrong other than telling the truth," Brandon Coleman, a Marine veteran and VA employee who disclosed substandard mental health care at the Phoenix VA two years ago, told the Free Beacon.

Coleman was placed on administrative leave for 18 months after his disclosures, and the VA reached a settlement with him last May that placed him as an addiction therapist at the Anthem VA. An internal investigation by the Office of Accountability Review found evidence substantiating Coleman's claims that a former interim director of the Phoenix VA retaliated against him, though the individual was never punished.

"In my case, it was proven up to 17 suicidal vets had escaped from the hospital and for that disclosure I was sent home for 460 days of leave, had my successful program destroyed, and even had a gag order placed on me by the hospital director trying to take away my First Amendment rights by forbidding me from seeking health care as a disabled veteran at the Phoenix VA hospital," Coleman said.

"I am one of the lucky ones," he said. "I won my case with help of Congress and the media. But there are hundreds of nameless VA whistleblowers no one will ever know who were also brave enough to bring up wrong doing."

Congress has sought to increase whistleblower protections. House lawmakers passed legislation with bipartisan support in September that would add a whistleblower complaint process to punish supervisory employees who "commit prohibited personnel actions against a whistleblower." The Obama administration objected to parts of the bill before its passage, but did not address the provision related to whistleblower protection.

VA leadership is expected to change under the administration of President-elect Donald Trump, who will be inaugurated on Jan, 20. While veterans service organizations have pressured Trump to retain McDonald, the president-elect has met with several new candidates for VA secretary, most recently Leo Mackay Jr., a former VA deputy secretary who serves as the senior vice president of Lockheed Martin.

Lawmakers have kept pressure on the VA to investigate reports of shortcomings at agency facilities. Sen. John McCain (R., Ariz.), himself a Navy veteran, has given attention to the failings of VA hospitals in Arizona and particularly the Phoenix VA.

McCain wrote to McDonald, who was installed as VA secretary following the resignation of Eric Shinseki in 2014, in November asking him to investigate new evidence from Rodriguez showing that 90 veterans who died at the Phoenix VA had their care denied or delayed by the hospital.

"I write to you regarding continuing allegations by whistleblower employees at the Phoenix VA that staff at Arizona VA hospitals and clinics have been delaying and denying care to veterans in Phoenix. These allegations are extremely troubling and, if true, unacceptable and demands your prompt investigation and involvement," McCain wrote in the Nov. 21 letter obtained by the Free Beacon. "It is also imperative that the whistleblower who provided this information be fully protected from any and all reprisal from his communication to my office."

McCain also wrote to Nelson, asking her to probe the claims "within the existing rules, regulations, and ethical guidelines" and provide him a copy of the final decision.

Leadership at the Phoenix VA has been fluid, with Nelson assuming leadership last October, the seventh director in three years. Nelson previously oversaw a hospital given the lowest satisfaction rating in the entire VA system.

The Phoenix VA is headquartered at the Carl T. Hayden VA Medical Center and consists of seven other clinics, serving 89,000 veterans in the Phoenix metropolitan area and central Arizona. It operates on a more than $650 million annual budget.

As of mid-December, nearly 520,000 veterans nationally were waiting more than 30 days for scheduled appointments, according to patient access data made public by the agency. At the Phoenix VA alone, over 8,400 patients were waiting more than a month for appointments.

Update Jan.6 11:02 A.M.: This piece has been updated to reflect that Nelson is the permanent director of the Phoenix VA. The Phoenix VA's annual budget and the number of veterans served was also updated. The article was also updated to clarify that the directors Rodriguez refers to in his OSC complaint are not the same ones currently assigned to the VA.