Nurse manager at Pueblo mental hospital violated whistleblower act by demoting employee
An administrative law judge with the Colorado State Personnel Board ruled Thursday that a manager in the nursing department at the Colorado Mental Health Hospital in Pueblo violated the state’s whistleblower protection laws when he demoted one of his subordinates last year.
Judge Susan Tyburski determined that Brian Gonzales, a former program chief nurse at the hospital, breached the state’s whistleblower act when he demoted former hospital employee Christine Mendias from a mental health clinician role to that of a client care aide on Oct. 24, 2022.
The whistleblower act protects state employees from retaliation when they disclose actions by state agencies. Tyburski found that Gonzales retaliated against Mendias with his decision, which came after a Sept. 2 nursing staff meeting last year in which Mendias reported patients’ concerns about an incident that occurred at the hospital a few months prior.
“Chief Nurse Gonzales’ retaliatory discipline of complainant for reporting patient concerns was in bad faith, malicious and a means of harassment,” Tyburski wrote in her judgment. “In addition, the ALJ finds that Chief Nurse Gonzales’ testimony during the evidentiary hearing was disrespectful of the truth.”
A three-day administrative hearing was held in July this year to determine whether Mendias’ speech was protected under the state’s whistleblower act and whether the disciplinary action against her was arbitrary, capricious or contrary to rule or law. She, through her attorney Mark Schwane, filed a complaint with the state personnel board last year over Gonzales' decision in which she argued her comments were of public concern and protected through the act.
Attorneys Carlos Ramirez and Jacob Paul, who represented Gonzales as well as the Colorado Department of Human Services, which oversees the hospital, in the hearing, contested that Mendias “failed to treat others with respect," and "made unsubstantiated allegations possibly leading to the harmful reputation of others and assigned blame.”
“I think it’s pretty obvious that he did it purely for retaliatory purposes,” Schwane told the Chieftain on Thursday. “There was never any justification for demoting her to a position and job she had never done in her career and lowering her pay 25%. It’s nothing more than him being punitive. The judge was pretty clear about that.”
CDHS, through a spokesperson, declined to comment to the Chieftain.
What the parties say occurred at the Sept. 2 staff meeting and how the judge perceived it
At the nursing staff meeting, Mendias disclosed that some patients had reported to her that they felt unsafe in their unit at the hospital because of the behavior they witnessed by nurse Misty Phillips on July 2 during an incident that required emergency assistance.
Phillips, a former hospital employee who was in the unit that day, 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” when a patient, identified only as "RB" in court documents to protect patient confidentiality, collapsed in one of the units. Other patients witnessed the incident and patient “RB” died a week later. Phillips was placed by the board on a one-year probation in April when it issued its ruling.
Phillips was kept on staff by Gonzales after the event but was under the supervision of another nurse. 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.
Mendias on Sept. 8 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. Gonzales filed his own complaint against Phillips on Sept. 27.
Mendias at the meeting, when asked by former colleague Cynthia Howard if she had ever made a “big mistake,” responded that she had, but that she "hadn't killed anyone,” which she argued was in reference to patients’ concerns and interpretation of Phillips’ actions.
“In raising patient concerns about nurse (Phillips), complainant was acting as an advocate on behalf of her patients,” Tyburski wrote.
Witnesses at the meeting also said that they heard Mendias say, "Misty (Phillips) killed RB." During the hearing, hospital employee Carla Carriere testified that she was "shocked" by Mendias' implication that Phillips was to blame for the patient's death but said it "was a risk" to have her stay on the unit. Another employee, Dawn Genzer, at the hearing said it was clear to her that Mendias was speaking on behalf of the patients who witnessed the incident when she made that comment.
"Considered as a whole, the witness statements support complainant's testimony that, in stating that nurse (Phillips) was responsible for patient's death, she was reporting what the other patients on the unit were telling her," Tyburski wrote.
Pueblo employees at state-run mental hospital lambast work environment, site leadership
Gonzales questioned Mendias about the complaint she filed against Phillips before he decided to demote her, concluding that her comments at the Sept. 2 meeting violated CDHS' and the hospital's codes of conduct, according to Tyburski’s report.
Gonzales, in his reasoning for the decision, also wrote that Mendias during the meeting “acted inappropriately” and created a “negative impact on coworkers and patients.” He was not at the meeting but relied on witness statements from people who were.
Tyburski, however, ruled that Mendias’ disclosures involved “matters of public concern," ultimately led to the disciplinary action against her, and didn't violate CDHS' or the hospital's codes of conduct. She also determined that the proximity between her declarations and Gonzales’ discipline “justifies an inference of retaliatory motive” because he started the disciplinary process after learning about her comments and nursing board complaint.
“Chief Nurse Gonzales’ punitive action, in and of itself, smacks of retaliation,” Tyburski wrote. “The preponderance of the evidence establishes that reasonable persons fairly and honestly considering the evidence must reach a contrary conclusion concerning the appropriate discipline — that a demotion from mental health clinician to client care aide was not justified by complainant's comments during the Sept. 2 meeting.”
Mendias initially sought to be reinstated to her role as a mental health clinician. She later asked for financial compensation from lost pay and compensatory damages and for her attorney fees to be covered. She left the hospital in April.
The demotion came with a nearly $7 reduction in hourly pay — she had been making $25.72 per hour prior to that — and left Mendias in a position where she “could no longer use her education and mental health skills,” Tyburski wrote. Mendias as client care aide had to help patients with physical care needs, toileting and showering, among other tasks that were vastly different from those she had as a mental health clinician.
Tyburski in her decision wrote that CDHS and the hospital must reimburse Mendias $6,673 in lost wages because of the demotion and pay her attorney fees since Gonzales violated the whistleblower act. She also ordered that the demotion be "reversed and expunged" from her personnel file.
Other claims for compensatory damages, including those for the "emotional distress and financial harm" that Mendias said she experienced, weren't awarded because she didn't prove during the hearing that she suffered such losses, Tyburski wrote. Schwane said he was "disappointed" about that decision but that he and Mendias were "pleased about the findings of fact and ultimate conclusion."
Gonzales, who has been employed at the hospital since 2021, was promoted last spring to interim director of nursing, one of the top positions in the nursing department at the facility. He is currently the hospital's assistant director of nursing.
A CDHS spokesperson in August shared that the hospital hired Kameron Post as its director of nursing.
“It’s hard for whistleblowers to come forward with these claims because it really alters their lives,” said Schwane, who has represented other hospital employees in similar matters. “From our perspective, there’s been zero change on part of the hospital to reform their practices. It’s a pretty clear indictment on Brian Gonzales and not only is he still employed there, he was recently promoted. It’s hard to understand how the hospital can continue to have an employee like that and promote them.”
Tyburski in her ruling didn’t impose discipline on Gonzales for violating the whistleblower act but rather delegated that action to his appointing authority or supervisor, which would consider the “nature and severity of the retaliatory conduct involved.” Mendias contested that Gonzales should be demoted to a position inferior to the one he has now.
The penalty for violating the act can range from a one-week suspension to termination. Any form of discipline issued toward Gonzales would remain permanent on his personnel record.
Prior to her departure, Mendias was praised in her 2021 and 2022 performance evaluations for “listening to and anticipating patients’ needs and concerns,” Tyburski wrote.
Tyburski says Gonzales’ action was ‘arbitrary,' 'capricious,’ and violated board rules
Tyburski in her ruling determined that even if CDHS proved that Mendias violated its code of conduct, the demotion was “arbitrary and capricious” because Gonzales failed to give “candid and honest consideration of the evidence."
Multiple witnesses during the hearing had differing versions of what Mendias said during the Sept. 2 meeting and Gonzales testified that he didn’t believe Mendias’ explanation and discounted witness statements that supported it.
Tyburski called Gonzales’ penalty to Mendias “extremely punitive,” finding that it wasn’t appropriate and didn’t align with her alleged misconduct.
Tyburski also found that Gonzales violated three Colorado State Personnel Board Rules because his decision to demote Mendias was “based on a reason he failed to identify or investigate during the Rule 6-10 process.” That process requires meeting notices that must be given to employees if a supervisor wants to meet with them because they’re considering discipline.
Gonzales during the hearing testified that he demoted Mendias because she wasn’t providing the required care for patients, citing an “absence of chart notes” regarding her care for patients. Tyburski, however, wrote that Gonzales didn’t mention that in meeting notices he sent to Mendias.
Poehlein testimony was ‘consistent and credible’
Ramirez and Paul during the hearing attempted to discredit the testimony of David Poehlein, a former hospital employee who documented 40 pages' worth of notes on what was said in meetings he sat in on while working there. Gonzales and Tiffany Greenfield, a nurse manager at the facility, were also in those meetings.
The CDHS attorneys asked Poehlein several questions about corrective actions in his own personnel file, and questioned another witness about times Poehlein was untruthful. However, Tyburski wrote that Poehlein’s testimony was “consistent and credible.”
Poehlein testified during the hearing that Gonzales in a Nov. 22 meeting called Mendias a ““f------ b----” and said that “he hates her.” Gonzales in the hearing said he couldn’t remember if he made those comments.
Poehlein also testified that Gonzales in another meeting told him to “watch out” for Mendias because “she is looking to report people.” At a separate meeting, he said Gonzales told him he hoped that the judge “doesn’t side with her” concerning her legal action. Gonzales during cross examination said he remembered that comment.
“Chief Nurse Gonzales’ comments to nurse Poehlein provide direct evidence of retaliatory animus towards complainant,” wrote Tyburski before later adding that Gonzales’ comments about Mendias demonstrated his “animosity” toward her after her disclosures.
Gonzales was not made available for comment to the Chieftain after the administrative hearing.
“CDHS cannot comment on personnel matters,” a spokesperson said in an August email to the Chieftain. “However, the department does not condone inappropriate language or treatment of any staff.”
Chieftain reporter Josue Perez can be reached at JHPerez@gannett.com. Follow him on X, formerly Twitter, at @josuepwrites. Support local news, subscribe to The Pueblo Chieftain at subscribe.chieftain.com.
This article originally appeared on The Pueblo Chieftain: Pueblo mental hospital violated whistleblower act in employee demotion
