Former Pueblo mental hospital employee claims demotion violated state whistleblower laws

A former employee of the Colorado Mental Health Institute in Pueblo is claiming their superior violated Colorado's whistleblower protection laws when he demoted them.

A complaint filed last October with the Colorado State Personnel Board by former CMHIP employee Christine Mendias claims that Brian Gonzales, then a program chief nurse at CMHIP, violated her protection under the state’s whistleblower act in a retaliatory manner when he decided to demote her that same month.

That complaint was the subject of a three-day administrative hearing with the state personnel board last week, which sought to determine whether her speech was protected, whether she actually made the comments for which she was disciplined, and whether the disciplinary action was arbitrary, capricious or contrary to rule or law.

Mendias was a mental health clinician prior to her demotion to client care aide, which came with a nearly $7 reduction in hourly pay. She had been making $25.72 per hour prior to that.

The Colorado Department of Human Services, which oversees the hospital and is the respondent in the matter, argued through its attorneys in a prehearing statement that the disciplinary action by Gonzales was issued because Mendias violated the hospital's code of conduct by “failing to treat others with respect, making unsubstantiated allegations possibly leading to the harmful reputation of others and assigning blame.”

CDHS also contested in its statement that Mendias’ claims of retaliation and request for relief should be rejected. Those requests were signed off on by Carlos Ramirez and Jacob Paul, attorneys within the Colorado Attorney General’s office representing CDHS and Gonzales.

Mendias and her attorney, Mark Schwane of Schwane Law, argued in their prehearing statement that Mendias' comments last year during a Sept. 2 nursing rounds meeting, as well as a complaint she filed about another employee later that month, were disclosures about “public concern” and are therefore protected under the whistleblower act.

Mendias in the complaint initially sought to be reinstated to her role as a mental health clinician, but she has since left CMHIP after starting there in 2018. She is seeking an unspecified amount of money in lost pay, compensatory damages as well as attorney fees.

Gonzales, who has been employed at CMHIP since 2021, was promoted last spring to interim director of nursing, one of the top positions in the nursing department at CMHIP.

What the parties say occurred at the Sept. 2 meeting

Mendias and Schwane, in their prehearing statement, argued that during the Sept. 2 meeting last year at CMHIP, Mendias was speaking on behalf of patients when she referenced how patients viewed a situation that occurred two months prior on July 2. On that day, a patient identified only as "RB" in court documents to protect patient confidentiality, collapsed in one of the units and required emergency assistance.

Some employees who were present at the meeting alleged that Mendias said “Misty (Phillips) killed RB,” and believed that was a reference to the July 2 incident with the patient.

Misty Phillips, a former employee at CMHIP, was in the unit that day and later was found by the state board of nursing to have “failed to respond appropriately to the emergency and did not immediately call a Code Zero or medical emergency.” The board also determined that Phillips “failed to appropriately care for the patient while waiting outside for emergency personnel” and placed her on a one-year probation in April when it issued its ruling.

Mendias said that some patients told her that they feared for their safety after the event, believing Phillips didn’t institute proper care for the patient. Those patients also learned that "RB" died days after the incident.

Mendias later filed a complaint with the state board of nursing, which involved Phillips based on her actions that day and how patients felt about her continued presence at the hospital afterward. Phillips was kept on staff by Gonzales but was under the supervision of another nurse after the incident.

Gonzales, during his testimony in the administrative hearing last week, said he was trying to maintain “quality of care” in the unit with his decision to keep Phillips on staff.

Prior to the Sept. 2 meeting, Mendias sent emails to some of her superiors and told them that some of the patients were still fearful following the incident. During the meeting, she asked if they would receive assistance.

According to the disciplinary letter issued by Gonzales to Mendias, during the meeting, she was asked by Cynthia Howard, another CMHIP employee, if she had ever made a "big mistake," to which she replied that she had, but that she “never killed anyone.” During her testimony at the hearing, Howard said that Mendias "implied that Misty (Phillips) killed RB."

Multiple witnesses during the hearing said they had different interpretations as to what Mendias actually said during the meeting.

Gonzales testified that the alleged comments made by Mendias at the Sept. 2 meeting, along with her previous performance and behavior, played a part in his decision to demote her. He also testified that patients who expressed fear and worry after the July 2 patient emergency received assistance.

Mendias disputed that allegation during her own testimony.

In his disciplinary letter, Gonzales noted that Mendias also was issued the discipline because of her decision to file the complaint against Phillips. Gonzales filed his own complaint against Phillips on Sept. 27, just under a month before he demoted Mendias.

Mendias testified that she couldn’t recall whether she made the comment “Misty killed RB” during the meeting.

Gonzales questioned about his actions and behavior in the workplace

During a portion of the hearing, Schwane told CSPB Senior Administrative Law Judge Susan Tyburski that he and Mendias felt Gonzales’ disciplinary action wasn’t genuine but rather was used as a tool to retaliate against her because of her comments at the meeting and decision to file a complaint against Phillips.

Schwane also contested that Gonzales himself violated the hospital’s code of conduct based on alleged statements he made about his subordinates.

David Poehlein, a former CMHIP employee for five years, sat in with Gonzales and other senior members of management, including Tiffany Greenfield, nurse manager at CMHIP, during meetings when he was employed there. Over a period of time, he documented nearly 40 pages worth of notes on what was said during those meetings.

Poehlein testified during the hearing that in at least one meeting, Gonzales said he hopes the judge “doesn’t side with her (Mendias)” concerning her pending legal action. When asked by Schwane during cross examination whether he made that comment, Gonzales said he did “remember making some kind of comment like that to Mr. Poehlein.”

Poehlein also testified that Gonzales during a Nov. 11 meeting called Mendias a “f---ing b---ch” and said that he “hates her.” Gonzales testified that he could not recall saying either comment when Schwane asked if he made them.

Gonzales was asked about other alleged instances where he made disparaging comments about employees, including one meeting where he allegedly referred to women who worked in a unit as “f----ing b---hes.” He said he could not recall making those comments.

However, Gonzales did recall one instance in a nursing meeting where he said that another male employee should “loosen up a female employee” and that he thought that comment was funny.

When asked by Schwane if he felt that type of comment in a staff meeting constituted a code of conduct violation, Gonzales said, “Yes, I do.”

Schwane also asked Gonzales if he had ever made comments about subordinates he felt were code of conduct violations. Gonzales admitted he did and testified that he referred to one employee, Sharon Lawson, who exhibits tremors, as “shaky Sheri.”

He later said that he thought the comment was humorous and that “it was a joke,” adding that Greenfield laughed when the comment was made. Greenfield during her testimony didn’t deny that she laughed when the “shaky Sheri” comment was made and said “it was funny.”

She also testified that she could not recall Gonzales calling employees “b---hes” and that he never referred to Mendias using inappropriate language.

Gonzales also testified that he remembered telling Poehlein he would be “Teri’s bitch,” referencing employee Teri Wellner, if he were to be under her supervision.

Gonzales also admitted that he didn’t take any disciplinary action toward at least one other other employee under his supervision who violated the code of conduct. He was asked about an instance in which John Archuleta, a former employee at CMHIP, walked over a dummy during a Code Zero drill because he didn’t want to engage with the drill or Jamie West, a female colleague.

Gonzales testified that he was aware Archuleta had previously falsified patient records and that he refused to accept corrective action from West for how he approached the drill.

West reported Archuleta’s actions to Gonzales, who eventually disciplined her for how she confronted Archuleta about his behavior.

Gonzales said he could not remember if he disciplined Archuleta for falsifying patient records or how he acted during the drill.

After that specific line of questioning by Schwane, Gonzales asked Tyburski if he could speak with his attorneys. Tyburski denied the request because she could not “allow him to be coached as far as responding to questions."

Tyburski is expected to issue a ruling on the matter at some point this fall.

Gonzales’ attorneys contest Mendias' actions warranted the demotion

Ramirez and Paul each contested that Mendias’ actions during the Sept. 2 meeting were “unprofessional” and “inappropriate” and are not protected under the whistleblower act.

When asked by Paul during direct examination, Gonzales said he felt that Mendias' comments that were reported to him “were not respectful to coworkers and could create a difficult working situation for them.”

“We are here because of the complainant's unprofessional and inappropriate actions at a nursing rounds meeting,” Ramirez said during his opening statement. “We are not here to assign blame for a patient’s death, even though assigning blame makes it easier to process. We are here because the complainant is trying to do exactly that.”

Gonzales also said that the decision to demote Mendias was the next step in the process because she had received a corrective action in 2021 for her behavior. Mendias also appealed that decision but it did not escalate to a hearing.

Ramirez also questioned Mendias’ approach to reporting to other employees what patients had been telling her. Mendias testified that she couldn’t recall whether she immediately gave a patient’s note to a superior after she received it. Gonzales during direct examination by Paul said he would have expected to see such a document, as well as others, from mental health clinicians regarding the treatment of patients.

Greenfield testified that Poehlein had been untruthful about whether he completed tasks of what was asked of him. Poehlein himself received a corrective action during his employment but testified that he felt it was “disingenuous” and “really punitive” after telling his superior about issues he was encountering.

Chieftain reporter Josue Perez can be reached at JHPerez@gannett.com. Follow him on Twitter @josuepwrites. Support local news, subscribe to The Pueblo Chieftain at subscribe.chieftain.com.

This article originally appeared on The Pueblo Chieftain: Former CMHIP employee claims demotion violated whistleblower laws