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Yonemoto v. McDonald

United States District Court, D. Hawaii

July 10, 2015

RONALD M. YONEMOTO, Plaintiff,
v.
ROBERT A. McDONALD, 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, 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.

OPINION

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FINDINGS OF FACT AND CONCLUSIONS OF LAW

J. Michael Seabright, United States District Judge.

I. INTRODUCTION

The court conducted a non-jury trial in this case on May 5-8, 11-14, and 27-29, 2015. Pursuant to Federal Rule of Civil Procedure 52(a), the following constitute the court's Findings of Fact (" Findings" ) and Conclusions of Law (" Conclusions" ). To the extent any Findings as stated may also be deemed to be Conclusions, they shall also be considered Conclusions. Similarly, to the extent any Conclusions as stated may be deemed to be Findings, they shall also be considered Findings. See In re Bubble Up Del., Inc., 684 F.2d 1259, 1262 (9th Cir. 1982).

II. OVERVIEW

In this workplace discrimination action against Defendant Robert A. McDonald,[1] Secretary, United States Department of Veterans Affairs (" Defendant" ), Plaintiff Ronald M. Yonemoto (" Plaintiff" ) asserts that he was retaliated against for engaging in protected activity in violation of Title VII of the Civil Rights Act of 1964 and the Rehabilitation Act, and discriminated against on the basis of disability in violation of the Rehabilitation Act. In particular, Plaintiff alleges that over the course of several years, the Veterans Administration (" VA" ), through Plaintiff's supervisor Dr. Michael Carethers (" Carethers" ), retaliated and discriminated against Plaintiff by, among other things, taking away his work, transferring him out of his private office into a semi-public cubicle, and refusing to engage in the interactive process in response to Plaintiff's requests for accommodations for diabetes and depression.

As described in more detail below, throughout this case, Plaintiff has repeatedly attempted to expand his claims beyond what was alleged in his pleadings and what was part of the EEOC investigations. It was only through extensive motions practice -- both on summary judgment and again on the eve of trial -- that the scope of Plaintiff's claims became defined. Specifically, Plaintiff's claims at trial include: (1) a Title VII retaliation claim based on his placement into a semi-public cubicle on April 29, 2010, and a denial of authorized absence (leave with pay) on June 16, 2010; (2) a Title VII retaliatory hostile work environment claim based on a refusal to assign Plaintiff meaningful work and continued placement in a cubicle, actionable

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beginning April 26, 2010; (3) a Rehabilitation Act denial of reasonable accommodation claim based on discrete acts occurring on or after July 3, 2011; and (4) a hostile work environment Rehabilitation Act claim, occurring from November 30, 2010 to the present.

The evidence presented at trial was expansive, and included live testimony from 15 witnesses, testimony by deposition designation of 3 witnesses, testimony by declaration of 4 witnesses, and admission of 135 exhibits. The parties presented extensive, detailed evidence spanning fifteen years of Plaintiff's work history with the VA, and 6 years of medical diagnoses and treatment. A significant amount of the evidence presented involved complaints supervisors received from others regarding Plaintiff's conduct, and this evidence was generally admitted for a limited purpose, such as showing state of mind and/or placing matters in context. Below, the court does not specify each time certain evidence was admitted for a limited purpose, but uses such evidence only as permissibly admitted.

The court has heard and weighed all the evidence and testimony presented at trial, observed the demeanor of witnesses and evaluated their credibility and candor, and heard and considered Plaintiff's and Defendant's arguments. Below, the court does not detail the minutia of all of the evidence presented, as many of the details are cumulative, only marginally relevant, and/or unnecessary to understanding the court's ultimate analysis. Rather, the court makes findings sufficient for the parties and the Ninth Circuit to understand the basis of the court's ruling on Plaintiff's claims. See Norris v. City & Cnty. of San Francisco, 900 F.2d 1326, 1329 (9th Cir. 1990).

In summary, the evidence reveals that Plaintiff had significant personality and interpersonal problems that prevented him from effectively carrying out his work during the relevant time period. These issues included:

o Whether the assignment was complex or menial, Plaintiff was by and large unable to perform the work assigned without significant input from others and/or without asking numerous questions, which caused more work for others.
o Supervisors fielded numerous complaints from both employees within the VA and individuals outside the VA that Plaintiff was aggressive, confrontational, and/or otherwise inappropriate.
o When counseled regarding his work, Plaintiff refused to take constructive criticism and instead became hostile and defensive, often attacking his supervisor's leadership and/or deflecting the criticisms on others.
o Plaintiff was unaware that his actions were inappropriate and affected how people interacted with him, an issue apparent even during trial.

As explained below, by and large it is these interpersonal problems, and not any unlawful retaliation and/or discrimination, that is the cause of the events that are the basis of Plaintiff's claims. Specifically, the court finds that Plaintiff has failed to prove by a preponderance of the credible evidence that Defendant retaliated against Plaintiff in violation of Title VII or the Rehabilitation Act, except as to Plaintiff's Title VII retaliation claim based on the June 16, 2010 denial of authorized absence. The court further finds that Plaintiff has not prevailed on his Rehabilitation Act claim that he was denied Plaintiff's requests for accommodation.

III. PROCEDURAL HISTORY

Plaintiff filed this action on August 31, 2011, and his October 10, 2012 First Amended Complaint (" FAC" ) asserted claims for: (1) race and national origin

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discrimination in violation of Title VII (Count I); (2) retaliation in violation of Title VII (Count II); (3) disability discrimination in violation of the Rehabilitation Act (Count III); and (4) retaliation in violation of the Rehabilitation Act (Count IV).

On November 22, 2013, Defendant filed a Motion to Dismiss or for Summary Judgment. Doc. No. 50. On March 10, 2014, the court granted in part and denied in part the Motion. As the March 10, 2014 Order outlined in detail, Plaintiff had repeatedly attempted to expand his claims with the EEOC Complaints, the FAC, and Plaintiff's arguments before the court containing ever-expanding allegations forming the basis of Plaintiff's claims. See Doc. No. 79; Yonemoto v. Shinseki, 3 F.Supp.3d 827, 840-41 (D. Haw. 2014). The March 10 Order was therefore supposed to serve as a clear outline of what claims remained in this action.

In particular, the March 10, 2014 Order held that (1) to be timely, the discrete acts that are the basis of Plaintiff's retaliation and disability claims must have occurred no more than forty-five days prior to Plaintiff's first contact with an EEO counselor regarding those acts; and (2) Plaintiff's hostile work environment claims are timely so long as one act that is the basis of such claim occurred within 45 days of Plaintiff's first contact with an EEO counselor. Here, the parties do not dispute that Plaintiff's first contact with an EEO counselor regarding his Title VII retaliation claims was June 10, 2010, and his first contact regarding his Rehabilitation claims was August 17, 2011. See Doc. No. 131, Stipulated Facts (" SF" ) ¶ ¶ 21, 72. Applying these principles and after addressing the parties' other summary judgment arguments, the March 10, 2014 Order outlined that Plaintiff's remaining claims included: (1) a Title VII retaliation claim based on the June 16, 2010 denial of Authorized Absence; (2) a Title VII retaliatory hostile work environment claim; and (3) Rehabilitation Act claims, to the extent based on denials of accommodations after July 2, 2011 ( i.e., within 45 days of his first contact with the EEO regarding this claim). 3 F.Supp.3d at 851. The parties subsequently agreed that Plaintiff's Title VII retaliation claim based on discrete acts included Plaintiff's move from his office space. Doc. No. 110.

Although the March 10, 2014 Order should have been the final word on the scope Plaintiff's claims, on the eve of trial, Plaintiff filed a Motion to Vacate the March 10, 2014 Order, seeking to (1) limit his Title VII retaliatory hostile work environment claim to events starting April 29, 2010 as opposed to August 2008 as he alleged in his pleadings; and (2) broaden his denial of accommodation Rehabilitation Act claim based on an argument he never properly or previously raised. The court rejected the Motion to Vacate (as well as a subsequent Motion for Reconsideration), yet allowed Plaintiff to limit his Title VII hostile work environment claim to events starting April 29, 2010. Doc. Nos. 139, 141. Thus, in its April 22, 2015 Order denying the Motion to Vacate, the court clarified that Plaintiff's claims remaining in this action include (1) a Title VII retaliation claim based on discrete acts of the June 16, 2010 denial of Authorized Absence, and Plaintiff's move from his office space; (2) a Title VII retaliatory hostile work environment claim beginning on April 29, 2010; (3) a Rehabilitation Act discrimination claim based on denial of reasonable accommodations after July 2, 2011; and (4) a Rehabilitation Act retaliatory hostile work environment claim.[2]

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On April 14, 2015, the parties submitted their agreed-to Stipulated Facts. Doc. No. 131.

On May 5, 2015, a bench trial proceeded on Plaintiff's remaining claims and spanned 11 days.[3] Closing arguments were heard on June 4, 2015. The parties submitted post-trial briefs on June 18, 2015, Doc. Nos. 188, 189, and rebuttal briefs addressing legal issues raised by the other party on June 25 and 30, 2015. Doc. Nos. 191, 195.

On July 6, 2015, the court notified the parties of its determination that Plaintiff has not prevailed on any of his claims except the June 16, 2010 denial of authorized absence, and directed the parties to submit supplemental briefing addressing damages on this limited claim. See Doc. No. 196. On July 10, 2015, the parties filed a Stipulation Regarding Damages providing that as a result of the court's finding of liability as to the June 16, 2010 denial of authorized absence, Plaintiff is entitled to equitable relief in the form of back pay pursuant to 42 U.S.C. § 2000e-5(g)(1) in the amount of $117.40, and compensatory damages pursuant to 42 U.S.C. § 1981a(b)(3) in the amount of $1,750. Doc. No. 197.

IV. FINDINGS OF FACT[4]

A. Overview

1. Plaintiff's career with the federal government spans over forty years. Plaintiff (1) served in the United States Navy, reaching the rank of Captain 06, (2) obtained his law degree and worked for the Board of Veterans Appeals in Washington D.C., performing claims and benefits review from 1979-2000, (3) worked at the VA Pacific Islands Health Care System (" VAPIHCS" )[5] in Honolulu as Special Assistant to the Director (as well as other positions) from 2000-2006, and (4) transferred in 2006 to the Geriatrics Rehabilitation and Extended Care (" GREC" ) as a Health Systems Specialist, a position he still holds today.

2. Plaintiff's claims are limited to events that occurred during his employment at the GREC from April 2010 to the present, and are based on Carethers' allegedly discriminatory and/or retaliatory actions, including his (1) failure to assign Plaintiff work, (2) transfer of Plaintiff from a private office to a semi-public cubicle, (3) denial of Authorized Absence on June 16, 1010, and (4) alleged refusal to meaningfully address Plaintiff's requests for accommodations for his diabetes and stress (including requests for more work and a different work space). To put these

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claims and Defendant's defenses into context, however, the relevant facts date back much earlier -- Carethers stopped assigning Plaintiff work in 2008, and both parties presented evidence of Plaintiff's work from 2000 through 2010 as evidence of whether Plaintiff was capable of doing the work expected of a GS-13 level employee.

3. Throughout this litigation and trial, the parties referred to the work that Plaintiff sought and the work that he was capable of doing alternatively as GS-13 level work, work commensurate with Plaintiff's grade level, and/or meaningful work. The court uses these terms interchangeably, as they are directed to the same basic concept and no party presented evidence distinguishing between grade levels ( i.e., the difference in work between a GS-11, GS-12, or GS-13 employee).

4. The credible evidence establishes that although Plaintiff was capable and effective at his GS-13 position from 2000-2004, at some time in 2005, Plaintiff's superiors began entrusting Plaintiff with less and less work due to their perception that Plaintiff was aggressive and did not get along with others, did not take criticism maturely, shifted the blame, and made more work than if someone else performed the work. Whether Plaintiff's problems were in part the result of interpersonal politics at VAPIHCS or solely Plaintiff's making (an issue the court ultimately need not decide), the credible evidence at trial amply establishes that Plaintiff was, in short, a difficult employee to manage and that his interpersonal issues prevented him from performing the work of a GS-13 employee.

5. In 2006, Plaintiff agreed to take a position with the GREC under the supervision of Carethers. Numerous sources of evidence describe Plaintiff's tenure at the GREC, with Plaintiff and Carethers as the primary testifying witnesses about these events. Not surprisingly, Carethers' and Plaintiff's testimony differed on certain key issues (detailed below).

6. The credible evidence presented establishes that although Plaintiff had a clean slate to establish a working relationship with his new supervisor, like Plaintiff's previous supervisors, Carethers had similar significant difficulties with Plaintiff -- employees and others complained that Plaintiff was intimidating and/or otherwise inappropriate, Plaintiff often openly challenged Carethers and his assignments, and Carethers found over time that giving Plaintiff assignments only caused more work than if he did them himself. And Plaintiff's interpersonal problems were only exacerbated by Plaintiff's inability to take criticism constructively and refusal to acknowledge his contribution to these issues, the latter of which the court saw first-hand in Plaintiff's testimony. It further appears that Plaintiff's demeanor alienated Carethers, who himself was prone to his own contrivances and/or did not have the time to properly deal with such a difficult employee. As a result, Carethers' solution was simply to assign Plaintiff virtually no work.

7. The stress caused by the lack of work and his move to a semi-public work area contributed to Plaintiff's depression and inability to control his diabetes, which resulted in Plaintiff taking a leave of absence from November 2010 through April 2012. When Plaintiff requested accommodations for his diabetes to return to work, Carethers again largely ignored Plaintiff. Plaintiff nonetheless returned to work, where it is only recently that Plaintiff started receiving more meaningful assignments. The court provides more details to these facts as follows.

B. Plaintiff's Work From 2000 to 2004 Under Director Dr. H. David Burge

8. In the spring of 2000, Plaintiff transferred from the Board of Veterans Appeals

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in Washington D.C. to VAMROC in Honolulu, to serve as the Special Assistant to the Director, H. David Burge. At this time, Burge was in the midst of attempting to clean up the " mess" that was VAMROC -- it was ranked last in terms of medical performance and on the brink of being shut down, and veterans were angry with delays in service and openly hostile to the VA and its leadership in Hawaii. Burge and Plaintiff were friends since the 1980s, and Burge believed that Plaintiff's military and VA background would be an asset in turning around VAMROC. Burge and Plaintiff continued their friendship in Hawaii, carpooling to work and exercising in the evenings together.

9. According to Burge, who the court finds credible, Plaintiff contributed to getting VAMROC back on track -- he increased VA enrollment (thereby allowing more services and facilities for veteran care), set up the financial/referral system to ensure the VA did not get double-billed for services provided by Tripler Army Medical Center, and worked as a public affairs officer in repairing the relationship between the VA and veterans. These assignments were GS-13 level work, and Plaintiff greatly contributed to the national VA ranking the Hawaii facility as a top facility in the nation. According to Burge, Plaintiff's work was outstanding.

10. To get results, Plaintiff pushed other employees, and Burge received some complaints regarding Plaintiff. Burge expected all of his leadership team to push for results, however, and these complaints were not unusual -- he received complaints on all of his leadership team. Given the important work needing to be done, Burge expected employees to set aside interpersonal rifts for the greater good (including a rift between Plaintiff and Dr. Steven MacBride, another individual within Burge's leadership circle who was Chief of Staff at this time).

11. In 2003, Burge put Plaintiff in charge of a major project involving splitting the medical portion of the VA from the benefits administration side, which involved millions of dollars and physically reconfiguring the VA Tripler campus. This project took all of Plaintiff's time, and in May 2004, Burge reassigned what remained of the project to Mary Cronin, who was head of the Information Resources Management Service. Although Burge testified that he took Plaintiff off this project so that he could focus on his public affairs function, Plaintiff did not receive another assignment and he did not have much work to do. Plaintiff was upset in having this project taken away from him and he filed an EEO Complaint, accusing Cronin and Burge of conspiring together to prevent his advancement.

12. The court does not draw an inference that Plaintiff could not perform GS-13 work in 2004 based the fact that Burge took away this assignment from Plaintiff. Burge credibly testified that he would have no hesitation in rehiring Plaintiff to perform the same type of work. Doc. No. 182, Trial Tr. 10-93. The court therefore finds that Plaintiff was successfully performing GS-13 level work during Burge's tenure.

C. Plaintiff's Work from 2004 to 2005 Under Acting Director Dr. Brian O'Neill

13. In September 2004, Dr. Brian O'Neill became the Acting Director of VAPIHCS, a position he held until October 2005. At this time, the VAPIHCS still had significant issues with finances, access to care, and the need for expansion of the health care system. O'Neill, who the court finds extremely credible, also described that there was a schism within his leadership team, divided amongst those employees who got along with Plaintiff (including

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Associate Chief of Staff - Primary Care, Dr. Daniel Bouland), and those that did not (including MacBride and many other members of the leadership team), which created significant problems in developing and maintaining a harmonious work environment. Like Burge, however, O'Neill expected people to set aside their personal differences and focus on their job at hand to improve veteran care in Hawaii.

14. O'Neill expected that Plaintiff would be able to perform all the duties within the job description of Special Assistant to the Director, which gave Plaintiff responsibility for, among other things, special projects, staff work, and managing community and stakeholder relations. See Def.'s Ex. 501. O'Neill described that in this position, Plaintiff was expected to achieve projects, write effectively as required, provide leadership in achieving outcomes, and be able to work effectively with the staff to achieve goals of the organization. Doc. No. 172, Trial Tr. 4-11. In addition to his regular duties, Plaintiff also agreed to fill the position of compliance officer, which required specialized training and which was an open position for which O'Neill lacked funding. In all these duties, O'Neill expected Plaintiff to function independently and autonomously with limited oversight.

15. According to O'Neill, interpersonal effectiveness was a critical skill for Plaintiff to carry out his duties, yet Plaintiff was perceived as heavy-handed, using control and antagonization in dealing with other employees. Put simply, Plaintiff needed to work well with others to be effective in his job, and O'Neill found that Plaintiff lacked this ability and instead was a polarizing individual who did not create an environment of mutual trust and understanding. In fact, O'Neill testified that over the course of his 25-year career as an executive, he has " never seen the situation where one individual so polarized an organization," and although " there were a lot of people to blame," the focus of many people was on Plaintiff. See Doc. No. 172, Trial Tr. at 4-145. As a result, several employees complained to O'Neill regarding Plaintiff's perceived intimidating conduct. See, e.g., id. at 4-41; Def.'s Ex. 503.

16. O'Neill has mentored many individuals throughout his career as an executive with the VA, and O'Neill tried to do the same for Plaintiff, meeting with Plaintiff " many times a week" in the first months of O'Neill's tenure. Doc. No. 172, Trial Tr. at 4-58. At this time, O'Neill was still assessing Plaintiff's overall capabilities, and he attempted to coach Plaintiff to improve his interpersonal effectiveness and communication, i.e., how he interacted with others and how to be constructive. Id. at 4-12 - 4-13.

17. In February 2005, O'Neill provided Plaintiff his six-month review. Each employee receives a performance plan for the following year, and the supervisor is responsible for providing a progress review after six months, and a year-end evaluation. These reviews require a supervisor to rate an employee in several critical elements and also provide five possible overall ratings -- outstanding, excellent, fully successful, minimally satisfactory, and unacceptable. In practice, the vast majority of employees receive outstanding or excellent ratings, with less than twenty percent receiving a fully successful rating, and less than five percent receiving a lower rating. Indeed, O'Neill testified that he fills out hundreds of these forms, and generally ranks 90% of his employees either outstanding or excellent.

18. For Plaintiff's six-month review, O'Neill had observed Plaintiff for only four months, and rated him as " excellent." Def.'s Ex. 501. Although the review was generally positive, O'Neill wrote in his narrative that " cliques" existed within VAPIHCS

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and urged Plaintiff to work on communication skills and interpersonal effectiveness with all staff (not only those with whom he gets along) because " [i]nterpersonal effectiveness is the HPDM core competency that holds the key to Mr. Yonemoto's long term effectiveness within his current role at the PIHCS." Id. at YAD009661. Plaintiff also submitted a self-assessment, which raised some concerns for O'Neill as it suggested that Plaintiff did not understand how he was perceived by others (for example, Plaintiff asserted that he is " a person whom the staff trust to have their problems resolved" ). O'Neill credibly testified that when he made suggestions to Plaintiff during his in-person review, Plaintiff challenged O'Neill's comments, became accusatory of others' conduct, and was generally not receptive to the criticism.

19. As part of this review, O'Neill asked Plaintiff to conduct a " 360 degree" assessment in which Plaintiff would obtain evaluations from coworkers on an anonymous basis. Doc. No. 176, Trial Tr. at 7-142 - 7-143. Plaintiff started the process, put together a list of coworkers to provide evaluations, but then threw away the results without looking at them when he learned that O'Neill had changed the list of coworkers to include individuals with whom Plaintiff did not get along. Id. at 7-143; Doc. No. 180, Trial Tr. 8-85. Plaintiff testified that he " thought the process was compromised, unfair and geared to target me and make me feel bad." Doc. No. 180, Trial Tr. 8-86. Regardless of whether Plaintiff disagreed with the process, Plaintiff's reaction was inappropriate and is further evidence of Plaintiff's refusal to take criticism.

20. After this review, O'Neill found it increasingly difficult to work with Plaintiff, with O'Neill fielding complaints about Plaintiff's trustworthiness, reliability, and perceived intimidation of other employees. Doc. No. 172, Trial Tr. 4-23; see also Def.'s Ex. 503 (September 23, 2005 email, admitted without any limitation, from employee to O'Neill reporting intimidation by Plaintiff).[6]

21. O'Neill also found that Plaintiff could be petty and/or juvenile, and often made, as O'Neill aptly described, a " mountain out of a mole hill." Doc. No. 172, Trial Tr. 4-42 - 4-43. For example, O'Neill informally counseled Plaintiff after receiving complaints that Plaintiff was often absent from his office and was instead wandering around the facility chatting with other employees. In response, Plaintiff started sending O'Neill several emails each day reporting his activities ( e.g., going to the bathroom, lunch, etc.). Id. at 4-41 - 4-42. As another example, O'Neill informally counseled Plaintiff after receiving a written complaint from Cronin that she found offensive Plaintiff's reference to another employee as a " Chinese girl." [7] Plaintiff's reaction was well out of proportion with this informal counseling -- Plaintiff became defensive, requested that Human Resources conduct training for all employees, suggested that O'Neill follow up with the principal deputy undersecretary who used the term " boys and girls" during a meeting, and even hired a linguist to write a report. See id. at 4-32 - 4-38;

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Def.'s Ex. 502, Doc. No. 180, Trial Tr. 8-30.

22. Certainly, some part of Plaintiff's inability to work effectively with others may be attributed to the warring cliques at VAPIHCS -- Plaintiff no longer had Burge in the Director's position as a close ally and friend, and there is no dispute that others in the leadership team (MacBride in particular) neither liked nor respected Plaintiff. See, e.g., Pl.'s Exs. 3-8, 10 (emails between MacBride, Cronin, and others referring to Plaintiff derisively). Plaintiff, however, did nothing to bridge these relationships to work effectively with these individuals.

23. By the end of O'Neill's tenure, O'Neill had begun limiting Plaintiff's work because O'Neill found him not effective in obtaining results. See Doc. No. 172, Trial Tr. 4-44 - 4-45. Plaintiff's primary assignment at this time was to serve in a part-time capacity as compliance officer (ensuring that the facility complies with regulations). O'Neill wrote in his final review, dated October 2005, that Plaintiff (1) made only a limited contribution to " writing 'white papers'; assisting in strategic planning program; responding to complex suspenses; helping with complex problem solving, etc.; " (2) lacked " very good insight into his own performance, which . . . serves as a serious impediment to personal growth and development; " (3) was not open to suggestion and instead defensive to suggestions and feedback; and (4) has " extremely variable" interpersonal effectiveness, which constrained the activities O'Neill could assign him and was a " significant shortcoming" for Plaintiff's position as Special Assistant to the Director. Overall, O'Neill ranked Plaintiff " fully successful," a rating he provides to the bottom 10-15% of his employees. Def.'s Ex. 504.

24. In comparison to O'Neill's negative review of Plaintiff's work, Bouland testified that in the spring of 2004, he became the Director of the Office of Referral and Management Services, and that at some time during his tenure, Plaintiff provided him excellent assistance in creating a bill tracking process and advising on regulatory requirements for a dialysis unit. Bouland further testified that MacBride was a toxic element in the leadership of VAPIHCS, and " poisoned" Plaintiff's relationship with O'Neill. To the extent Bouland's testimony contradicts O'Neill, the court credits O'Neill's testimony -- O'Neill appeared very credible to the court, was responsible for overseeing Plaintiff's work, and was an outsider to the significant politics infecting VAPIHCS (as opposed to Bouland who had worked with these individuals since 2000 and had significant problems with MacBride, including obtaining a temporary restraining order against him, which Plaintiff assisted in serving and for which Plaintiff was reprimanded after he improperly obtained MacBride's home address).

25. When O'Neill gave Plaintiff his 2005 annual review in person, Plaintiff had a strong, angry reaction, challenged O'Neill, and demanded to know who had complained about him. According to Plaintiff, this review was " a form of character assassination," and was " extremely devastating" to his career. See Doc. No. 176, Trial Tr. 7-144, 7-146-7-147. When O'Neill refused to provide names of individuals who complained, Plaintiff abruptly left the meeting. O'Neill left VAPIHCS shortly after this meeting, and although O'Neill offered to speak with Plaintiff again about his review, Plaintiff demanded that such a meeting be transcribed. Given Plaintiff's significant litigation history by this time (including several EEO charges), O'Neill declined, concerned that Plaintiff would use the recording against him in some fashion.

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26. Based on this evidence, and in particular O'Neill's extremely credible testimony, the court draws the conclusion that at some point in 2005, Plaintiff could no longer perform GS-13 level work because his interpersonal problems significantly interfered with his ability to work with others, an essential skill of his position.

D. Plaintiff's Work from November 2005 to August 2006 Under Director Dr. James E. Hastings

27. In November 2005, Dr. James E. Hastings became Director of VAPIHCS. Although Hastings was initially pleased to learn that he had a Special Assistant, he received complaints arising from Plaintiff's conduct in carrying out his duties. These complaints included that Plaintiff was no longer welcome at Tripler, a very important partner with the VA. Hastings also fielded another complaint from a well-regarded supervisor, Mary Zadlow, that she was very upset with an interaction she had with Plaintiff and that " if she ever had to work with him again, she'd resign." Doc. No. 149-1, Hastings Depo. at 39. As a result of these complaints, Hastings made the decision that he could not afford to have his senior administrative officer, who spoke for him, be perceived by others both within and outside VAPIHCS in a negative way. Id. at 44. Hastings therefore eliminated Plaintiff's position.

28. In eliminating the position, Hastings met with Plaintiff to discuss where Plaintiff believed he could contribute within the organization. They identified the GREC as the best fit, because providing care for aging veterans was an area of growth and Plaintiff's experience as an administrator could be put to good use. Hastings did not believe that this was a " pejorative move at all," but one that was " good for the organization." Id. at 50.

29. Hastings in turn spoke with Carethers, the Associate Chief of Staff (" ACOS" ), GREC, and explained that although Plaintiff had some difficulties with other employees, Hastings believed Plaintiff could help on the administrative end for several new projects at the GREC. See Doc. No. 181, Trial Tr. at 9-16.

E. Plaintiff's Work at the GREC

30. On August 20, 2006, Plaintiff became a Health Systems Specialist GS-13 at the Center for Aging, aka Community Living Center/Center For Aging (" CFA" ) within the GREC, under the direct supervision of Carethers. Plaintiff still holds his Health Systems Specialist position today. Doc. No. 131, SF ¶ 1.

31. Carethers has been the ACOS for the GREC since 2001, and has worked an average of 60 hours per week for the last ten years. As of 2006, the GREC had between 60-80 employees, and has since grown to have 167 employees. The GREC now offers fifteen different programs, and has a budget of approximately $17 million.

32. The position description for Plaintiff's Health Systems Specialist position provides that " [t]he incumbent reports directly to the ACOS for [the GREC] and assists in developing and implementing new GREC Programs . . . ." Pl.'s Ex. 136. The duties of this position are managerial in nature and primarily program development and implementation. See id.

1. Plaintiff's Work from August 2006 Through August 2008

33. Carethers assigned Plaintiff to two main projects from August 2006 through August 2008. One project to which Carethers assigned Plaintiff was the Medical Foster Home Program, where the VA provided care to patients who are at the nursing home level of care in a care home. Plaintiff's assignment was to help the director of this program, Charlotte Kuwanoe, with the administrative aspects of getting

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the project off the ground. Carethers took Plaintiff off this project several months later, however, after Kuwanoe reported to Carethers that it would be easier for her to do the work herself than to have to explain all of the clinical aspects to Plaintiff. Doc. No. 181, Trial Tr. at 9-65 - 9-66.

34. The second and more substantive project to which Plaintiff was assigned was the State Veterans Home (" SVH" ) project, in which the federal government and the State of Hawaii worked together to bring a State-run veterans' home to Hilo, Hawaii. The project, to be completed in two years, called for the federal government to pay most of the construction costs for the home, with the State to manage and operate the facility according to VA requirements for standards of care. Carethers had never led a project of this scale, and he looked to Plaintiff to be the point person for the administrative duties of this project, including coordinating meetings, preparing policies and procedures, and communicating with the various parties. Although Plaintiff did not have clinical experience, these tasks did not require clinical expertise and the clinical portion of the project (inspections) would not occur until later in 2008. Id. at 9-19.

35. Carethers credibly testified that there were several issues with Plaintiff's work on this project. For example, although Plaintiff was effective in scheduling meetings for this project, Plaintiff lacked the acumen to synthesize data from the regulations. Carethers further found that when assigned a task, Plaintiff would ask numerous questions -- often sending a " barrage" of emails -- which showed a lack of initiative in finding out the answers on his own that Carethers expected of GS-13 employees. Doc. No. 181, Trial Tr. 9-59 - 9-60. The result of Plaintiff's performance was that Carethers did a lot of the work himself or assigned it to others. Id. at 9-168.

36. Kaulatie JangDhari, the Associate Director of VAPIHCS at this time, represented leadership in connection with the SVH Project and understood that Plaintiff was a primary liaison for the VA on this project. Doc. No. 183, Trial Tr. 11-9. She credibly testified that Plaintiff's performance fell short of her expectations for scheduling meetings and communicating information regarding the budget, staffing, and pharmacy collaboration. Id. at 11-13. As a result, Carethers spent a lot of time gathering the information she required. Id. at 11-20.

37. Beyond the substance of Plaintiff's work, Plaintiff's demeanor also caused problems, with Plaintiff alienating people that were necessary for the project, and Plaintiff even took an aggressive, challenging demeanor with Carethers on occasion.

38. For example, in November 2006, Plaintiff came to Carethers' office and told him that he had several EEO claims against the Director and Miles Miyamoto, the Assistant Regional Counsel for the VA, and that he was not afraid to come after Carethers. Doc. No. 181, Trial Tr. at 9-20 - 9-25. Plaintiff made these statements while he was standing up, positioned close to Carethers' desk, in a loud voice, and with his finger pointed. Id. When Carethers asked if Plaintiff thought Carethers was " messing with him," Plaintiff responded " no," but wanted Carethers to be aware of his EEO activities. Id. at 9-25. Indeed, beyond Plaintiff's EEO Complaint stemming from Burge taking away the VAMROC transition project from him, Plaintiff initiated four other EEO charges against VAPIHCS from July 28, 2005 through November 2, 2006. See Doc. No. 131, SF ¶ 5. To be sure, there is no problem with Plaintiff engaging in EEO activity and/or notifying his supervisor of these

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activities. Rather, the problem is the manner in how Plaintiff told Carethers, which appeared as a challenge and/or threat, and is another instance of Plaintiff not thinking about how his tone and manner affect how people perceive and react to him.

39. As another example, in November 2006, Carethers and Plaintiff had an email exchange in which Carethers cautioned Plaintiff. The issue arose after Carethers, in an email addressed to JangDhari and Plaintiff, thanked JangDhari for providing information relevant to the SVH project. In response, Plaintiff wrote to Carethers separately, " [e]ither you do the work and I will wait for your instruction or delegate it to me and I will take the initiative. Please clarify on how you want to operate . . . Please let go. Doesn't make you look good." Def.'s Ex. 511. Carethers found Plaintiff's email surprising, as Plaintiff's role was to assist Carethers and they needed to work together. Carethers cautioned Plaintiff about the tone of his email and stressed that they are " we all are working together," and " are only here to service veterans." Id. At trial, Plaintiff conceded that his email was inappropriate. Doc. No. 176, Trial Tr. 7-156 - 7-157.

40. Carethers also found that Plaintiff acted inappropriately at meetings. In particular, both Plaintiff and Carethers attended meetings of the SVH Activation Committee in 2006 and 2007, and Carethers credibly testified that in some of these meetings Plaintiff would dominate discussions, acting very aggressively and taking over Carethers' role as chair instead of being a participant. Doc. No. 181, Trial Tr. at 9-37 - 9-38. Carethers recalled that at one specific meeting, Plaintiff took over for 45 minutes by delegating assignments inappropriately, including to Carethers himself. Id. at 9-38 - 9-39. Carethers observed that others reacted with surprise and disgust, and several participants later told Carethers that they dreaded coming to meetings with Plaintiff. Id. at 9-39 - 9-40. Plaintiff's conduct caused Carethers to cut Plaintiff off in later meetings. Id. at 9-40 - 9-41.

41. Wayne Valey, a VA Program Analyst assigned to the Business Policy Office of Veterans Health Administration's Chief Business Office in Denver, consulted on the SVH project and attended meetings with Plaintiff during his first visit in May 2007. Doc. No. 125-9, Valey Decl. ¶ ¶ 6, 10. Although his interactions with Plaintiff spanned only a few days, he had such a negative reaction to Plaintiff that he raised his concerns with Carethers. Specifically, Valey found that Plaintiff lacked experience and appeared to detach himself from process, expressing that it was the State's, not the VA's, responsibility to make progress on the Project. Id. ¶ 10. Valey also observed that Plaintiff appeared frustrated and/or agitated at meetings -- e.g., grimacing, raising his eyebrows -- to the point where Valey spoke to Carethers about his observations and forwarded to Carethers a brief email outlining the signs to watch for in individuals that may indicate the potential for workplace violence. Id. ¶ ¶ 11, 13; Def.'s Ex. 523. Although Carethers did not believe that Plaintiff was dangerous, Valey's concerns were additional confirmation to Carethers that Plaintiff had difficulties getting along with others, which was necessary for the SVH project. Doc. No. 181, Trial Tr. at 9-45.

42. In comparison to Valey's and Carethers' testimony, Carswell J. Ross Jr., who was the State Veterans' Services Coordinator, attended some meetings on the SVH project and testified that Plaintiff contributed positively to the project and was helpful, engaged, and focused during meetings. JangDhari also attended some meetings and testified that she did not recall Plaintiff acting inappropriately. The

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court finds that such limited testimony does not discredit Carethers' and Valey's credible testimony that Plaintiff acted aggressively and/or inappropriately during at least some of these meetings.

43. Plaintiff's difficulties with others were not limited to his substantive work on these two projects. Rather, Carethers fielded several employee complaints and/or issues regarding Plaintiff over this time, including:

o In June 2007, Carethers learned from the Provost Marshal that Plaintiff had attempted to restrict an active duty soldier from parking at the CFA parking lot. Carethers advised Plaintiff that he was not responsible for policing the parking lot and that according to the Provost Marshal, the CFA parking lot was open for anyone to park there. Although Carethers believed this conversation should have ended the discussion, Plaintiff criticized Carethers' leadership and continued to raise the issue multiple times. See Def.'s Ex. 1024; Doc. No. 181, Trial Tr. at 9-35 - 9-37. Carethers found Plaintiff's conduct " very inappropriate." Doc. No. 181, Trial Tr. at 9-37.
o In April 2008, Carethers received complaints from Administrative Officer Laverne Spillane and Dr. Cara Lum after Plaintiff had moved a credenza from Lum's office without Lum's permission. Carethers was informed that Lum had insisted that she be present for the move to ensure that patient information was kept confidential, yet Plaintiff went ahead and moved it outside her presence. Def.'s Ex. 521. Spillane also provided a written complaint, asserting that Plaintiff used a threatening demeanor with her in seeking to have the furniture moved, raised his voice, and stormed out of her office. Def.'s Ex. 522. After reviewing this incident, Carethers recommended that Plaintiff be suspended for seven days, and the Chief of Staff William Dubbs decided to suspend Plaintiff for two days. Def.'s Ex. 527. At trial, Plaintiff testified that he does not think he did anything wrong, and that he was simply trying to help Lum. Doc. No. 176, Trial Tr. 7-159-160.
o On April 10, 2008, Carethers received a written complaint from Jackie Woodruff, Carethers' interim secretary, stating that Plaintiff took her cell phone from her office. She reported that after she called it several times, Plaintiff finally answered and returned it. Def.'s Ex. 524. Plaintiff testified that he was sorry this incident occurred and acknowledged that it was wrong for him to take the phone, but asserted that he " didn't realize it was her phone." Doc. No. 176, Trial Tr. at 7-161.

44. Carethers credibly testified that he attempted to counsel Plaintiff regarding his effectiveness on several occasions, and in response, Plaintiff would deflect the conversation, attack Carethers' leadership, become aggressive, and argue that he was being treated differently. Doc. No. 181, Trial Tr. at 9-62 - 9-63.

45. In June 2008, Carethers took Plaintiff off the SVH project. Carethers' reasons were two-fold. One reason was Plaintiff's lack of effectiveness in his administrative role due to his " personality traits and the constant conflicts that were occurring" that result in " a lot of work to do damage control." Id. at 9-20. The second reason was that the project was entering the survey phrase, requiring specialized clinical experience that Plaintiff did not have (even Carethers needed to attend training). Thus, by August 2008, Plaintiff's only duty on this project was to set up meetings. Id. at 9-67 - 9-68.

2. Plaintiff's Work from August 2008 to 2010

46. By August 2008, Plaintiff had very little work to do at the CFA, and Carethers

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assigned Plaintiff only specific duties requiring minimal relationships with other employees. It appears that by this time, Carethers simply had had enough of dealing with Plaintiff -- Carethers had given Plaintiff ample opportunity to show his ability to work in a team atmosphere on substantive work, and time and again, Carethers had to deal with Plaintiff's interpersonal problems, defensive attitude, and immature antics.

47. Carethers credibly testified that he did not believe that Plaintiff could complete GS-13 level work because such work requires an employee to be independent, interact with others, and deal with complex issues. Id. at 9-88. Instead, the work assigned to Plaintiff was well below his grade level and occupied at most only 8 hours of his time per month.

48. For example, Carethers tasked Plaintiff with researching and proposing a solution to the feral cat problem in the area, and being the combined federal campaign key worker, which required him to seek donations from the CFA staff. See Pl.'s Ex. 342. Carethers also assigned Plaintiff the ongoing tasks of performing Material Safety Data Sheet (" MSDS" ) inventory ( i.e., taking an inventory of the hazardous materials at the CFA), inspecting fire extinguishers kept in nurse vehicles, and conducting controlled substance inspections, which required another employee to assist him because he did not have permission to use the computerized personnel reporting system necessary for this task. The MSDS inventory project resulted in Plaintiff sending multiple emails to Carethers seeking clarification, information, and in one instance even complaining that Spillane had cancelled an order for $28.45 worth of index tabs which Plaintiff asserted he needed to complete the task. See Def.'s Exs. 535, 536, 538. Needless to say, these are issues that Plaintiff could have figured out on his own and/or asked others for guidance instead of raising it to Carethers. As even Plaintiff admitted, the MSDS project was simple -- requiring him to only count the amounts of hazardous materials, Doc. No. 174, Trial Tr. at 6-12 - 6-13 -- such that the court agrees with Carethers' assessment that Plaintiff's multiple emails to Carethers, who is overseeing the entire GREC, were inappropriate.

49. Carethers further credibly testified that he did not see any improvement as to Plaintiff's effectiveness over this time -- Plaintiff was hostile during their daily morning meetings and he never volunteered for any particular task (Plaintiff testified that he believes it is not his job to find work, but Carethers' job to assign it, Doc. No. 176, Trial Tr. at 7-189). Although Carethers tried to find Plaintiff work outside of the GREC, such offers were declined (based on others' views that Plaintiff was a problem employee), despite understaffing throughout the VA. See, e.g., Doc. No. 178-3, Gary VanBrocklyn Decl. ¶ 3; Doc. No. 178-4, David Bernstein Decl. ¶ 9; see also Doc. No. 181, Trial Tr. at 9-77 - 9-79.

50. Carethers also continued to have problems dealing with Plaintiff's interactions with others. For example, in May 2010, Spillane emailed Plaintiff, copying Carethers and two others, asking Plaintiff to remove a bottle of insecticide from his office because it presents a safety hazard. In response, Plaintiff sent multiple emails to Spillane demanding the basis for her assertions and other information. When she failed to respond, Plaintiff emailed Carethers, asserting that her nonresponsiveness " reflects lack of common courtesy and creates a HOSTILE WORKING CLIMATE," and that Carethers' failure to counsel Spillane " is a reflection on your leadership and management." Def.'s Ex. 542.

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51. As another example, Carethers and Spillane once saw Plaintiff approximately ten or fifteen minutes walking distance from the CFA during working hours, and Carethers asked why he was so far away from the building. In response, Plaintiff sent multiple emails, questioning why Carethers was targeting him, and whether Carethers also questioned Spillane about what Plaintiff saw was her violation of the parking policy. Plaintiff attached a series of emails between himself and Randell Locke, an MP, reporting several instances in which Spillane parked her vehicle in the loading dock area. See Def.'s Ex. 545. Plaintiff also confronted Carethers in his office, raising his voice and pointing his finger at Carethers. Doc. No. 181, Trial Tr. at 9-75 - 9-76. In an email response, Carethers explained, among other things, that (1) Plaintiff was seen at various times throughout the hallways and other areas talking to other employees and that these times should be factored into his break times; and (2) the parking policy and patrolling is not Plaintiff's responsibility. Def.'s Ex. 545.

52. Plaintiff testified that he walked to relieve the stress of having no work to do, and after this altercation, he was afraid leave his desk, although he continued his walks. Doc. No. 180, Trial Tr. at 8-107. The court finds that Plaintiff's assertion that he was afraid to leave his desk was unwarranted and a grave ...


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