Oliver Bruce Mitchell IIIPO Box L912

Long Beach, California90801

18 September 2009EEOGLAVAMC

From: Oliver B. Mitchell III, Patient Services Assistant, Imaging Department, GLA VAMCTo: Donna Beiter, Director, Veterans Affairs Medical Center, Los Angeles, Ca

Mary Moore, Manager Employee Relations, Veterans Affairs Medical Center, Los Angeles, Ca

Subj: RESPONSE TO LETTER FROM DONNA BEITER DATED SEPTEMBER 1, 2009

In response to your letter dated September 1,2009, postmarked September 9,2009 and received onSeptember 10, 2009 the following Information is provided:

The second paragraph, l't sentence states "you were detailed out of Imaging Service to unclassifiedduties on June 5,2009 pending completion ofan investigation into allegations of inappropriateconduct."

The phrase or wording "investigation into allegations of inappropriate conduct" establishes the fact thatthis detail is:

l. Adverse

2. Formal

3. Binding between the Agency and AFGE Collective Bargaining Agreement

The third paragraph, l't sentence states "Fact-Finding is essential when facts about an incident orinteraction are not clear, especially before disciplinary action is proposed."

You state "before disciplinary action is proposed." The phrase or wording can be likened to "potentialdisciplinary or adverse action." As in this case Management is conducting a Fact Finding "intoallegations of inappropriate conduct "that can lead to "a proposed disciplinary action."

Refer to the VA Handbook 5021 Employee/ Management Relations, Part I, Disciplinary and AdverseActions Under Tifle 5, Chapter 1 General, Item #7 Determining the Facts, A. Inquiry and Investigation.

1. ,In cases involving a potential disciplinary or adverse action, inquiry will be made into the

incident or situation as soon as possible to obtain the facts and determine what action, if any iswarranted.

Therefore on June 5,2009 when you detailed me for "allegations of inappropriate conduct" you statedyou would conduct an investigation (also known as Fact Finding) ofthe allegations, in doing so you

-- have established my right to examine any documents, statements, e-mails, photographs etc. that bearmy name and/or SSN. This evidence is separate from any "Evidence File" that is established.

Refer to the Master Agreement Article 16, Employee Rights, Section 6, Access to documentation states"employees have the right to be made aware ofand receive copies of any information specific to thempersonally maintained under their name and./or SSN. This includes any documentation which is notcovered by offrcial records referenced in Article 23 Official Records."

The fourth paragraph, l't sentence states "allegations ofa Hostile Work Environment in Imaging havealso been raised."

It is still unclear if Management is referring to my documented evidence of a Hostile WorkEnvironment or those of another or group of others.

The fourth paragraph, 2nd sentence states "Management has an obligation to review these allegations."Additionally, the fourth paragraph, 3'o sentence states "the Fact Finding interview presented you withan opporhrnity to clarify your own concems about the work environment."

As stated in my Rebuttal Letter to the "Authorized Absence and Detail Letter dated June 5, 2009" I findManagement's response to my "concems about the work environment" to be untimely. Managementfailed "to review the allegations" as they were presented over the last 18 months. You have onlychosen to "review the allegations" in response to my filing an EEO and OIG complaint. I consideryour review to be untimely after the fact.

As a result of Management's untimely review of my complaints and having filed such complaints I'amnot obligated to discuss the nature, details or dissatisfaction as you have indicated.

Refer to VA Handbook 5977 Equal Employment Opportunity Discrimination Complaints Process,Chapter 3, the Formal Discrimination Complaint Process.

On May 26, 2009 I filed a formal complaint of discrimination, VA Form 4939. On June 24, 2009 Ireceived a "Notice of Acceptance for Formal Complaint."

Per Chapter 3 of the VA Handb ook 5977,Item #4, A. The ORM Regional EEO Officer/Field Managerassigns complaints for investigation, by letter, to the EEO Investigator with concurent notice to thecomplainant/representative and ...

Item #4, B. states "the EEO Investigator will determine the method of investigation i.e. on site, desk(telephone) written affidavit aad Fact Finding conferences.

Item #4, C. states "the EEO Investigator will work with the EEo/Diversity ProgramManager/Liaison/Specialists to schedule the investigation, schedule witnesses, acquire documents andto make other arrangements necessary for the effrcient conduct ofthe investigator.,,

On August 27, 2009 I contacted ORM to inquire ifany investigator had been assigned to my complaint.The response I received was "no investigator had been assigned to my complaint by Central Office."Therefore I find Donald Heuman's questioning and misrepresentation to be null and void.

The third paragraph, 6s sentence states "to date, it is my understanding that no disciplinary or adverseaction has been proposed." Refer to Donald Heuman's letter dated July 29,2009 addressed to LyndaEaton, Vice President, Local 1061, AFGE.

The third paragraph, 2nd sentence states "in fact, employee's can be subject to disciplinary action forrefusing to participate in the Fact Finding process." Although Donald Heuman made no mention of myname in that particular sentence, when taken in the context of the letter he has and is "proposingdisciplinary action" for not participating in the Fact Finding process.

Therefore you are inconect in your statement as mentioned in the third para gaph,2"d sentence.Additionally the position of Management is that Im "obligated" if so there would be no need to"persuade me" as Donald has stated.

Refer to the fourth paragraph, 4ft sentence states "please let me know by the close ofbusiness Friday,July 31, 2009 whether you have persuaded Mr. Mitchell to participate in Fact Finding one or both ofthose days."

Refer to Article 12, Details, Reassignments and Temporary Promotions, Section 1. States:

A. A detail is the temporary assignment of an employee to a different position for a specifiedperiod of time with the employee retuming to their regular duties at the end of the detail ...

B. Details ofone (1) week or more shall be recorded and maintained in the Offrcial PersonnelFolder.

C. The following procedures shall apply when offering Noncompetitive Details of ten ( 1 0)consecutive workdays or more to both classified and unclassified positions:

For reasons that are more than obvious Management has detailed me under the guidelines of the VAHandbook 5021 Employee/I4anagement Relations.

Article 13, Discipline and Adverse Action, Section 10, Investigation of Disciplinary Actions states:

A. Management will investigate an incident or situation as soon as possible to determine whetheror not discipline is warranted ...

B. Disciplinary investigations will be conducted fairly and impartially, and a reasonable effon willbe made to reconcile conflicting statements by developing additional evidence. In all cases, theinformation obtained will be documented. Supervisory notes may be used to support an actiondetrimental to an employee only when the notes have been shown to the employee in a timelymanner after the occrurence ofthe act and a copy provided to an employee as provided for inArticle 23 Official Records.

In your letter dated September 1, 2009, third paragaph, 4ft sentence states "generally, documents arenot shared with employees until and unless disciplinary action is provided." Again, you are inconect Isuggest you familiarize yourself with the VA Handbook 5021, 5977 and $e Collective BargainingAgreement.

In your letter dated September 1, 2009, frfth paragraph, l't sentence states "with regard to yourstatement that the conduct of Mr. Donald Heuman, Human Resources Specialists was aggressive,intimidating and threatening I'am not aware of any report filed with the VA Police by you or LyndaEaton who was present with you in the meeting identifring any such conduct by Mr. Heumal."

In response the absence of a Police Report does not mean the incident did not occur. The incident wasreported to Lynda Eaton at the conclusion of our meeting and a Report of Contact was made. Iinterpret your statement to mean that no such action will be taken against Donald Heuman for hisactions. You should refer to my Report of Contact if you are unsure as to why there is no PoliceReport.

The second paragtaph,2nd sentence of your letter dated September 1,2009 states "the letter datedAugust 4, 2009 was issued for the purpose of informing you that the Detail to Primary and AmbulatoryCare would be extended." However the Fact Finding meeting occurred on August 5, 2009 one dayafter the date of the 2nd Detail Letter. This indicates io me thit you and Human Resource Offrcials hadno intentions of "retuming me to my regular duties upon the completion of the l't detail.- Additionally,Mr. Heuman did not present this Detail Letter to me or Mrs. Eaton during the Fact Finding meeting.

Additionally the second paragraph, 3'd sentence ofyour Detail Letter dated August 4, 2009 states "yourtime and attendance will continue to be handled by Desiree Hill-Moerbt." The text of the letter is thesame except for the insertion of this sentence. Am I under increased surveillance?

In closing Management has failed to disclose the nature of the complaint or allegation, failed to provideany Supervisor notes, statements, witnesses, documents, photos or emails as requested.

Management's acknowledgement of any Hostile Work Environment is untimely. Management'sactions are in response to my filing any EEO and OIG complaint(s).

Refer to the Whistleblower Protection Act of 1989 (Public LawNo. 101-12) which specifically affordsprotections and entitlements to employees who allege reprisal for engaging in Whistleblowingactivities.

Also refer to Article 16 Employee Rights, Section 5, 1't Amendment Rights states "employees have theright to present their views to Congress, the Executive Branch, or other authorities and to otherwiseexercise their l"t Amendment Rights without fear of penalty or reprisal.

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