CSC again sides with doctor in whistleblower case

MOTION HEARING: Dr. Kozue Shimabukuro reacts as the Civil Service Commission deliberates during a motion hearing on Thursday. The CSC ultimately voted in her favor. Screenshot from video

Dr. Kozue Shimabukuro was brought to tears as the Civil Service Commission on Thursday voted largely to deny a challenge to the September 2019 determination that the Guam Memorial Hospital Authority retaliated against her for speaking critically about management.

The case has been ongoing for more than two years, beginning with the whistleblower complaint filed in June 2018.

Shimabukuro had been vocal about various issues and concerns at the island's only public hospital. In April 2018, she was relieved of administrative responsibilities and redirected to clinical duties at the pediatrics division.

At the time, PeterJohn Camacho was the hospital administrator and Dr. Vincent Duenas was the medical director.

Shimabukuro resigned from her position as the assistant associate administrator of medical services at GMH and left the island on July 12, 2018.

Before leaving, however, she filed a whistleblower complaint alleging retaliation for speaking publicly about leadership issues that led to a preliminary denial of the hospital's accreditation in January 2018 during then-Gov. Eddie Calvo's administration. GMH would ultimately lose accreditation in July 2018.

While the issue originated with the prior administration, the case proceeded through the change in leadership with Gov. Lou Leon Guerrero and her team.

Soon after the CSC decision on September 2019, GMHA filed a petition for a hearing on the CSC staff report.

The hospital's challenge was based on two whistleblower complaint rules: that complaints should be filed within 20 days from the alleged retaliatory action and that motions to dismiss may be based on lack of jurisdiction, untimely filing of appeals, procedural defects or other significant reasons.

Attorney Minakshi Hemlani represented GMHA on Thursday. She said the first alleged retaliatory action took place on April 13, 2018, and Shimabukuro did not file her complaint until June 21, 2018, when it should have been filed in May at the latest. Therefore, she argued, the CSC did not have jurisdiction.

But even if the CSC did not find timeliness to be an issue, Hemlani stated there was no retaliatory action and that Shimabukuro's alleged whistleblower protected activity was not actually protected.

While the doctor alleged several retaliatory actions – removal of her administrative duties, being reported to the National Practitioner Data Bank and being forced to resign – Hemlani stated that CSC staff only believed the removal of duties to be retaliatory and argued that it should not be considered retaliation because staff also considered it reasonable given GMH was trying to cover shortages in pediatrics.

Further, Hemlani argued that Shimabukuro's disclosure of a Joint Commission critical list to the Legislature was confidential and not a whistleblower protected activity. But even if the CSC disagreed, there was no way that the disclosure in June 2018 could have motivated the alleged retaliation in April, a month or so before, Hemlani said.

Guam Federation of Teachers Field Representative Robert Koss, representing Shimabukuro, said retaliatory actions continued after April 13. Hospital management failed to schedule her for a day of work at the pediatrics division. In fact, there was no reason to be there as the division was fully covered, according to Koss.

GMH management would later reportedly try to pit Shimabukuro against another physician and in June, issued a media release and held a conference to refute her claims.

"June 13, GMH management retaliates by filing negative reports against Dr. Kozue under advice of their attorney, Minakshi Hemlani, to file with the National Practitioner Data Bank. Let's destroy her reputation. Let's make it impossible for her to get another job. Let's do everything we can to punish Dr. Kozue for her lack of cooperation as an administrator. That's what the hospital did on June 13," Koss said. "As long as that remains on the database, Dr. Kozue remains damaged by GMH."

Shimabukuro was later informed that GMH would pursue her license through the medical examiners board, according to Koss.

Later, he would state that GFT did not initially have information on the time limit to file whistleblower complaints but the rules also grant the commission the ability to excuse the deadline.

CSC Chairman Juan Calvo said the issue being raised was timeliness but he viewed the case as a "continuing episode."

"From the day 1 the employee raised this before management, there's a negative response by management," he said. "Even at the time the employee appeared at the Legislature ... thereafter, it still continued some negative acts against the employee. So retaliation is something continuing that I'm seeing here in this report ... and I said, when is the time for the employee to file an appeal?"

Calvo said he did not see filing as untimely because there were continuing actions against Shimabukuro.

GMHA needed four favorable votes to win the case. Four commissioners voted to deny management. Commissioner Priscilla Tuncap voted to accept.

Koss said there is some pay to Shimabukuro that needs to be recovered but the case isn't about pay, it's about getting a decision recognizing GMHA wrongdoing.

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