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Andrew Schwartz4525 Wilshire Blvd., Suite 201Los Angeles, CA 90010Tel: (323) 932-1746Fax. (323) 932-1873

Attorney for Complainant

OLIVER MITCHELL

Complainant

LOS ANGELES DISTRICT

) EEOC NO. 480-2010-00106X) Agency No. 200P-0691-2009142570

)) COMPLAINANT'S RESPONSE TO) AGENCY',S MOTTON FOR A DEC|S|ON) wrTHouT A HEARTNG

UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY GOMMISSION

V.

ERIC K. SHINSEKI, Secretary )Department of Veterans Affairs )

)Agency

COMES NOW the COMPLAINANT, Oliver Mitchell who respectfully requests that the

Agency's motion for a decision without a hearing be denied since there are material facts

of this matter that are genuinely in dispute.I. ACCEPTED CLAIMS

The Office of Resolution Management accepted the following claims of discrimination:

Claim A - Disparate Treatment

Whether Complainant was heated differently on the bases of Race

(African-American), Color (Black), Gender (Male), and/or Reprisal for prior EEO activity as

evidenced by:

Event 1: On June 8, 2009, he was detailed to unclassified duties in Primary and

Ambulatory Care, not-to-exceed 60-days, pending completion of an Administrative

lnvestigation (Fact-Finding). (Same as Claim B, Event 29)

Event 2: On June 5, 2009, effective at noon, he was placed on Authorized Absence.

(Same as Claim B, Event 30)

Claim B - Hostile Work Environment

Whether on the bases of Race (African-American), Color (Black), Gender (Male),

and/or Reprisal for prior EEo activity, complainant was subjected to a hostile work

environment (non-sexual) as evidenced by:

Event 1: February 2008, Michael Clark, MRI Technologist, made a bet with another

employee that he could get rid of Complainant, and threatened him by saying he should

take him outside and "whoop his ass."

Event 2: February 3,2008 through June 1,2008, he was not allowed to take his daily

lunch breaks because his supervisor, Hannah Nishimoto, Administrative Officer, allowed

his co-worker, Bertha Villanueva, to be out of the office for up to 4 hours each day.

Event 3: February 2008 to June 2008, Ms. Nishimoto daily denied his requests to change

his tour of duty.

Event 4: February 2008 to June 2008, Ms. Nishimoto daily denied his requests to work

overtime or earn Compensatory Time.

Event 5: May 5, 2008, Ms. Nishimoto told him that he should seek a reassignment to

another Service and that he would find more opportunities in private industry; and

subsequently, she sent him emails about other job training.

Event 6: May 5, 2008, Ms. Nishimoto denied his request to leave 15 minutes early in lieu

of having missed his break; and then subjected him to sarcastic remarks.

Event 7: May 6, 2008, Ms. Nishimoto harassed him by sending an email message

notifying him of a meeting that was scheduled for the following day.

Event 8: May 2008, Ms. Nishimoto pulled him out of a Timekeeper training class which

she had previously approved him to attend.

Event 9: December 6, 2008, Ms. Nishimoto told him, "lf you want to get any where in the

VA, you have to kiss my ass."

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Event 10: January 9, 2009, Ms. Nishimoto failed to take any action when he reported that

Mr. clark threatened him; saying that he had a gun in his car and that he wanted him to go

outside so he could shoot him.

Event 11: January 2009, Ms. Nishimoto denied his request to attend Planetree training.

Event 12: January 2009, Ms. Nishimoto denied his request to attend systems Redesign

Training.

Event 13: February 9,2009, Ms. Nishimoto failed to take any action when he reported

that Mr. Clark again threatened him.

Event 14: March 24,2009, Dr. El-saden. service chief, made a derogatory statement

about "techs" becoming a little hostile; which he believed was directed at him. During the

same meeting, she said that his (complainant's) issues were addressed so she would not

take any action, and that Herlinda Valdovinos was detailed to the Department because she

is a "fresh face" and a woman can do the job better.

Event 15: April 6, 2009, Ms. Nishimoto berated him and his co-worker, Lorenzo Gaines,

for not providing coverage for the front desk.

Event 16: April 16, 2009, he overheard Ms. Nishimoto say to Ms. valdovinos that she

should not tell him that she was going to Timekeeper class, and she also stated, ,,you

know how he is."

Event 17: Apri|21,2009, Ms. Nishimoto berated him about his "hostile work environment,,

and stated, "l need to talk to you about your little situation, it would be in your best interest";

which he perceived as a threat.

Event 18: April 27, 2009, Dr. El-saden held a staff meeting in which she singled him out

and blamed him for the clinic's failure and problems, including saying that he has made the

clinic inaccessible, and that he should let "Herlinda do what she was brought over to do."

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\-

Event 19: May7,2009, Mr. clark again threatened him; and although he reported it, to

date, management has not taken any action.

Event 20: May 8, 2009, Dr. El-Saden called to inform him that she had a solution to their

problem; which was to move him to a closet in Bldg. 500 away from everyone else. she

told him that if this did not work, she would put him in the area with pAX, as she did not

know what else to do, and that it is easier to get rid of a scheduler than to lose a tech.

Event 21: May 11,2009, Dr. El-saden berated him about his lunch schedule and not

providing coverage.

Evenl22: May 13, 2009, after he suggested that they rotate clinic duties, Ms. Valdovinos

said, "l won't work here. l'm not a slave and you don,t tell me what to do.,,; then Ms.

Nishimoto said that she was in agreement with him; however, because Ms. valdovinos

objected that they should modify the rotation.

Event 23: May 26,2009, he became aware management had decided to modify their

previous agreement to move two desks up front, and alternate duties between him and Ms.

Valdovinos.

Event 24: May 26, 2009, he became aware that Ms. Nishimoto had not been truthful

about receiving permission to rotate their duties from the union.

Event 25: May 28, 2009, he overheard Ms. Nishimoto tell Mr. Lorenzo Gaines that he

should take a detour from him, not get stereotyped with him, and that ,,He has his own

skeletons in his past, if you know what I mean." she cautioned Mr. Gaines to think about

his kids, and told him that as a result of complainant being EEo driven, she had to ask

Human Resources to prepare a request to rotate them.

Event 26: May 28, 2009, when she gave him his Mid-year performance Review Ms.

Nishimoto stated, "You should take the Medical coder class offered at the VA because

outside hospitals are paying big bucks for coders.,,

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Event 27: June 4, 2009, Dr. El-Saden berated him about an overbooked Research

patient.

Event 28: June 5, 2009, Dr. El-Saden denied his request to have a union representative

present before she proceeded with their meeting.

Event 29: June 5, 2009, he received notification that effective June 8, 2009, he was being

detailed to unclassified duties, not-to-exceed 60 days, in Primary and Ambulatory Care

pending completion of an investigation into allegations of inappropriate conduct. (Same

as Claim A, Event 1)

Event 30: June 5, 2009, he received notification that, effective at noon, he was placed on

Authorized Absence. (Same as Claim A, Event 2)

II. STATEMENT OF UNDISPUTED FACTS

1. Complainant is an African American (race), black (color), male (gender) who filed a prior

EEO complaint against Nurse Manager Katherine Woo (from another department) in 2005.

lF, Tab B-1 , pp. 10, 1 1 and Tab C-2.

2. Complainant was initially hired by the VA in 2004. lF,Tab B-1, p. 12.

3. Complainant worked at the VA Greater Los Angeles Healthcare System from February

2008 to June 2009 as a GS-s, Patient Services Assistant in the Imaging/X-ray Department.

lF, Tab B-1, p. 13.

4. Complainant's continuing position description (as a Patient Services Assistant) states

that the incumbent will provide various Lead Patient Services Assistant duties in all

assigned lmaging Program areas at three Southern California Systems of Clinic's facilities

(WLA, Sepulveda OPC and Los Angeles OPC). lF, Tab C-23, p. 909.

5. While working in the lmaging Department, Hannah Nishimoto (RMO1 - Asian, white,

female) was Complainant's supervisor and Dr. Suzie El-Saden (RMO2- Arab American,

white, female) was the Service Chief. lF, Tab B-1, pp. 14-17.

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6. Complainant has occupied his current position as a GS-5, Patient Services Assistant in

Primary and Ambulatory Care, since June 2009. lF, Tab B-1 , p. 13.

7. currently, Desiree Hill (African American, black female) and cad Shannon (African

American, black, male) are Complainant's supervisors. lF, Tab B-1, pp. 14-16.

8. None of the foregoing supervisors had knowledge of complainant's prior EEo complaint

in 2005 (which took place in a different department and involved different supervisors). lF,

Tab B-1, p. 16.

9. complainant believes his managers have heated him unfairly because of his race

(African American), color (black), gender (male) and prior EEo activity (complaint filed

April14,2009). lF, Tab B-1.

10. one of complainant's coworkers is Lorenzo Gaines, (African American, black, male, no

EEo activity) who works as a Patient services Assistant in the lmaging Department and

shared supervisor Nishimoto (RMO1) with Complainant. lF, Tab B-2, pp. 9, 10.

11. Gaines believed the complainant was treated differenily due to his gender by his

supervisor, Ms. Nishimoto. lF, Tab B-2, pp. 15.

12. Gaines believed that the Complainant was subjected to a hostile work environment due

to his gender. lF, Tab B-2, pp. 15.

13. Gaines stated that he was aware that Bertha villanueva (Hispanic, white, female, no

EEo activity), a coworker of the complainant, was often away from the department where

they both worked and he would see her walking around the main hospital . lF, Tab B-2,

pp. 20.

14. Gaines stated that the Complainant was pulled from the timekeeper training class in

May, 2008. Ms. Nishimoto was the only one that could pull him from the class. lF, Tab B-2,

pp. 26.

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15. ln regard to Claims A-1 and B-29, Complainant alleged that on June 8, 2009, he was

detailed by Dr. El-Saden (RMO2) from the lmaging Department to the primary and

Ambulatory Care Department due to inappropriate conduct. lF, Tab B-1 , pp. 16, 17.

16. Complainant believed that his being detailed was disciplinary in nature, because it is

stated that he was detailed for inappropriate conduct. The VA Handbook 5021, states if

someone is detailed for inappropriate conduct its considered a disciplinary action. lF, Tab

B-2, pp. 15..

17. Randolph Jones, chief rechnologist for lmaging services/Radiology is supervised by

Dr. El-Saden, stated that he believed that the Complainant was being detailed as a result

of a disciplinary action. lF, Tab B-7, pp. 13.

18. ln regard to Claims A-2 and B-30, Complainant alleges that on June 5, 2009, he was

placed on authorized absence by Dr. El-saden in conjunction with the detail. lF, Tab B-1,

p.26.

19. complainant stated that he was placed on authorized absence for 4.5 hours on Friday

June 5, 2009, before he started his new detail on Monday June 8, 2009. lF, Tab B-1, p. 26.

20. complainant was placed on authorized leave on June 5, 200g, pending his detail on

June 8,2009. lF, Tab C-7, p.846.

21. Authorized absence meant that complainant was in an off-duty status, but was paid

and not charged any annual or sick leave during that time. lF, Tab C-7, p. 846.

22. ln reference to Glaim B-1, complainant alleges that in February 2008, Michael clark,

MRI rechnologist, made a bet with another employee that he could get rid of complainant,

and threatened him by saying he should take him outside and "whoop his ass.,, lF, Tab

B-1, pp. 29, 30.

22. complainant alleged that he reported this to Randy Jones (RMo3 and chief rech for

the Department), and that Mr. Jones (RMo3) spoke to both him and Mr. clark separately

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and together, but decided to weigh the matter out and see what happens. lF, Tab B-1, p.

32, 33.

23. Jones stated that Clark stated that he had an argument with the Complainant regarding

the scheduling of patients and that he told him that, "we could step outside and do what

men do. Either he whoop my ass or I whip his ass." lF, Tab B-7, pp.21-22.

25. ln reference to Claim B-2, Complainant alleges that from February 3, 20OB - June 1,

2008, he could not take daily lunch breaks because Ms. Nishimoto allowed co-worker

Bertha Villanueva to be out ofthe office for up to four hours each day. lF, Tab B-1, p, 33.

26. ln regard to Claim B-3, Complainant alleges that from February 2008 to June 2008,

Ms. Nishimoto denied his request for a change in his tour of duty. lF, Tab B-1, p.37.

27. No one else requested a change in their tour of duty. lF, Tab B-1 , p. 39.

28. ln reference to Glaim 84, Complainant alleges that from February 2008 to June 200g,

Ms. Nishimoto denied his request to work overtime and offered him compensatory time in

lieu of overtime. lF, Tab B-1, p. 40.

29. Documentary evidence on file indicates that Complainant accrued 3.75 overtime hours

on February 26,2008 and one overtime houron June '17,2008. lF, Tab C-16, pp. 3,4.

30. Documentary evidence on file also indicates that Complainant took/earned 32 hours of

compensatorytimefrom February21,2008, to July 17,2008. lF, Tab C-16, p. 1.

31. ln regard to Claim B-5, Complainant alleges that after inquiring about a "lead" position

in the service, on May 5, 2008, Ms. Nishimoto told him that he should seek reassignment

to another service, that he would find more opportunities in private industry, and later sent

him emails about other job training. lF, Tab B-1, p. 42.

32. Complainant alleges that Ms. Nishimoto said the same thing about seeking upward

mobility in other services to another employee named Herlinda Valdovinos (Race:

Hispanic, Color: Brown, Gender: Female, EEO status: No prior EEO activity). lF, Tab

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B-1, p. 42.

33. Complainant explained that Ms. Nishimoto sent him emails to the effect that because

the service had not yet been given permission to hire a lead, it might be in his best interest

to gather experience in different services or agencies. IF, Tab B-1 , p. 43.

34. Complainant stated that Ms. Nishimoto told him not to limit his possibilities and

explained that certain agencies have better upward mobility programs than the VA. lF, Tab

B-1, p. 43.

35. Nishimoto told the Complainant that if he wanted to move forward, he would have to go

probably out of the Service. lF, Tab B-8, pp.26,27.

36. Mr. Gaines stated that Nishimoto made this comment to the Complainant in his

presence, but did not make this comment to him. Gaines thought this comment was

strange, because the VA usually promotes growth from within the agency. lF, tab B-2, p.

51-52.

37. ln regard to Claim 8-6, Complainant alleges that on May 5, 2008, Ms. Nishimoto

denied his request to leave 15 minutes early in lieu of having missed his break, and then

subjected him to sarcastic remarks. lF, Tab B-1, p. 44.

38. ln regard to Claim B-7, Complainant alleges that alleges that on May 6, 2008, Ms.

Nishimoto harassed him by sending an email message notifying him of a meeting

scheduled the following day. lF, Tab B-1, p. 48

39. Complainant confirmed that the foregoing email was also sent to other comparator

employees, including Lorenzo Gaines and Bertha Villanueva. lF, Tab B-1, p. 48.

40. Gaines explained that the employees are now given notice of a meeting "a month in

advanc€" but in 2008, "everybody was scrambling trying to get the MRI scheduled; so it

could have been a day notice, it could have been a couple of days notice." IF, Tab B-2, pp.

25,26.

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41. ln regard to claim B-8, complainant alleges that in May 2009, Ms. Nishimoto pulled

him out of a timekeeper kaining class that she had previously approved him to attend. lF,

Tab B-1 , pp.50,51.

42. complainant stated that on May 12,2008, Ms. Nishimoto had approved him to attend a

class on June 16, 2008, but later retracted the approval. IF, Tab B-1, p. 51.

43. Mr. Gaines stated that the complainant was pulled from the class and the only one

who could have done it, was Nishimoto. He had previously attended the class. IF, Tab B-2,

pp.26,27.

44. ln regard to claim B-9, complainant alleges that on December 6, 2008, Ms. Nishimoto

told him "if you want to get anywhere in the VA you have to kiss my ass.,, lF, Tab B-1, p.

53.

45. Gaines testified that the Complainant told him that Nishimoto told him that if he wanted

to get anywhere in the vA he had to kiss my ass, and that he couldn't believe that a

supervisor would say such a thing. lF, Tab B-2, pp.2l .

46. ln reference to Claim B-10, Complainant alleges that on January 9, 2009, Ms.

Nishimoto failed to take any action when complainant reported that Michael clark

threatened him, saying that he had a gun in his car and wanted to go outside so he could

shoot him. lF, Tab B-1, p. 54.

47. Complainant explained that as soon as he alerted Ms. Nishimoto to Mr. Clark's threat,

she wrote an immediate email asking Randy Jones and Barbara Biddle to discuss this

incident with their technicians, and stating that "the schedulers are doing what we ask them

to do." IF, Tab B-1, p. 55 and Tab C-10.

48. complainant claimed that Ms. Nishimoto treated Mr. clark more fairly because "he's

been there for almost 30 something years, so I think she shows him that respect because

he's been there a long time." lF, Tab B-1, p. 57.

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49. Randy Jones stated that Complainant did not inform him that Witness Clark threatened

him and said he had a gun in his car, and he did not know if Complainant contacted B. B.,

who was identified as Witness Clark's immediate supervisor; Mr. Jones noted that he only

found out about this alleged incident "after the fact.' lF, Tab B-7, pp.25-27.

50. Ms. Nishimoto testified that Complainant did not come to her about this allegation but

went to Mr. Jones. She added: "lf he had come to me with that kind of a statement, I would

have taken action. If Mr. Clark has a gun, then I need to call the VA Police because guns

on the station are shictly forbidden and illegal, and they would have had to investigate. And

I have no investigation from any VA Police for that." lF, Tab B-8, p. 33.

51. Gaines testified that Mr. Clark came into his office and told him that he did say to the

Complainant that he had a gun in his car and that he was going to take them out and

actually shoot him. lF, Tab B-2, pp. 28.

52. Gaines was a former VA police officer. lF, Tab B-2, pp. 29.

53. Gaines testified that VA employees often don't realize that they can contact the VA

police, instead they believe they are supposed to contact their supervisor. lF, Tab B-2, pp.

29.

54. Gaines testified that the Complainant told him that he had contacted his supervisors

about the threat and not the VA police, as he believed that his supervisors would take care

ofthings. lF, Tab B-2, pp.29,30.

55. Gaines testified that the VA police should have checked to see if Clark had a gun, they

could have run the computer to see if he had a gun. Gaines also testified that Clark did not

say if he did or did not have a gun. lF, Tab B-2, pp. 30.

56. ln regard to Glaim B-11, Complainant alleges that in January 2009, Ms. Nishimoto

denied his request to attend Planetree training. lF, Tab B-1, p. 58.

57. Complainant noted that it was actually Ms. Nishimoto's idea that he volunteer for

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Planetree training. lF, Tab B-1. p. 58.

58. Complainant was not aware that anyone else (beside Mr. Gaines and himself) applied

for the training and was not aware that anyone actually attended the training. lF, B-1 , p.

59.

59. Gaines stated that Ms. Nishimoto denied both him and Complainant attendance at the

Planetree training. lF, Tab B-2, p. 31.

60. The agency in undisputed statement 92, misquoted what Gaines testified to. When

asked why he was denied attendance at the Planetree training, stated "l don't know if it

was because of the coverage over in the main hospital, she really wouldn't go into detail. I

mean, the coverage over near building 507, as far as scheduling, because I believe that

training would have taken us away for approximately a week. He did not say that Nishimoto

said this. lF, Tab B-2, pp. 31.

61. Gaines did not think that he and Complainant were denied Planetree training on the

basis of race, color, or gender. lF, Tab B-2, pp. 31, 32.

62. Valdovinos testified that she requested to attend the Planetree Train-the-Trainer

training and was scheduled to attend it. lF, Tab B-3, pp. 19, 20.

63. ln regard to Claim B-12, Complainant alleges that in January 2009, Ms. Nishimoto

denied his request to attend Systems Redesign training. lF, Tab B-1 , p. 59.

64. Complainant noted that it was actually Ms. Nishimoto's idea that he volunteer for

Systems Redesign training, but that on January 30, 2008, she stated that she was going to

hold off on appointing any coaches. lF, Tab B-1. pp. 59, 60.

65. Complainant did not submit to Ms. Nishimoto an lndividual Development Plan (lDP) as

she had recommended, because he gave her one in December and this took place in

January lF, Tab B-1, p. 60.

66. The Complainant applied for Systems Redsign kaining as she alluded to, but she

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denied this request. She then said there are opportunities for planetree, so he applied for

that and was also turned down. lF, Tab B-1, p. 60.

67. ln reference to Glaim B-13, Complainant alleges that on February 9, 2009, Ms.

Nishimoto failed to take any action when complainant reported that Mr. clark again

threatened him. lF, Tab B-1, p. 54.

68. complainant indicated that when he reported it to Ms. Nishimoto, she referred it to

Randy Jones, who is the direct supervisor of Mr. clark, and no action was taken. lF Tab

B-1, p. 62.

69. Nishimoto stated that complainant may have complained about clark to her and she

"referred the situation to Mr. Jones, who is the direct supervisor of Mr. clark, so we could

get something resolved because I can't do anything to Mr. Clark." lF, Tab B-8, pp. 39, 40.

70. Gaines testified that regarding the threat that clark made to the complainant in

February, 2009, Nishimoto was going on vacation and had been informed of the threat,

and he believed that she told Randy Jones about the threat, but he did nothing about it. .

lF, Tab B-2, p. 33.

71. Gaines further testified that when a serious threat like this is made (coming from a one

who had been a police officer), the person making the threat is normally removed from the

work station and either put in another section or put on administrative leave until the

investigation has been completed. At no time did he see clark away from his work area. .

lF, Tab B-2, p. 33.

72. Gaines testified that he believed that the complainant might have been a victim of

gender discrimination. He also stated that once the complainant let everyone know he was

going to the EEO, it seemed like they started treating him with a little bit more hostile

attitude, "l started noticing, like, wow, they really started treating him bad" . lF, Tab B-2, p.

46.

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73. ln reference to Glaim B-14, Complainant alleges that on March 24,2009, Dr. El-Saden

made a derogatory statement about "techs" becoming a little hostile, which Complainant

believes was directed at him. During that same meeting, she said that his issues were

addressed so she would not take any action, and that Herlinda Valdovinos was detailed to

the department because she was a "fresh face" and a woman can do the job better. lF,

Tab B-1, p.62.

74. Complainant stated that during this meeting Dr. El-Saden addressed backlog issues,

number of daily phone call issues, clinic hours issues, scheduling patients issues and

procedures, and that she also noted that she was aware of the issues going on the in the

clinic and was trying to figure out what to do about them. lF, Tab B-1, pp. 63, 64.

75. Gaines testified that El-Seden stated at the meeting that "techs" were becoming a litfle

hostile because of the work. She also stated that Valdovinos was a "fresh face". He

believed that the meaning was that women could do the job better, and that indicted

possible gender discrimination. lF, Tab B-2, p. 35,36.

76. ln regard to Claim B-15, Complainant alleges that on April 6, 2009, Ms. Nishimoto

berated him and co-worker Lorenzo Gaines for not providing coverage for the front desk.

lF, Tab B-1, pp. 65, 66.

77. Complainant stated that Ms. Nishimoto had spoken to Herlinda Valdovinos and

Lorenzo Gaines in the same manner about the same issue. lF, Tab B-1, p. 67.

78. Gaines testified that the impression he had of the conversation was that "as long as I

let the techs know that we were leaving the front desk to go to lunch and they were willing

to cover, then that would be okay, and when we tried to explain it to Ms. Nishimoto, she

said that it was no longer the way.' lF, Tab B-2, p.37.

79. Gaines noted that Ms. Nishimoto told Complainant and him to "take our lunch breaks

separately, as long as the front desk was covered." lF, Tab B-2, p. 37.

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80. ln regard to Claim B-16, Complainant alleges that on April 16, 2009, he overheard Ms.

Nishimoto say to Ms. Valdovinos that she should not tell him that she was going to

timekeeper class, and she allegedly stated "you know how he is." lF, Tab B-1 , p. 67.

81. Complainant stated that he did not say anything to Ms. Nishimoto or Ms. Valdovinos

about what he allegedly overheard. lF, Tab B-1, p. 68.

82. The Complainant testified that Valdovinos, who was a new hire was allowed to go to

Timekeepertraining and he wasn't. lF, Tab B-1, p. 68.

82. Ms. Nishimoto testified that Ms. Valdovinos attended Timekeeper training in "June or

July orAugust". lF, Tab B-8, p. 43.

83. ln regard to Claim B-17, Complainant alleges that on April 21,2009, Ms. Nishimoto

berated him about his hostile work environment and stated "l need to talk to you about your

little situation, it would be in your best interests," which he perceived as a threat. lF, Tab

B-1, pp. 68, 69.

84. Complainant believed that Ms. Nishimoto was angry because he had filed an EEO

complaint and forthe other basis of discrimination that he had alleged. lF, Tab B-1, p. 70.

85. ln reference to Claim B-18, Complainant alleges that on April 27, 2009, Dr. El-Saden

held a staff meeting in which she singled him out and blamed him for the clinic's failure and

problems, including saying he had made the clinic inaccessible and that he should let

Herlinda Valdovinos "do what she was brought over to do." lF, Tab B-1, p. 70.

86. Gaines testified that he was in this meeting and that it was possible that she made this

statement. lF, Tab B-2, pp. 39.

87. ln regard to Claim B-19, Complainant alleges that on May 7,2009, Mr. Clark again

threatened him, and although he reported it to Randy Jones and, to date management has

not taken any action. lF, Tab B-1, p. 73.

88. The Complainant did contact the VA police and attempt to file a report but was told this

15

was some type of work place harassment and he should contact EEO. lF, Tab B-1 , p. 73.

89. Clark was never spoken to or disciplined by management.

90. ln reference to Claim B-20, Complainant alleges that on May 8, 2009, Dr. El-Saden

called him to inform him that she had a solution to their problem, which was to move him to

a closet in Bldg. 500 away from everyone else. she allegedly told him that if this did not

work, she would put him in the area with PAX, as she did not know what else'to do, and

that it was easier to get rid of a scheduler than lose a tech. lF, Tab B-1 . p. 77.

91. Dr. El-Saden (RMO2) stated that Complainant first agreed to move and she called right

away to get a phone put in "then he called me back and said, 'l don't want to move. He

called me back again and said, 'No, I don't want to move. I didn't do anything wrong., I

said, 'but aren't you scared?' and he goes, 'Well, yes (but) l'm going to stay here. I think

Michael should move."'lF, Tab B-9, pp. 35, 36.

92. Ms. Moore explained that Complainant was detailed because of his own conduct and

his e-mail towards his supervisor, and how he was responding to things. She stated that

he could have been moved to the other desk because, if you're separating employees who

are having a dispute (and) while you're waiting to figure it out, you might normally separate

the person who is allegedly causing the problem; however, sometimes because of patient

care, that's not the most reasonable or efficient thing to do, so the other person might be

moved. lF, Tab B-10, pp. 39,40.

93. ln reference to Claim B-21 , Complainant alleges that on May 11, 2009, Dr. El-Saden

berated him about his lunch schedule and not providing coverage. lF, Tab B-1, p. 80.

94. Gaines explained that when he and Complainant came back from lunch, Dr. El-Saden

"was working the desk (and) asked how come the desk wasn't covered. I actually

explained to her (that) I was under the impression as long as we let the technician know

that we were leaving the front to get a bite to eat, it was okay. We had done that on

16

several occasions when Mr. Clark has said, 'Okay guys, go ahead,'(and) on a couple of

occasions he has actually asked us to bring some food back. She said, 'Okay, if that's the

way you guys have it over here, that's fine. I just want to make sure one way or the other,

the desk is covered."'lF, Tab B-2, pp.4143.

95. Dr. El-Saden sent an email to Complainant on May 11,2009, stating: "Bruce, as I

mentioned earlier today, please refrain from taking breaks and lunch breaks at the same

time as your colleagues so that the front desk and phones in MRI can remain covered

during the day." lF, Tab C-14, p. 871.

96. Complainant replied to the foregoing email by writing to Dr. El-Saden: "l don't recall

anyone complaining about phones, schedules, walk-in's, lunch breaks etc when Bertha

worked here. ls that because you all were busy having Sushi with her during her three hour

lunch visits. Thank you (for the discrimination)." lF, Tab C-14, p. 871.

97. ln regard to Claim B-22, Complainant alleges that on May 13, 2009, after he

suggested that he rotate clinic duties, Ms. Valdovinos said "l won't work here. l'm not a

slave, and you don't tell me what to do." And then Ms. Nishimoto said that she was in

agreement with him; however, because Ms. Valdovinos objected that they should modify

the rotation. lF, Tab B-1, pp. 82, 83.

98. Gaines testified that Valdovinos did not like the idea of working or rotating at the front

desk. lF, TabB-2,pp.44.

ln reference to Claim B-23, Complainant alleges that on May 28,2OOg, he became aware

that management had decided to modify their previous agreement to move two desks up

front and alternate duties between him and Ms. Valdovinos. lF, B-1, pp. 84, 85.

99. Gaines claimed management "originally wanted to move a desk up front for a

volunteer, and the volunteer never showed up, and they had another volunteer come in

twice a week. When that person stopped showing up, that's when they wanted to move

17

Ms. Valdovinos up front with Mr. Mitchell (and) they actually put a smaller desk adjacent to

the printer but she never moved up front." lF, Tab B-2, pp. 44,45.

100. Gaines testified he believed it possible Complainant was treated differently or

subjected to a hostile work environment on the basis of his gender and was retaliated

against for filing an EEO complaint. lF, Tab B-2, pp. 46.

101. ln regard to Claim B-24, Complainant alleges that on May 26,2009, he became

aware that Ms. Nishimoto had not been truthful about receiving permission from the union

to rotate his duties. lF, Tab B-1 , p. 88.

102. ln reference to Glaim B-25, Complainant alleges that on May 28, 2009, he overheard

Ms. Nishimoto tell Gaines that he should take a detour from Complainant, not get

stereotyped with him, and that "he has his own skeletons in the past, if you know what I

mean." She cautioned Mr. Gaines to think about his kids and told him that as a result of

Complainant being EEO driven, she had asked Human Resources to prepare a request to

rotate him. lF, Tab B-1, p.88.

103. Gaines testified that he had this conversation with Nishimoto. lF, Tab B-2, p.48.

104. ln regard to Claim 8-26, Complainant alleges that on May 28,2009, when she gave

Complainant his mid-year review, Ms. Nishimoto stated "You should take the Medical

Coder class offered at the VA because outside hospitals are paying big bucks for coders."

lF, Tab B-1, p.91.

105. Complainant indicated that Ms. Nishimoto made the same comment to Valdovinos. lF,

Tab B-1, p. 91.

106. Gaines was in Nishimoto's office when she made this comment to the Complainant

and not to him. He thought it was strange that she would say this to the Complainant. lF,

Tab B-2, p. 51,52.

107. ln reference to Claim B-27, Complainant alleges that on June 4,2009, Dr. El-Saden

18

berated him about an overbooked research patient. lF, Tab B-1, p. 92.

108. ln regard to claim B-28, complainant alleges that on June 5,2009, Dr. El-Saden

denied his request for a union rep present before she proceeded with the meeting. lF.

Tab B-1, p.95.

109. Dr. El-Saden (RMO2) testified that she was told by Human Resources that she did not

"need a Union representative to give (complainant) a letter of detail." lF, Tab B-9, pp. 44,

45.

110. Dr. El-saden (RMo2) explained that she did not consider the detail a disciplinary

action and claimed she "needed to figure out what was going on and why Herlinda felt so

threatened, and why she was sending e-mails saying management hasn't done anything

about this. Hannah was out of town and I was left with the job.,, lF, Tab B-9, pp. 44, 45.

111. Gaines testified that the Complainant was the victim of gender discrimination by

Nishimoto and Dr. El-Seden and subjected to a hostile work environment in reprisal for his

EEO activity. lF, Tab B-2 p. 54.

112. The complainant filed a second EEo complaint with the agency on April 12, zoog. lF

Mitchell Response to Heuman, July 29, 2009.

I. APPLICABLE LAW

A. Entry of Decision Without A Hearing

The issuance of a decision without a hearj_ng is

warranted if no genuine issues of material fact exist

when the evi-dence is viewed in the Iight most favorable

to the complainant. 29 C"F.R. S1614.L09(q); F.R.C.p.

56; see Anderson v. Liberty Lobby, rnc., 41'l u.s. 242,

255, 106 S.Ct. 2505, 2573-14 (1986); Bang v. Runyon,

EEoc Appeal No. 01961575 (March 26, 1998) at 2. rf

19

a party oppos ing a surTlmary I udgment cannot ',ma ke a

showi-ng sufficient to est.abl-ish the existence of an

element essential to that party's case and on which

that party will bear the burden of proof at trial, the

entry of summary j udgment j_s appropriat e. " Celotex

Corp. v. Catrett, 4'7'7 U.S. 3!1 , 323, L06 S.Ct. 2548

(1e86).

The party oppos ing a mot ion f or sufirmary j udgment

may not simply rest upon allegations in the complaint

but must set forth significantly probative evidence

as to material facts claimed to be disputed requiring

resolution by the fact-finder Simple assertions

invorving subj ective belief or speculation as to

motive, intent, or pretext are insufficient to create

a genuine issue of material fact and thereby defeat

the agency' s sunrmary j udgment motion. Matsushita Elec.

Indus. Co. v Zenith Radio Corp., 4'/5 U.S. 51 4 (198G);

see aLso Pj-zarro v. Department of Commerce/ EEOC Appeal

No. 01942406 (1995) cit.ing Cel-otex Corp. I supra. Lay

opinionr ox generalized testimony as to an emptoyeers

subj ective belief that discrimination occurred, is

insufficient to make a triable i-ssue in the face of

proof showing an adequate nondiscriminatory reason for

the employer's action. cassino v. Reichotd chemicars,

Inc., BLl F.2d 1338, 1345 (9th Cir. 1981), cert. denied,

484 u. s . 7041 (1988 ) . Purely concrusory al-l-egations

of discrimination, with no concrete, relevant

20

particulars, will not bar surnmary j udgment. Forsberg

v. Pac j-f ic Northwest Bel-1 Telephone Co. , B 4 0 F .2d 1409 ,

1415 (9th Cir. 1986) The complainant also cannot

withstand summary disposition simply by expressing an

intent to challenge the credibility of the agency, s

witnesses on cross-examination. Lindahl v. Air France,

930 F.2d 1434 ( 9th Cir . 7991 ) .

B. Tit1e VfI Disparate Treatment

Section 171 of Title VIT of the Civil_ Rights Act

of 7964, as amended by the Equal Employment opportunity

Act of ]_91 2 ( "Title VII" ) t prohibits discrimination

in federal employment based on race, coIor, religlon,

gender, and national origin. 42 U.S.C. 52000e-16.

To prevail in a disparate treatment case/ proof

of discriminatory motive is critical. rnternational

Bro. of Teamsters v. U. S , 437 U. S . 324, 335 n. 15

(7991 ) . Direct evidence of discrj-minatory intent is

sufficient to establish a prima facie case of disparate

treatment; however, where the prima facie case is based

on indirect or circumstantial evidence, the complainant

bears the initial burden of showing that ( 1 ) he or she

is a member of a protected crass; (2) was subject to

an adverse employment action; and (3) si_mj_larly

situated employees outsj-de complainant's protected

cl-ass were treated more

21

favorably in Iike

circumstances. Behar v. United States postal Service,

EEOC Request No. 05940181 (June 2, 1995); Gay v.

waiters' and Dairy Lunchmen's union, 694 E.2d 531, 531

(9tn Cir . LgB2) ; see al-so St. Mary' s Honor Ctr. v. Hicks,

509 u.s. 502, 507 (1993) (reaffirming and crarifying

McDonnell Douglas Corp. v. Green , 4l\ U. S . j 92, BO2

(7e7 3)) .

rf the complaj-nant succeeds in estabrishing a

prima facie case of disparate treatment, there is a

presumpt.ion that the Agency unlawfully discriminated

against the comprainant. Te@of communi_qy

Affairs v. Burdine 450 U. S . 248, 254 (1981) That

presumption shifts the burden of production to the

Agency to rebut the prima facie case by producing

evidence that the employment decision was made for

regitimate, non-discriminatory reasons . rd. should

the Agency produce such evidence, the complainant must

then demonstrate that the proffered reason j_s a pretext

for a discriminatory motive. Id. at 256.

rn order to state a priqta facie case of reprisar,

the complainant must show that ( 1 ) he or she engaged

in prior EEo activity, (2) a relevant agency official

was aware of the protected activity, ( 3 ) there was a

subsequent adverse agency action, and (4) the agency

action closely followed the protected activity such

that a retaliatory motive can be inferred. Barnes v.

22

Small, 840 E.2d 9'72, 91 6 (D.C Cir. 19BB) ; YarLzoff

Thomas, 809 E.2d 7317, 1,31 6 (gtn cir. 1981 ); Hicks

v. United States Postal Servi ce , EEOC Request No

0593A11 4 (June 23, L994) If the complainant is able

to establish a prima facie case of discrimlnatory

reprisal, the burden shif t.s to the Agency to either

disprove the essential el-ements of the prima facie case

or establish a legitimate, non-discriminatory reason

for its action. The burden then shifts back to the

complainant to show t.hat such reason was pretextual .

McDonnell Dougras corp. v. Green, 4LL u.s. 192 (1973) .

An employer's challenged action constitutes an

adverse emproyment action if it "wou1d have been

material to a reasonable employea," and llkely would

have *dissuaded a reasonabl-e worker from making or

supporting a charge of discriminat LoTt. " Burli-ngton

Northern Santa Fe Railway co. v. white , 126 s . ct . 2405

(2006) (adopting the adverse action standard that had

been used by the Seventh and District of corumbia

Clrcuits and rej ecting ultimate employment decisions

approach) . See also washington v. rllinoi-s Department

of Revenue, 420 F.3d 558, 662 (7th Cir. 2005); Rochon

v. Gonzales, 438 F"3d 72t1, 7211-IZLB (D.C. Cir. 2006) .

See al-so Ray v. Henderson , 2l1 F. 3d L234 , 1243 (9th

cir. 2000) (employer conduct qualifies as retariation

in violation of Title vrr if it is "reasonably likely

to deter employees from engaglng in protected

23

act ivity" ) .

ln White, Sheila White was hired as a track maintenance laborer by Burlington

Northern Santa Fe Railroad. For the first three months of her employment, she was

assigned to operate a forklift, which is less physically demanding and cleaner than other

track work. After she filed a sexual harassment claim against her foreman, she was

removed from her forklift duties and assigned to more physically demanding and dirtier

hack maintenance work, and later she was suspended without pay (although later

reimbursed) for insubordination toward a supervisor. The Court, while emphasizing that the

analysis must be conducted on a case-by-case basis, decided that the new assignment

and the suspension without pay were materially adverse to White. ld. at2416-18.

Employment actions that could be materially adverse include lateral transfers,

unfavorable job references, changes in work schedules, and elimination of a flexible

start-time policy. Rav 217 F.3 d at 1243-44. These changes decrease an employee,s pay,

have a substantial impact on future employment and other negative consequences. ld.

Further examples of adverse employment actions include termination, issuance of an

undeserved negative performance review, and refusal to consider an employee for

promotion. See Brooks v. Citu of San Mateo , 229 F.3d 917 , g2B-29 (9th Cir. 2000).

C. Title Vll - HarassmenUHostile Work Environment

Title vrr makes it unlawfur for an employer to

harass an employee based on membership in a protected

class. 42 U.S.C. 52000e-2(a); Sanchez v. City of

Santa Ana , 936 E.2d LO21 , 1037 (9tn Cir. 1990 ) . To

establish a prima facie case of discriminatory

harassment, the complainant must, establish the

existence of a hostile work environment. Harris v.

24

Forklift Systems, Inc., 510 U. S . 11, 2l (1993) citinq

Meritor Savings Bank v. Vinson, 417 U.S. 5J, 67

(1986). An employer is 1iab1e under TitIe VII for

conduct giving rise to a hostile work environment if

the complainant proves ( 1 ) that he or she was subj ected

to verbal or physj-cal conduct of a harassing nature,

(2) that this conduct was unwelcome, and (3) that the

conduct was sufficiently severe or pervasive to alter

the conditions of the complaj-nant's employment and

create an abusive working environment. Kortan v.

!_g_f ifornia Voutir autLo , 211 F.3d 1104, 1109-1110

(9tn Cir . 2000) . In determining whether the challenged

conduct constitutes an actionable hostile work

environment, courts must consider "all the

circumstances, incl-uding the ' f requency of the

discriminatory conduct; its severity; whether it j-s

physically threatening or humiliating r or a mere

of f ensive utt,erance; and whether it unreasonably

interfere s

performance. t "

wi th an employee's work

Faragher v. City of Boca Raton , 524

U.S. 1'75, lBG (1998) quoting Harris, 510 U.S. at 23.

25

IV. ARGT'MENT

St MIIIARY .TUDGMENT IS NOT }IARRAI{TED SINCE THE COMPLAINA}IT CAIit

PROVTDE STGNTFICAT{T, PROBjA,TI\IE EVTDENCE SUPPORTTNG HrS CLArM OF

DTSCRTMINATTON OR IIARA,SSMENT BASED ON RACE, COLOR, GENDER OR

REPRISAL.

A. Complainant Has Estab].ished A Prima Facie Case OfDiscrimination On The Basis of Race, Color, Gender Or Reprisal..

To establish a prima faeie case of racial, color, gender or

reprisal--based discrimination, the complainant bears the initiat

burden of showing that (1) he or she is a member of a protected class;

(2) was subject. to an adverse employment action; and (3) similarly

situated employees outside complainant's protected class were treated

more favorably in like circumstances. Behar v. United States Postal

Service, EEOC Request No. 05940781 (June 2, 7995); Perryman v. Johnson,

698 F.2d 1138 (11th Cir. 7983) ; Lawson v. Secretary of the Treasury,

2002 EEOPUB LEXIS 2668 (April 20, 2002); see also Gomez v. Henderson,

Postmaster, U.S. Postal Service, 2002 U.S. App. LEXIS 5100 (March 22,

2002).

At the t j-me of the complaint, Complainant was a GS-5, Patient

Services Assistant in the Imaging/X-ray Department. IF, Tab B-1, p.

13 . He is a black (color ) Af r j-can American (race ) male (gender ) who

filed a prior EEO complaint against Nurse Manager Katherine Woo ( from

another department ) in 20A5 . IF, Tab B-1, pp. 10 , LL and Tab C-2 .

The Complainant filed a second EEO complaint on April, 14, 2009.

fn his complaint, Complainant alleged that because of his race

26

(Afri-can American) , color (BIack) , gender (Male) and in reprisal- for

prior EEO activity, he was placed on 4.5 hours of authorized absence

and temporarily detailed by Dr. El-Saden from the fmaging Department

to the Pri-mary and Ainbul-atory Care Department due to inappropriate

conduct. IF, Tab B-1, pp. 16, Ll .

Complainant indicated that Michael Clark (male, African American,

brown-s kinned, no EEO activity) and Herlinda Valdovinos ( female,

Hispanic, brownr ro EEO activity) were treated more favorably than

he by not being detailed or placed on administratj-ve leave. f F, Tab

B-1, pp. 19-22, ffidle) . Exhibit 3.

In regard to reprisal- based on prior EEO activj-ty, Complainant

alleges that management discriminated against him for filing a prior

EEO case on April 74, 2009. Lorenzo Gaines corroborated his allegation

that management retafiated against him after he fifed his EEO complaint

in Apri1, 2009.

B. Assuning Comp]-aiaant Has Estalrlished A Prina Facie Case OfDiscrimination, The Agency Has Not Provided tegitj-rlate,Non-Discriminatory Reasotls For Its Action Ihat Has Been Rebutted ByThe Complainant.

Assuming, arguendo, that the Complainant has made a pri',a. facie

showing, the Agency can stifl prevail for purposes of a motion made

pursuant to 29 C.E.R. 51614.109(g) , if it can show undisputed evidence

of a "legitimate, nondiscriminatory reason" for the Compfainant's

treatment. See Jackson v. Runyon, EEOC Appeal No. 01954859 (August

23, L996) .

In regard to Claim A, Event 1, Comp.Iainant avers that on June

8, 2009, he was detailed by Dr. Ef-Saden (RMO2) from the Imaging

Department to the Primary and Ambul-atory Care Department due to

27

inappropriate conduct. IF, Tab B-1, pp. L6, 7J .

As the agency states that the Complainant was detailed pending

completion of an investigation into allegations of inappropriate

conduct. Thus the detail was taken as a disciplinary action.

Chief of Employee /Labor Relat j-ons, Mary Moore, testif ied that

Complainant was detailed to Primary and Ambulatory Care because his

conduct in the work area had been escalating and was becoming

disruptive/ coupled with atlegations of a hostile work environment

by and against him.

Employment conduct qualifies as retaliation in violation of Title

VII if it is "reasonably likety to deter employees from engaging in

protective activity. Employment actions that could be materially

adverse i-nclude lateral transfers. Ray 2L1 E.3d at L243-1244. It should

be noted that Mr. Clark, who the Complainant al-leged that threatened

him with bodily harm was not detailed or placed on administrative

leave.

In regard to Claim A, Event 2, Complainant alleges that on June

5, 2009 , he was placed on authori zed absence for 4 . 5 hours by Dr .

El-Saden (RMO2), before he started his new detail on Monday June B,

2009 . IF, Tab B-1, p . 26 . Documentary evidence demonstrates that

Complainant was placed on authorized leave on June 5, 2009, pending

his detail on June B, 2009. IF, Tab C-1, p. 846. Authorized absence

meant that Complainant was in an of f -duty st.at.us, but was paid and

not charged any annual or sick leave during t.hat time. IE, Tab C-J ,

p. 846.

The undisputed facts and applicable case Iaw demonstrate that

28

the Agency had no legitimate, non-discriminatory reasons for its

actions . In t.he currenL case / adverse action was taken aqainst

Complainant by detailing him temporarily. The terms, conditions and

privileges of Complainant' s employment were affected by his

assignment to this position. As Mary Moore and Ms. Nishimoto t.estif ied

this detail was caused by allegati-ons that the Complainant caused

a hostile work environment and thus was moved against his will. Even

though the Complainant alleged that a co-worker, Mr. Clark threatened

him 3 times with serious bodily harm, no action was taken against

him. AIso the complainant had filed an EEO Complaint against

management on April L4, 2009. It is obvious that the actlon taken

against the Complainant was in retaliation for filing his EEO

complaint.

C. CompJ.ainant Has EstabJ.ished a Case of Hosti1e Work Enwironmenton the Basis of Race, Color , Gender or Reprisal..

To assert a cause of action for a hostile work environment,Complainant must present facts that actions by Ms. Nishimoto, Dr.EI-Saden, Mr. Jones or Ms. Moore constituted discriminatory conductthat was so severe or pervasive that it created a work environmentabusive to Complainant because of his race r color, gender or priorEEO activity. In determining whether such an environment existed,we must consider whether a reasonable person j-n the Complainant' s

circumstances would have found the alleged behavior to be hostileor abusive. To this endr we must look at the frequency of thediscriminatory conduct, its severity, whether it j-s physicallythreateni-ng or humiliating, and whether it unreasonably interferedwith Complainant's work performance. Converse v. Postmaster General,EEOC Appeal No.0191851 (July 2J, 2001). The Supreme Court has statedthat, "conduct that is not severe or pervasive enough to create an

obj ectively hostile work environment-an envi-ronment that a

reasonable person would find hostile or abusive-is beyond Title VII's

29

purview." Harris v. Eorklift Systems, Inc., 510 U.S. l1, 22 (1993) .

Thus, not all claims of harassment are actionable.In this respect, the record is shows evidence revealing that

members of management harassed and made disparaging remarks orcomments about Complainant's race r color, gender or protected priorEEO activity from 2005.

In reference to harassment CJ.aim B-1, Complainant alleges thatin February 2008 , Michael Clark, MRI Technologi-st, made a bet withanother employee that he could get rid of Complainant, and threatenedhim by saying he should take him outside and "whoop his ass." IF,Tab B-1, pp. 29, 30. Complainant alleged that he reported this toRandy Jones and Chief Tech for the Department ) , and that Mr. Jones

spoke to both he and Mr. CIark separatefy and together, but decidedto weigh the matter out and see what happens. f F, Tab B-1, p. 32,

Gaines, testif ied that Cl-ark told him that he did threaten theComplai-nant. Gaines also told him that Clark had threatened him witha gun and that he would physically harm him.

With respect to C1aim B-2, Complainant alleges that from

February 3 , 2008 June l, 2008 , he could not. take daily lunch breaksbecause Ms. Nishimoto allowed co-worker Bertha Villanueva to be outof the office for up to four hours each day. IE, Tab B-1, p, 33.

Gaines testified that he would see Villanueva away from theirwork area in other parts of the hospital and would be away for longperiods of time away from their work station.

With regard to CLaim B-3, Complainant alleges that from February

2008 to June 2008, Ms. Nishlmoto denied his request for a change

in his tour of duty. IF, Tab B-1, p. 31. He noted that no one elserequested a change in their tour of duty. IF, Tab B-1, p. 39. Ms.

In reference to CJ.aim B-4, Complainant alleges that from

February 2008 to June 2008, Ms. Nishimoto denied his request to work

overtime and offered him compensatory time in lieu of overtime.IF, Tab B-1, p. 40. The documentary record backs his allegationsup, as he was only gj-ven 4.15 hours of overtime.

30

Documentary evidence on file indicates that Complainant accrued3.75 overtime hours on February 26,2008 and one overtime hour onJune L1 , 2008 . IF, Tab C-16, pp. 3, 4 . Documentary evidence alsoreveal-s that Complainant took/ earned 32 hours of compensatory timefrom Eebruary 21, 2008, to Jury 7J, 2008. rF, Tab c-16, p. 1.

In regard to Claim B-5, Complainant alleges that af ter inqui-ringabout a "lead" position j-n the service, on May 5, 2OOB, Ms. Nishimototold him that he should seek reassignment to another service, thathe would find more opportunities in private industry, and later senthim emails about other lob training. IF, Tab B-1, p. 42. Complainantal-leges that Ms. Nishimoto said the same thing about seeking upwardmobility in other services to another employee named HerlindaValdovinos (Race: Hispanic. Color: Brown, Gender: Female, EEO

status: No prior EEo activity) . rE, Tab B-1, p. 42. complainantexplained that Ms. Nishimoto sent him emails to the effect thatbecause the service had not yet been gj-ven permission to hire a Iead,it might be j-n his best interest to gather experience in differentservices or agencies. IF, Tab B-1, p. 43. Complainant stated thatMs. Nishimoto told him not to limit his possibilities and explainedthat certain agencies have better upward mobility programs than theVA. fF, Tab B-1, p . 43.

Gaines stated that he heard Nishimoto make this statement tothe Complainant and thought it strange, as the idea was to improveoneself for promotion at the VA and not somewhere else. The recordis clear that. Nishimoto denied the Complainant's request to attendtraining classes, but atlowed Valdovinos to attend timecard trainingsoon after she arrived in the unit. IF B-2, p. 51.

fn regard to ClaimB-6, Complainant alleges that on May 5, 20OB,

Ms. Nishimoto denied his request to leave 15 mj-nutes early in lieuof having missed his break, and then subjected him to sarcasticremarks. IF, Tab B-1r p . 44.

In regard to Claim B-7, Complainant atleges that all-eges thaton May 6, 20OB, Ms. Nishimoto harassed him by sending an email messagenotifying him of a meeting scheduled the following day. IF, TabB-1, P. 48. Complainant confirmed that the foregoing email was also

31

sent to other employees/ Lorenzo Gaines and Bertha ViIlanueva. IF,Tab B-l-, p. 48.

Gaines explained that the employees are now given notice ofa meeting "a month in advance" but tn 2008, "everybody was scramblingtrying to get the MRI scheduled; so it could have been a day notice,it could have been a couple of days not i-ce . " f F, Tab B-2, pp . 25 ,

26.

Ms. Ni-shimoto indicated that she has to send all of her staf fe-mails because she works in a different building. She noted thatshe sent Compl-ainant an e-mail on May 5tn, 2OOB, saying she "wouldbe in (his) building May 10th Lo discuss some issues" and that he

actually answered her on that same day. rF, Tab B-8, pp. 28-30.In regard to Claim B-8, Complainant alteges that in May 2008,

Ms. Nishimoto pulled him out of a timekeeper training cl-ass thatshe had previously approved him to attend. TE, Tab B-1, pp. 50,

51 . Complainant clarif ied t,hat on May !2 , 2008 , Ms . Nishimoto had

approved him to attend a class on June L6, 2008 , but later retractedthe approval. IF, Tab B-1, p. 51.

As stated above, Nishimoto denied the Complainant timekeepertraining and granted it to his co-worker soon after she transferredinto the uni-t.

In regard to Claim B-9, Complaj-nant alleges that on December

6, 2008, Ms. Nishimoto totd him "if you want to get anywhere in theVA you have to kiss my ass." fF, Tab B-1, p. 53.

Ms. Nishimoto (RMO1) testified that she "never" made this orany simil-ar comment to complainant,. rF, Tab B-8, pp. 31, 32.

Gaines testified that the Complainant tol-d him that Nishimoto made

this comment to him. IF, Tab B-2, pp. 21.

ln reference to Claim B-10, Complainant alleges that on January 9,2009, Ms.

Nishimoto failed to take any action when Complainant reported that Michael Clark

threatened him, saying that he had a gun in his car and wanted to go outside so he

could shoot him. lF, Tab B-1, p. 54. Complainant explained that as soon as he

alerted Ms. Nishimoto to Mr. Clark's threat, she wrote an immediate email asking Randy

Jones and Barbara Biddle to discuss this incident with their technicians, and stating that

"the schedulers are doing what we ask them to do." lF, Tab B-1, p. 55 and Tab C-10.

32

Complainant claimed that Ms. Nishimoto treated Mr. Clark more fairly because

"he's been there for almost 30 something years, so I think she shows him that respect

because he's been there a long time." lF, Tab B-1, p.57.

Gaines testified that Clark stated he did threaten the Complainant. He further

testified as a former VA police officer that Clark should have been sent to another unit

away from the Complainant or but on administrative leave and an investigation conduct.

Management took neither of these actions. IF, Tab B-2, pp. 28.

The agency has a zero tolerance policy regarding threats of physical harm to

employees, yet the Complainant testified that Clark made three threat against him and

management did nothing about it. Yet, he was detailed when a female co-worker

complained about him creating an alleged hostile work environment.

ln regard to Claim B-l l,Complainant alleges that in January 2009, Ms.

Nishimoto denied his request to attend Planetree training. lF, Tab B-1, p. 58.

Complainant noted that it was actually Ms. Nishimoto's idea that he volunteer for

Planetree training. lF, Tab B-1 . p. 58. Complainant was not aware that anyone else

(beside Mr. Gaines and himself) applied for the training and was not aware that anyone

actually attended the training. lF, B-1, p. 59. lt is undeniable that he was not allowed

to attend either this or any other training session he requested and Valdovinos was.

Gaines stated that Ms. Nishimoto denied both him and Complainant attendance

at the Planetree training "because of the coverage over in the main hospital as far as

scheduling. That training would have taken us away from approximately a week." lF,

Tab B-2, pp. 31, 32. Gaines did not think that he and Complainant were denied

Planetree training on the basis of race, color, or gender. lF, Tab B-2, pp. 31, 32,

Valdovinos testified that she requested to attend the Planetree Trainthe-Trainer

training and "on one occasion we scheduled it at the same time (and) date, so I moved

my date to accommodate (Complainant). I haven't even attended the training (to) this

day because every time I schedule something, something comes up where I have to

either cover someone or I have something to do." lF, Tab B-3, pp. 19,20.

In regard to Claim B-12, Complainant alleges that in January 2009, Ms.

Nishimoto denied his request to attend Systems Redesign training. lF, Tab B-1, p. 59.

Complainant noted that it was actually Ms. Nishimoto's idea that he volunteer for

Systems Redesign training, but that on January 30,2008, she stated that she was

going to hold off on appointing any coaches. IF, Tab B-1. pp. 59, 60. Complainant

33

did not submit to Ms. Nishimoto an lndividual Development Plan (lDP) as she had

recommended because he had submitted one a month before. lF, Tab B-1 , p. 60.

Nishimoto always had an excuse to explain her constant denial of training to the

Complainant, yet she approved training for Valdovinos. She claimed she encouraged

the Complainant to take courses to enhance his changes for promotion, yet constantly

denied his requests for trumped reasons.

ln reference to Claim B-13, Complainant alleges that on February 9,2009, Ms.

Nishimoto failed to take any action when Complainant reported that Mr. Clark again

threatened him. lF, Tab B-1, p. 54. Complainant indicated that when he reported it to

Ms. Nishimoto, she referred it to Randy Jones, who is the direct supervisor of Mr. Clark.

lF Tab B-1 , p. 62.

Gaines stated that Clark told him that he did say to the Complainant that he did

have a gun out in the car and that he was going to take them out and actually shoot

him. lF, Tab B-2, pp. 28.

ln reference to Claim B-14, Complainant alleges that on March 24, 2009, Dr.

El-Saden made a derogatory statement about "techs" becoming a little hostile, which

Complainant believes was directed at him.

Gaines stated that El-Seden did state that "techs" were becoming hostile and

that Herlinda Valdovinos was a "fresh face" he too that to mean that women can do a

better job then men. lF, Tab B-2, p. 35,36. Gaines believe Complainant was subjected

to a hostile work environment on the basis of his gender because El-Seden stated that

a woman could do the job better. IF, Tab B-2, p. 36.

ln regard to Glaim B-15, Complainant alleges that on April 6, 2009, Ms.

Nishimoto berated him and co-worker Lorenzo Gaines for not providing coverage for

the front desk. lF, Tab B-1, pp. 65,66. Complainant stated that Ms. Nishimoto had

spoken to Herlinda Valdovinos and Lorenzo Gaines in the same manner about the

same issue. lF, Tab B-1, p. 67.

Gaines testified that the impression he had of the conversation was that "as

long as I let the techs know that we were leaving the front desk to go to lunch and they

were willing to cover, then that would be okay, and when we tried to explain it to Ms.

Nishimoto, she said that it was no longer the way." lF, Tab B-2, p. 37. Gaines noted

that Ms. Nishimoto told Complainant and him to "take our lunch breaks separately, as

long as the front desk was covered." !F, Tab B-2, p.37.

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ln regard to Claim 8-16, Complainant alleges that on April 16, 2009, he

overheard Ms. Nishimoto say to Ms. Valdovinos that she should not tell him that she

was going to timekeeper class, and she allegedly stated "you know how he is," lF, Tab

B-1 , p. 67. Complainant stated that he did not say anything to Ms. Nishimoto or Ms.

Valdovinos about what he allegedly overheard. IF, Tab B-1 , p.68. Valdovinos did

attend the timekeeper class, the Complainant was not allowed to attend.

Ms. Nishimoto testified that Ms. Valdovinos attended Timekeeper training in

"June or July or August". lF, Tab B-8, p. 43.

ln regard to Glaim B-17, Complainant alleges that on April 21 ,2009, Ms.

Nishimoto berated him about his hostile work environment and stated "! need to talk to

you about your little situation, it would be in your best interests," which he perceived as

a threat. lF, Tab B-1, pp. 68, 69. Complainant stated that Ms. Nishimoto actually came

to his desk and asked him to come sit and talk about his situation because she did not

want him to have a hostile work environment. lF, Tab B-1 , p. 69.

ln reference to Claim B-18, Complainant alleges that on April 27,2009, Dr.

El-Saden held a staff meeting in which she singled him out and blamed him for the

clinic's failure and problems, including saying he had made the clinic inaccessible and

that he should let Herlinda Valdovinos "do what she was brought over to do." IF, Tab

B-1, p. 70.

Gaines testified that he was in this meeting but could not recall what was said,

but it was possible that she did say it. lF, Tab B-2, pp. 39.

ln regard to Glaim B-19, Complainant alleges that on May 7,2009, Mr. CIark

again threatened him, and although he reported it, to date management has not taken

any action. lF, Tab B-1 , p.73.

Gaines testified that like "with all the threats Mr. Clark hasn't been removed from

the work space, and I haven't seen anyone do anything about it. So it does seem like

management has taken no action. lF, Tab B-2, pp. 39.

ln reference to Claim B-20, Complainant alleges that on May 8, 2009, Dr.

El-Saden called him to inform him that she had a solution to their problem, which was to

move him to a closet in Bldg. 500 away from everyone else. She allegedly told him that

if this did not work, she would put him in the area with PAX, as she did not know what

else to do, and that it was easier to get rid of a scheduler than lose a tech. lF, Tab

B-1. p.77.No such action was taken by management to move Clark.

35

El-Saden stated that Complainant first agreed to move and she called right away

to get a phone put in "then he called me back and said, 'l don't want to move. I think

Michael should be the one to move.' I said, 'Well, l'm most worried about your welfare

right now and I only have one place to put a technologist, and until I can look into this

why don't we move you out of there so I can get you away from him.' I only have two

magnets, and Michael Was most familiar with the magnet he was working at out in 507,

(and) 'if I bring you up here, all I need is a phone and a fax machine.' He called me

back again and said,'No, I don't want to move. I didn't do anything wrong.' I said,

'but aren't you scared?' and he goes, 'Well, yes (but) l'm going to stay here. I think

Michael should move."' lF, Tab B-9, pp. 35, 36. Management never took the threats of

Clark seriously, contrary to its own regulations regarding threats in the work place.

Gaines testified that all the techs performed the same duties. lF B-2, p. 41 .

ln reference to Claim B-21, Complainant atleges that on May 11, 2009, Dr.

El-Saden berated him about his lunch schedule and not providing coverage. lF, Tab

B-1, p. 80.

Gaines explained that when he and Complainant came back from lunch, Dr.

El-Saden "was working the desk (and) asked how come the desk wasn't covered. I

actually explained to her (that) I was under the impression as long as we let the

technician know that we were leaving the front to get a bite to eat, it was okay. We

had done that on several occasions when Mr. Clark has said,'Okay guys, go ahead,'

(and) on a couple of occasions he has actually asked us to bring some food back. She

said, 'Okay, if that's the way you guys have it over here, that's fine. tjust want to make

sure one way orthe other, the desk is covered."' !F, Tab B-2, pp.41-43.

ln regard to Glaim B-22, Complainant alleges that on May 13, 2009, after he

suggested that he rotate clinic duties, Ms. Valdovinos said "l won't work here. l'm not a

slave, and you don't tell me what to do." And then Ms. Nishimoto said that she was in

agreement with him; however, because Ms. Valdovinos objected that they should

modify the rotation. lF, Tab B-1, pp. 82, 83.

Gaines said that he didn't have a problem with rotating clinic duties, but

Valdovinos did. lF, Tab B-1, pp 44.

ln reference to Claim B-23, Complainant alleges that on May 28, 2009, he

became aware that management had decided to modify their previous agreement to

move two desks up front and alternate duties between him and Ms. Valdovinos. IF,

36

B-1, pp. 84, 85.

Gaines claimed management "originally wanted to move a desk up front for avolunteer, and the volunteer never showed up, and they had another volunteer come in

twice a week. When that person stopped showing up, that's when they wanted tomove Ms. Valdovinos up front with Mr. Mitchell (and) they actuatly put a smaller desk

adjacent to the printer but she never moved up front." lF, Tab B-2, pp.44,45. Gaines

believed Complainant was treated differently or subjected to a hostile work environment

on the basis of gender and due to his "letting everyone know that he was getting ready

to go to the EEO, it seemed like they started treating him with a little bit more hostile

attitude. lF, Tab B-2, pp. 46.

ln regard to Claim B-24, Complainant alleges that on May 26,200g, he became

aware that Ms. Nishimoto had not been truthful about receiving permission from the

union to rotate his duties. lF, Tab B-1, p. 88.

In reference to Glaim B-25, Complainant alleges that on May 28, 2009, he

overheard Ms. Nishimoto tell Lorenzo Gaines that he should take a detour from

Complainant, not get stereotyped with him, and that "he has his own skeletons in the

past, if you know what I mean." She cautioned Mr. Gaines to think about his kids and

told him that as a result of Complainant being EEO driven, she had asked Human

Resources to prepare a request to rotate him. lF, Tab B-1 , p. 88.

Gaines stated that Nishimoto did make these statements to him. tF, Tab B-2, pp.

48.

ln regard to Claim B,-26, Complainant alleges that on May 28, 2OOg, when she

gave Complainant his mid-year review, Ms. Nishimoto stated "You should take the

Medical Coder class offered at the VA because outside hospitals are paying big bucks

for coders." lF, Tab B-1 , p. 91. Complainant indicated that Ms. Nishimoto made the

same comment to Valdovinos. lF, Tab B-1, p. 91.

Gaines testified that Nishimoto made the comment directly to the Complainant

and not him, and has not made similar statements to him. He further thought it strange

that she would mention outside employment when they usually promote growth within

the VA. lF, Tab B-2, pp. 52.

ln reference to Claim B-27, Complainant alleges that on June 4, 2009, Dr.

El-Saden berated him about an overbooked research patient. IF, Tab B-1, p.92.

Every time Valdovinos made a complaint about the Complainant, management

37

(Nishimoto and El-Seden always could not look into the alleged problem too soon.

Ms. Moore (RMO4) testified that "this is the issue where Mr. Mitchell did

overbook some patients and El-Saden) was going to conduct a Fact-Finding." lF, Tab

B-10, pp. 44, 45.

ln regard to Claim B-28, Complainant alleges that on June 5, 2009, Dr.

El-Saden denied his request for a union rep present before she proceeded with the

meeting. lF. Tab B-1, p. 95.

Management claimed the detail was not disciplinary yet Ms. Moore stated that

Complainant's detail pending a Fact-Finding investigation and was done so because he

was accused of creating a hostile work environment.

Ms. Moore believed Complainant "was, in fact, subjecting others to hostile

behavior. Whether or not it rose to a hostile work environment, I couldn't say (but) I

believe that Mr. Mitchel!'s conduct towards others was hostile." lF, Tab B-10, pp. 18 -19.

Management stated it's been the practice here to separate the employees that

are involved or subject to the allegation (of a hostile work environment. Allegations

against Mr. Mitchell were treated with great gravity, yet the threats against the

Complainant of serious bodily harm be Clark were treated as a disagreement between

co-workers and not treated in the same fashion as the allegations made by the

Com p lai nant's co-workers

Harassment must be more than common workplace events, frictions, or incidents

that merely result in hurt feelings. "Harassment, as the term is used in Title Vll cases,

refers to more than being bothered or subjected to stress." Cruz. V Dept. of Defense,

EEOC Appeal No. 01951912 (August 2, 1996).

The Complainant was subjected to a long and continuing hostile work

environment by management. He testified that Nishimoto told him that if he wanted to

get ahead in the VA, you have to kiss my ass. Gaines stated that Mitchell told him what

Nishimoto said to him and that he was upset. lF, Tab B-2,pp.27.

The Complainant and Gaines testified that they believed that he was the victim

of gender discrimination and retaliation for filing an EEO Complaint in April, 2009. The

Complainant and Gaines believed that the statements about Valdovinos being a "fresh

face" were indicative of discriminatory animus based on gender. The threats against the

Complainant by Clark were treated as if they were trivial and of no consequence. Yet

38

any allegations by female co-workers of the Complainant were treated with greater

gravity and weight.

This was no mere dysfunctional workplace but a concerted effort by

management to treat the Complainant in an illegal manner to justify a finding of a

hostile work environment by harassment in terms of the Harris standard. See Ford v.

Secretarv, Department of the Armv, EEOC Appeal No. 01960932 (December 6, 2001).

There is atso sufficient evidence to justify a finding of retaliation based on filing

of a prior EEO complaint.

Based on the foregoing testimonia! evidence, it is undisputable that Complainant

has met his burden of showing that he was subjected to hostile work environment

harassment based upon his race, color, gender or prior EEO activity, that it affected a

term or condition of employment, and/or had the purpose or effect of unreasonably

interfering with his work environment and/or creating an intimidating, hostile, or

offensive work environment.

V. CONCLUSION

Based on the undisputed facts and law, the evidence, when viewed in the light

most favorable to Complainant, does support a finding of discrimination or harassment

based on race, color, gender or reprisal. Accordingly, the Complainant requests that the

Administrative Judge reject the Agency's motion and great the Complainant a hearing

on his complaint.

Dated: June 5,2010

Respectfu lly Subm itted,

Andrew SchwartzAttorney for Complainant

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