No employer…shall take a disciplinary measure against, demote, terminate or otherwise adversely affect the employment of such and employee, or threaten to do so.
CFN – It’s a paradox that the very facilities designed to care for our aging loved ones can sometimes put them at risk. And if the public is forced to conclude there will always be some employees who will behave amorally and/or managers who act incompetently, then we must also conclude that “protectors” like nurse Diane Shay are even more important.
But where does one turn when protectors need protection?
For one, there’s the Criminal Code. And at the following link there’s a wonderful article about whistle blower law, authored by a lawyer from the firm Hicks Morely.(LINK) Ironically, the very firm hired to defend two city managers that illegally harassed Ms. Shay. Namely, Paul Fitzpatrick and Donna Derouchie.
In fact one of these managers, chief administrative officer Paul Fitzpatrick, was himself the person in charge of the whistle blower policy for the City. This means he was responsible for more than one thousand employees across all departments. But more on that, further down.
Time to go to court: 2011
About two years after the incident at Glen-Stor-Dun, The Ministry of Health and Long Term Care charged the City of Cornwall, as well as human resources manager, Robert Menagh, with illegal retaliation against Diane Shay.
A five-day trial date was set for May 2011.
Problem: At the eleventh hour, the Lodge’s manager Donna Derouchie failed to appear in court.
Interesting fact: At the next trial date, in October 2011, the City changed its strategy and decided to enter a guilty plea. As a result, the City was convicted, based on facts, and fined by the Ontario Court of Justice.
Among the exhibits presented that day in court, one clearly demonstrated the illegal retaliation committed against Ms. Shay by her supervisor, Mr. Menagh, whose original letter to Shay, (shortly after she reported the abuse) accused her of being:
Erroneously informed about the law;
Blinded by her zeal;
Disloyal to the City,
Guilty of insubordination, as well as
Wrong for having called into question, manager Donna Derouchie’s “professional judgment.”
Time to file the formal whistle blower complaint: 2012
After the City was charged, Shay says she was concerned that Mr. Fitzpatrick – who was still in charge of the Whistle Blower policy – was not providing testimony that Shay herself would have given under oath to City Council. So due to the misleading information that Fitzpatrick gave, primarily to newspaper The Standard Freeholder, Ms. Shay had no choice but to file a formal complaint.
But to characterize the specifics of her complaint, Shay explained the necessity of going back to the issue of the illegal retaliation by her harassers and their lawyer who worked for law firm, Hicks Morely.
In Shay’s complaint, Harassers No. 1 and No. 2 (Donna Derouchie and Paul Fitzpatrick) go together in a unique way.
Again, Derouchie was the top manager at the Lodge.
Fitzpatrick was the chief administrative officer for the City of Cornwall.
That means Fitzpatrick was Derouchie’s boss.
Shay felt and opined that she had reasonable grounds to believe there was a personal relationship between Ms. Derouchie and Mr. Fitzpatrick .
So boiled down, there were conflicts. These included that the lawyer assigned to defend the City did not inform City Council about:
Lawful whistle blower protection, or
The possible conflict associated with a Derouchie-Fitzpatrick relationship.
In any case, with the filing of these complaints by Shay, the City then hired a private investigator, a lawyer by the name of Judith Allen. Her report allegedly had the effect of discrediting Shay by formally reporting that the issues of resident abuse and retaliation were “unsubstantiated.” However, Shay says that Judith Allen was not given sufficient power (by Fitzpatrick and then acting CAO Stephen Alexander) to fully explore evidence that could have led to more factual conclusions. Nor were any of the interviews under oath.
The result is that Judith Allen’s “unsubstantiated” statement has been widely reported in Cornwall print news. This has confused people in the community.
Below is a final summary of facts.
Diane Shay got sacked in 2009 but was reinstated a few months after.
Shay is on long term disability as a result of the abuse she has suffered.
She is expected to pay her own legal fees but has had some help from the Registered Nurses Association of Ontario.
Former chief administrative officer Paul Fitzpatrick’s legal fees were for paid for by the City. He retired with a financial package.
Former human resources manager Robert Menagh was terminated without cause and with a financial package.
Manager Donna Derouchie left the Lodge with a financial package.
Diane Shay hasn’t completed her journey yet. She has asked the Ministry of Health & Long Term Care to review the Judith Allen report and will seek legal advice once the review is complete.
Most importantly, Shay says her goal is to press on and find ways to help nurses rise above “fear of reprisal” for speaking up when it’s legally and morally the right thing to do.
Editor’s Note; The author of this story asked that they not have a named byline, and be listed as Anonymous out of fear of retaliation by city officials and their tentacles. The irony of this part is that the PSW found to have abused a patient at GSDL is still working with the elderly while Ms Shay is not and those connected with her story( Fitzpatrick, Derouchie, & Menagh have left the active employ of the City of Cornwall.
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