On Nov. 4, a federal appeals court upheld the U.S. Merit System Protection Board’s ruling on the decision by the U.S. Department of Veterans Affairs to fire a general surgeon, who claims he was terminated in retaliation, Law360 reported Nov. 5.
According to court documents obtained by Becker’s, the case revolves around the firing of Jeffrey Hawker, MD, who first began working for the VA in April 2013. In September 2013, Dr. Hawker was notified that he was being reassigned and his salary was being reduced on the basis of alleged “performance deficiencies.” A month later, the chief of staff at the VA Medical Center in Salem, Va., told Dr. Hawker that his privileges were being suspended, also due to alleged performance deficiencies, and that he would be placed under a review by a professional standards board.
In December 2013, Dr. Hawker was dismissed from his role, effective Jan. 3, 2024. The director of the medical center told him at the time that the decision was based on the recommendation from the professional board reviewing his alleged performance deficiencies.
In February 2014, Dr. Hawker filed a whistleblower reprisal complaint with the Office of Special Counsel, alleging that the VA terminated him in retaliation for disclosing patient care issues, according to court documents. The OSC issued a “close-out letter” in April 2014, but ultimately agreed to reopen its investigation into Dr. Hawker’s complaint.
Years later, in August 2021, OSC informed Dr. Hawker that it had terminated its inquiry into his 2014 whistleblower complaint. Dr. Hawker then filed an individual right of action appeal in October 2021, alleging that the VA took a number of “personnel actions” in reprisal for his protected whistleblowing activity. The same day, the administrative judge issued a “jurisdiction order and provided the parties with a comprehensive discussion of Dr. Hawker’s jurisdictional IRA appeal.”
On Oct. 11, 2021, Dr. Hawker then filed an affidavit, making several more specific claims against his former employer. In the affidavit, Dr. Hawker claimed to have disclosed concerns regarding studies or procedures performed incorrectly; concerns regarding safety of his supervisor’s performance; an incident in which his supervisor allegedly performed a carotid artery stent without using a protection device; standards of care issues within the radiology department; and procedures being performed outside of practitioner’s scope of practice.
While acknowledging that Dr. Hawker had addressed all five of his initial claims against his former employer in the affidavit, the administrative judge ultimately decided that Dr. Hawker had “failed to non-frivolously allege that he engaged in protected whistleblower activity.”
