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Yonemoto v. Shinseki

United States District Court, D. Hawaii

March 10, 2014

RONALD M. YONEMOTO, Plaintiff,
v.
ERIC K. SHINSEKI, Secretary, United States DEPARTMENT OF VETERANS AFFAIRS, Defendant

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For Ronald M. Yonemoto, Plaintiff: Elbridge W. Smith, LEAD ATTORNEY, SMITH HIMMELMANN AAL ALC, Honolulu, HI; Carl M. Varady, Pauahi Tower, Honolulu, HI.

For Eric K. Shinseki, Secretary, United States Department of Veterans Affairs, Defendant: Thomas A. Helper, LEAD ATTORNEY, Office of the United States Attorney, Honolulu, HI.

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ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS OR FOR SUMMARY JUDGMENT OF DEFENDANT ERIC K. SHINSEKI, DOC. NO. 50

J. Michael Seabright, United States District Judge.

I. INTRODUCTION

In this workplace discrimination action against Defendant Eric K. Shinseki, Secretary, United States Department of Veterans Affairs (" Defendant" ), Plaintiff Ronald M. Yonemoto (" Plaintiff" ) asserts that he was discriminated against on the basis of race, national origin, and disability, and retaliated against for engaging in protected activity in violation of Title VII of the Civil Rights Act of 1964 and the Rehabilitation Act. The basis of Plaintiff's claims is that over the course of several years, the Veterans Administration (" VA" ), through Plaintiff's supervisor Dr. Michael Carethers, created a hostile work environment

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and took a number of adverse employment actions against Plaintiff including, for example, refusing to assign Plaintiff meaningful work, taking away his office and placing him in a semi-public area, refusing to grant Plaintiff paid leave to engage in protected EEO activity, and refusing requested accommodations for Plaintiff's stress and diabetes.

Currently before the court is Defendant's Motion to Dismiss or for Summary Judgment, arguing that Plaintiff has failed to exhaust his administrative remedies as to several claims, and that in any event Plaintiff has failed to raise a genuine issue of material fact. Based on the following, the court GRANTS in part and DENIES in part Defendant's Motion.

II. BACKGROUND

A. Factual Background

Prior to 2000, Plaintiff was an attorney for the Board of Veterans Appeals in Washington D.C. Doc. No. 51, Def.'s Concise Statement of Facts (" CSF" ) ¶ 1.[1] From 2000 to 2006, Plaintiff served in several capacities in the Office of the Director of the Veterans Administration Pacific - Health Care System (" VAPIHCS" ), part of the VA, on the grounds of Tripler Army Medical Center (" TAMC" ), in Honolulu, Hawaii. Id. Since 2006, Plaintiff has served as a Health Systems Specialist with Geriatrics, Rehabilitation and Extended Care (" GREC" ). Id.

Throughout his employment with the VA, Plaintiff has filed a number of EEOC Complaints against VAPIHCS. See Doc. No. 51-4, Def.'s Ex. 2 at 2 (listing complaints). Although the EEOC Complaints forming the basis of this action were filed on July 27, 2010 and September 20, 2011, Plaintiff asserts that the adverse actions taken against him were in retaliation for EEOC Complaints he filed prior to and/or concerning his transfer to GREC. The court therefore briefly provides some background regarding Plaintiff's employment at VAPIHCS prior to his GREC transfer,[2] and then outlines the specific events relevant to Plaintiff's work at GREC.

1. Plaintiff's Work at VAPIHCS from 2000 through 2006

From 2000 to 2006, Plaintiff reported directly to the Director of VAPIHCS, a position that was held by several different individuals over this time period. Although Plaintiff led several major projects under VAPIHCS Director David Burge and was praised for his performance from 2000 through 2004, see Doc. No. 63-2, Pl.'s Decl. ¶ ¶ 8, 9, 12; Doc. Nos. 64-1 - 64-5, Pl.'s Exs. 4-8 (performance evaluations), later Directors, including Dr. Brian O'Neill and Dr. James Hastings, noted issues with Plaintiff's work. See Doc. No. 51-7, Def.'s Ex. 5 (performance evaluation noting that Plaintiff had variable " interpersonal effectiveness" ); Doc. No. 51-12, Def.'s Ex. 10 at 37-45 (Hastings describing incidents he was told of regarding Plaintiff which influenced his assignments to Plaintiff). Also over this period of time, other employees at VAPIHCS -- including those in supervisory roles -- made disparaging comments regarding Plaintiff (including making racist

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remarks), and expressed a desire for Plaintiff's professional demise. See Doc. No. 63-2, Pl.'s Decl. ¶ 14.

In August 2005, Plaintiff applied for the Associate Director's position at VAPIHCS, and was passed over by a committee that included several individuals who were openly critical of Plaintiff. Id. ¶ ¶ 15-19. Plaintiff asserts that the committee failed to follow proper selection procedures to ensure that Plaintiff, the only qualified individual, would not receive the position. Id. On August 6, 2006, Plaintiff filed an EEO Complaint alleging discrimination on the basis of race, color, and sex, and reprisal for engaging in protected activity, which was all based on the alleged manipulation and irregularities in the selection process for the Associate Director's position. Id. ¶ 20; Doc. No. 64-22, Pl.'s Ex. 25.

On August 20, 2006, Hastings decided to assign Plaintiff to GREC. Doc. No. 63-2, Pl.'s Decl. ¶ 22. Hastings asserts that he made this decision after individuals had relayed to him two or three incidents involving Plaintiff -- Hastings was told that after meeting with Plaintiff, a supervisor threatened to resign if she had to interact with him again, and the commanding general at TAMC had said Plaintiff was no longer welcome there. See Doc. No. 51-12, Def.'s Ex. 10 at 37-45. In light of this information, Hastings decided that he " could not afford to have my senior administrative officer, who spoke for me, be perceived by the people in our organization, people we do business with, in a negative way." Id. at 45. Plaintiff agreed to this transfer. Doc. No. 51-13, Def.'s Ex. 11 at 131.

2. Plaintiff's Initial Employment with GREC

Plaintiff's supervisor at GREC is Dr. Michael Carethers. See Doc. No. 51, Def.'s CSF ¶ 5. Dr. Carethers first became aware that Plaintiff was engaged in EEO activity very soon after Plaintiff started working at GREC, when Plaintiff told him. Id. ¶ 6.

At the time of Plaintiff's transfer, Carethers believed that Plaintiff could perform a range of tasks without needing much in the way of day-to-day supervision, including GS-13 or GS-14 level tasks that required significant interaction with other VA employees and with people outside the VA. Id. ¶ 7. Such tasks appear in line with the Position Description for Plaintiff's Health Systems Specialist position, which provides:

Primary Purpose: The incumbent reports directly to the ACOS for [GREC] and assists in developing and implementing new GREC Programs such as the Medical Foster Home program for Hawaii. Is responsible for working with staff assigned to Non-Institutional Care (NIC) Program to establish contracting agreements and liaison with contractors/vendors. Performs a wide range of staff work as assigned by ACOS GREC, including analytical assignments, planning (to include GREC Environment of Care and disaster planning for GREC programs and including home care program patients), tracking of GREC compliance with mandatory training requirements, GREC Inventory Control, support GREC purchase of equipment, systematic internal reviews of GREC programs (including HR staffing effectiveness evaluations and validation of workload and cost data), reviews of policies and procedures regarding contract operations. The incumbent should have familiarity with GREC portion of VA/DoD sharing agreement, contracts, internal and external inpatient and outpatient workload and workload capture methodologies. A working understanding of healthcare finance, VERA Model and

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overall GREC Program costs is also required. Incumbent also functions as a Patient Advocate Liaison for GREC patients.
Performs duties directly contributing to the administrative management of geriatric healthcare delivery system. Duties require the ability to apply the specialized principles and practices of geriatric healthcare management in supporting a healthcare delivery system. Provides comprehensive resource allocation information support decisions involving organizational funds. Must be able to use KOF, DSS and Sequel-queries as well as having a working familiarity with quality measurement and other performance metrics.

Doc. No. 65-6, Pl.'s Ex. 32.

Carethers initially assigned Plaintiff to two significant GREC projects which Carethers thought were appropriate to Plaintiff's GS-13 grade and skill level. Doc. No. 51, Def.'s CSF ¶ 7. The first was a project to prepare VAPIHCS to oversee the quality of care of veterans in the State Veterans Home being built in Hilo. Id. Carethers hoped that Plaintiff could take lead on this project, taking over the complex discussions and arrangements with dozens of state, federal, and private contractor persons and entities, including high-ranking political officials. Id. The second major project was to assist in establishing a VA Medical Foster Home Program. Id. Although Carethers acknowledged that this project was not as complex as the first project, he asserts that it required initiative and diplomacy. Doc. No. 51-2, Carethers Decl. ¶ 7.

3. Plaintiff's Changing Work Duties at GREC

Carethers asserts that by August 2008, he came to the conclusion that Plaintiff was not performing well on the two projects. See Doc. No. 51-2, Carethers Decl. ¶ 8. Carethers further asserts that he decided to take Plaintiff off these projects due to Carethers' personal observations and reports of others that Plaintiff (1) appeared to lack the initiative Carethers expected in a GS-13 employee; (2) required detailed step-by-step guidance on things Carethers believed he could figure out himself; and (3) appeared to alienate people due to the manner in which he spoke to them. Id. According to Carethers, his concerns that Plaintiff was not effective on the first project were confirmed when Wayne Valey, a VA employee from the mainland assigned to assist with the project, raised the concern that Plaintiff may pose a threat of workplace violence (Carethers asserts he did not concur with this concern). Id. ¶ 9; see also Doc. No. 51-8, Def.'s Ex. 6.[3]

Despite Carethers' explanations as to why he took Plaintiff off these projects, Carethers testified that Plaintiff performed satisfactorily and that he replaced Plaintiff on the first project only after it transitioned to the clinical survey phase. See Doc. No. 65-5, Pl.'s Ex. 31 at 319-28. Because Plaintiff was not a clinician, he was not qualified to perform the survey and even Carethers required additional training for this phase of the project. Id. Further, Carethers rated Plaintiff's work performance as " fully satisfactory" every year. See Doc. Nos. 64-7 - 64-11, Pl.'s Exs. 10-14.

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Once Plaintiff was taken off these two projects, Carethers asserts he came to the conclusion that Plaintiff could not be assigned work that required him to represent the VA in the community, work that required him to perform without close supervision, or work that required significant interaction with other VA employees. Doc. No. 51-2, Carethers Decl. ¶ 10. Carethers asserts that as a result, the work that he can give Plaintiff is sharply limited, and that he tries to give Plaintiff work with well-defined duties and does not require much discretion or initiative. Id.

From August 2008 to the present, Carethers reduced Plaintiff's duties and responsibilities to the point where Plaintiff has little or no work to occupy his time more than ninety percent of the time. Doc. No. 63-2, Pl.'s Decl. ¶ 24. Carethers has instead assigned Plaintiff " clerical and menial" work normally performed by GS-5 employees such as updating the inventory counts for the Material Safety Data Sheets, filling VAPIHCS vehicles with gasoline and getting them washed, inspecting fire extinguishers, collecting donations, and inspecting controlled substances. Id. ¶ 25; see also Doc. Nos. 64-9 - 64-11, Pl.'s Exs. 12-14 (performance evaluations describing Plaintiff's job duties).

In response to his significantly diminished workload, Plaintiff has repeatedly requested work from Dr. Carethers, explaining that the lack of work is causing Plaintiff stress. See Doc. No. 63-2, Pl.'s Decl. ¶ 25; Doc. No. 65-7, Pl.'s Ex. 33. Despite these requests, Plaintiff has not received any additional work -- Carethers asserts that although he continues to look for tasks for Plaintiff both within GREC and in other areas of the VA, Carethers is unwilling to assign him work that requires significant initiative. Doc. No. 51-2, Carethers Decl. ¶ 15; see also Doc. No. 65-4, Pl.'s Ex. 30 (Carethers testifying that in response to Plaintiff's requests for work during meetings, Carethers' response was that " I had nothing for you now, Ron" ).

4. Plaintiff's Office Move

In April 2010, Carethers moved Plaintiff from a private office to a semi-public space where patients and staff congregate and near a malfunctioning alarm that goes off sporadically. Doc. No. 63-2, Pl.'s Decl. ¶ 27; see also Doc. No. 65-9, Pl.'s Ex. 35. Carethers told Plaintiff that he needed to move immediately, and laughed when he saw that Plantiff was upset. Doc. No. 63-2, Pl.'s Decl. ¶ 27.

Carethers asserts that this move was part of a major reshuffling of work areas caused by the increase in employees, that Plaintiff was required to move so that an incoming doctor could have an office, and that all offices were occupied by one or more doctors, supervisors who needed privacy to counsel employees, persons who needed to keep confidential information under lock and key, or persons who needed privacy to make confidential medical communications. Doc. No. 51-2, Carethers Decl. ¶ ¶ 11-12. Although Carethers told Plaintiff that the loss of an office would be temporary, the workforce has continued to grow and no office is available. Id. ¶ 13.

Plaintiff asserts that his workplace, with no privacy, makes it difficult for him to administer his insulin, monitor his blood sugar, and work. Doc. No. 63-2, Pl.'s Decl. ¶ 27. Plaintiff further asserts that there are open offices in patient wings that could have been assigned to doctors and would have allowed Plaintiff to retain his office. Id.

5. Request for Authorized Absence

On June 15, 2010, Plaintiff requested that Lavern Spillane, Carethers' administrative officer, grant him Authorized Absence (" AA" ) ( i.e., leave with pay) to attend

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an interview with an EEO counselor at the office of Plaintiff's attorney on June 16, 2010 at 10:00 a.m. See Doc. No. 65-13, Pl.'s Ex. 39. The VA Handbook provides that employees " are entitled to a reasonable amount of official time to present the complaint and to respond to VA requests for information," and that employees " shall be in duty status when their presence is authorized or required by EEOC or VA officials in connection with the complaint." Doc. No. 65-12, Pl.'s Ex. 38. Spillane responded that she would approve only ...


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