Monday, September 25, 2017

What Were They Thinking? (Part 2)

What Were They Thinking? (Part 2)

Some whistleblowers, including Debra Halbrook and me, see a wrongdoing and disclose it for good legal reasons.  Some also have a personal interest in their complaints.  Maybe they weren’t paid properly or work conditions were unsafe.  Some are lured by the chance of a big reward.

But for all, our motivations include a mix of legal, ethical, and personal reasons.  Take Dr. Lori Jespersen, PhD from Argosy University, past professor at Wright Institute, and author.

The California Department of Corrections and Rehabilitation (CDCR) hired Jespersen in 2008 as a clinical psychologist/clinical case manager.  When she moved to the California Medical Facility in Vacaville in 2009, Jespersen might have known what she was getting herself into.
 
The justice system has long been unkind to many, including those in the LGBTQ community. As a partial remedy, the federal hate-crime law was expanded in 2009 to include crimes motivated by the victim’s sexual orientation and gender identity.  Despite the 2003 passage of the Prison Rape Elimination Act (PREA), a 2012 survey found that LGBT inmates were at least 10 times more likely to be sexual victims than heterosexuals.  As a self-identified lesbian, Jespersen was sensitive to the special protections LGBTQ prisoners deserve under the Department of Justice’s 2012 standards

In California, the prison system was a confirmed failure in serving the mental health needs of its inmates.  In 1990 the CDCR was sued for providing inadequate mental health care.  Following another suit in 2001, system was placed under federal control in 2006 for continuing to inflict cruel and unusual punishment[1]

Still, Jespersen said she was happy in her job until July 2014.  That was when she saw three CDCR employees use Facebook to out a transgender prisoner she was treating.  They broke HIPAA privacy rules, she thought.  She complained without effect.  In December she complained again, this time about the hostile environment created by the three employees, who had not been disciplined. 
May 2015 was a tough month for Jespersen.  She protested more about the HIPAA breach.  A CDCR trainer told staff to use respectful pronouns when referring to transgender prisoners.  Some attendees rolled their eyes, and the trainer said, I know, I know, but you want to get paid, don’t you?  Jespersen complained to her boss that a CDCR employee had disclosed her sexual orientation.  Then she was transferred out of her Crisis Bed Unit.

In August she objected that CDCR staff forced female transgender prisoners to show their breasts and buttocks.  In December she charged that an officer forced a transgender prisoner to submit to a strip search in order to recover her property.
The retaliations increased.  Officer Tia McDaniels locked her in the correctional unit alone and without a safety alarm with a prisoner serving multiple life sentences for rape.

March 2016 was another tough month.  Jespersen reported that a gay prisoner was assaulted by a prisoner who had previously attacked other LGBTQ prisoners.  CDCR staff facilitated the assault by not locking the shower door.  A transgender prisoner was mocked by an officer who referred to her using male pronouns.  The prisoner, Jespersen reported, was denied her right to complain.  McDaniels locked her alone in the unit again, this time with two prisoners.

In April and May McDaniels encouraged three groups of prisoners to assault her.  Jespersen told her boss and her union rep she was afraid for her safety.  And she filed an EEO complaint.  While out on a stress leave, her boss encouraged her to return.  She said Jespersen could work in a different unit while McDaniels was being investigated.  When she returned from leave, she was demoted, removed from direct patient care, and assigned secretarial tasks.  Then CDCR assigned McDaniels to her new unit.

Although McDaniels has since been shifted to the main mental health unit, Jespersen is still barred from direct patient care.  Mediations with the California Department of Fair Employment and Housing and the EEOC failed.  Jespersen is suing the CDCR and its officers.  She lists several counts, including a hostile work environment, retaliation, interference with her medical leave, and violation of whistleblower protection.

As Halbrook and I did, Jespersen saw legal issues: she thought CDCR staff broke HIPAA and PREA rules.  But she also saw moral misconduct to which she was especially sensitive as a lesbian who counsels transgender individuals

Jespersen’s complaints are as difficult for an outsider to evaluate as any other whistleblowers’ are.  The CDCR figured, for example, that its employees’ misuse of personal pronouns was not a flagrant wrong.  As a wrong, it was on par with HomeFirst’s failure to have the required food handler cards.  Still, it was a wrong.

Like Halbrook and me, Jespersen suffered retaliations.  But it’s easy to imagine hers were unrelenting in a brutal environment.  Certainly her physical risk far exceeded what I and most other whistleblowers have experienced.

The dangers of whistleblowing tempt some to suppose we must have no choice but to act as we do.  Or that we could not live with ourselves if we stay quiet.  After interviewing many whistleblowers, C. Fred Alford decided we are driven by a “choiceless choice”[2].  These understandings are incomplete, though.  First, we observe misdeeds throughout our lives without feeling forced to stand up.  What leads us to object on this occasion?  Second, the obligatory hero rationale, like much of moral reasoning[3], is concocted after we act.  In our justifications we conveniently leave out the less appealing drivers of our actions.

The whistleblower’s courage and persistence don’t stand on a thin reed of ethical reasoning.  Instead a rich base of motivations supports our actions.  The mix includes how we were raised, our ethical training, our desire to get rich or just even, our understanding of the wrongs, our sympathies for the victims, and more. 

What Jespersen and others were thinking when they became whistleblowers has little lasting significance.  They are characters whose complexity makes them interesting and valuable.


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