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.

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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.
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
Specialists, 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 deliberately 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

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deliberately omitted sexual orientation as a basis because you understood
that it was not covered by Title VII.”
See document here:
https://www.scribd.com/document/376379296/Department-of-Veterans-
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 Mitchell 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 evidence 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.”

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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 originally 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.