Inside the VA: I’m Black, Gay and a Whistleblower

Due to the VA's hostile reaction to Mitchell's whistleblower complaint, on April 14, 2009, Mitchell filed an EEO complaint alleging “discrimination and reprisal for whistleblowing on the basis of Race (African American), Color (Black), Gender (Male) Sexual Orientation (Gay) and Hostile Work Environment. Mitchell’s EEO complaint (EEOC No. 480-2010-00106X) contained well over 100 documents to support Mitchell’s allegations of manipulated wait time data, fraud, waste and abuse.

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   1 Inside The VA: I’m Black, Gay and a Whistleblower  Oliver B. Mitchell III/ April 14, 2018 In March of 2009, long before the Phoenix uproar, Mitchell had warned VA officials of employee abuses, including the manipulation of electronic  waiting lists. In February of 2008, Mitchell began working as the “Lead Patient Services  Assistant” for the Greater Los Angeles VA Medical Center Radiology Department. In October 2008, Donna M. Beiter, RN, MSN, became the director of the  VA Greater Los Angeles Healthcare System. During her tenure she managed the nation's largest and most complex integrated healthcare facility in the Department of Veterans Affairs. The West Los Angeles VA Healthcare Center is affiliated with more than 45 colleges, universities, and  vocational schools with 964 beds, over 5,000 employees and an annual operating budget of over $900 million. On October 14, 2008, Hannah Nishimoto hired Herlinda Valdovinos who self identifies as a Hispanic female with brown skin as a Patient Services  Assistant assigned to the Radiology Department. In November of 2008, while attending a “Systems Redesign” meeting, Mitchell witnessed schemes to “play” the system to hide patient appointment wait times. On March 24, 2009, Dr. Suzie El-Saden detailed Herinda Valdovinos to the MRI department to delete and purge the backlog as Mitchell had refused.  As a result of the purge, on March 24, 2009, Mitchell filed the first of several OIG complaints for fraud, waste and abuse. He reported that Interim Service Chief, Dr. Suzie El-Saden, had instructed him to destroy medical requests for Magnetic Resonance Imaging (MRI) scans and Computed Tomography (CT) scans in an effort to address VA’s ten -year plus patient appointment backlog. Mitchell’s OIG complaint also alleged that VA officials prevented patient access, falsified documents, and cancelled patient MRI appointments without notifying thepatient of the cancellation.   2 Due to the VA's hostile reaction to Mitchell's whistleblower complaint, on  April 14, 2009, Mitchell filed an EEO compl aint alleging “discrimination and reprisal for whistleblowing on the basis of Race (African American), Color (Black), Gender (Male) Sexual Orientation (Gay) and Hostile Work Environment. Mitchell’s EEO complaint (EEOC No. 480 -2010-00106X) contained well ov  er 100 documents to support Mitchell’s allegations of manipulated wait time data, fraud, waste and abuse. On June 4, 2009, Mitchell filed a whistleblower complaint with the Office of Special Counsel. On June 8, 2009, Debra Jones, VA Equal Employment Opportunity Intake Specialists, phoned Mitchell to discuss his allegations. During that conversation Ms. Jones reiterated to Mr. Mitchell that his sexual orientation was not covered by federal law. On June 8, 2009, Debra VA Equal Employment Opportunity Intake Sp ecialists, emailed Mitchell saying “Mr. Mitchell, per our telephone conversation this afternoon, I am sending you this email so that you can respond providing any additional clarification/supplemental information necessary. This confirms that you deliberat ely omitted “sexual orientation” as a basis from your discrimination complaint. On June 24, 2009 the VA EEO responded with only a partial acceptance of Mitchell's EEO complaint. After having a telephone interview, the EEO office omitted sexual orientation as a basis of Mitchell’s complaint because it was not covered under Title VII of the Civil Rights Act. Per EEO Case No. 200P-0691- 2009102570 “  According to the EEO Counselors Report, your claim is: whether, on the bases of race (African  American), Color (Black), Sex (Male), and Sexual Orientation (Gay), you  were subjected to a hostile work environment as evinced by a number of incidents that occurred from approximately February 2008 to March 24, 2009. Upon making an initial review of your complaint, we found that some matters required clarification… In addition, our review disclosed that  you had provided two letters during the informal complaint process: one dated March 24, 2009, subject: Formal Complaint of Fraud, Waste and  Abuse,” and the other dated April  13, 2009, subject: EEO Complaint based on race, color, sex, and sexual orientation… You explained that you had   3 deliberately omitted sexual orientation as a basis because you understood that it was not covered by Title VII.”  See document here: Affairs-EEO-Case-No-200P-0691-2009102570  In hindsight, Mitchell says “it isn’t that I had ‘deliberately’ omitted sexual orientation, it was the EEO office who stated they wouldn’t investigate that issue because it wasn’t a federal offense.”   As a result of the agency's relentless retaliation and discrimination, on November 24, 2009 Mit chell filed an “Unfair Labor Practice Charge” against the VA. In that complaint he alleged violations of Unfair Labor Practices, discipline and adverse actions, employee rights, investigations and official records.”  On April 22, 2010, the FLRA responded to Mitchell saying “they found no  violations of the law and went as far to say that Mitchell’s whistleblowing disclosure was [not] protected under the law because the agency would retaliate against any employee under similar circumstances. “However, even if there is a prima facie case of discrimination, no violation of the Statue will be found if the evidence shows that the agency would have taken the same action in the absence of the employee’s protected activity…  Accordingly, this charge is dismissed.”  On August 25, 2010, the Office of Special Counsel responded to Mitchell saying “Based on our investigati0n, we have made a preliminary determination that insufficient evidence exists to establish a prohibited personnel practice… In addition, there is strong ev  idence that the decision to detail you was not the result of your whistleblowing, but rather because the alleged conflicts between you and co-  workers.”  On November 22, 2010, Judge Diane Gross, Administrative Law Judge (ALJ) for the Los Angeles EEOC branch stated, “Mitchell’s complaint is a  waste of taxpayer money and time.” She continued saying “she was moved to remove race as a basis from Mitchell’s complaint as she “didn’t see any racism or discrimination.”     4 On November 22, 2010, Andrew M. Schwartz, Attorney at Law and representation for Mr. Mitchell stated “He could no longer represent Mr. Mitchell because he was “too smart” to be black.”   On November 22, 2010, Lisa K. Holliday, Agency Counsel stated “she  wanted to jail Mr. Mitchell for whistleblowing.”  On January 7, 2011, Mitchell motioned the EEOC to re-amend his complaint to include race as srcinally stated. Before we go any further, does anyone see the obvious pattern here? Mr. Mitchell files a whistleblower complaint alleging the destruction of documents to include wait times that resulted in patient deaths and  because Mitchell is black and gay federal officials refused to investigate. The regulation of LGBT employment discrimination in the United States  varies by jurisdiction.  A bill to ban employment discrimination on the basis of sexual orientation and gender identity, the Employment Non-Discrimination Act (ENDA), was introduced repeatedly in the U.S. Congress since 1994. Under the ENDA, it  was illegal for an employer to discriminate against their employees due to their sexual orientation or gender identity. Unlike the Equality Act of 1974, the main focus of the ENDA was to end employment discrimination. On January 8, 2014, the ENDA was referred to the Subcommittee on the Constitution and Civil Justice, but has yet to be passed. Full story due soon. Copyright. Oliver B. Mitchell III, 2014-2018. All rights reserved.
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