office of special counsel 082510

U.S. OFFICE OF SPECIAL COUNSELl30l Clay Street, Suite 1220N

Oakland, California I 4612-5217Tel: (510) 637-3464Fax: (510) 637-3474

San Francisco Bay Area Field Office

August 25,2010

Mr. Oliver MitchellP.O. Box l9l2Long Beach, CA 90801

Re: OSC File No. MA-09-2658

Dear Mr. Mitchell:

The Office of Special Counsel has completed its investigation of your complaint ofprohibited personnel practices against the Department of Veterans Affairs (DVA). Youalleged that agency officials, including your second-level supervisor, Dr. Suzie El-Saden,Imaging Services Chief of DVA's Greater Los Angeles Healthcare System (GLAHS),detailed you from your position as a Patient Services Assistant because of your protectedwhistleblowing disclosures related to the misuse of govemment property and overtimeabuse. 5 U.S.C. $$ 2302(bX8) and (9).

Based on our investigation, we have made a preliminary determination thatinsufficient evidence exists to establish a prohibited personnel practice. In order to provethat you were detailed because of your whistleblowing activities, we would need to show,among other things, that agency officials were aware of those activities before theydirected your detail. We were unable to develop the necessary evidence, however.Although we confirmed that you made protected disclosures to the DVA Office ofInspector General (OIG), the OIG insisted that it kept your identity confidential.Furthermore, all agency officials who may have been involved in the decision to detailyou denied being aware of your role in making protected disclosures, untii after theymade the decision. No witness was able to provide testimony that contradicted theseagency officials. Neverthelesss, we pursued your belief that agency officials might havebecome aware of your protected whistleblowing as a result of telephone calls you madeto the office of the Chief of Staff of GLAHS, Dean Norman. You indicated that whenyou called the office you spoke to members of Norman's staff, albeit not to Normanhimself. While members of Norman's staff did recalI speaking with you, they denied thatyou made whistleblowing disclosures to them, that you mentioned that you had contactedthe OIG or that they subsequently communicated to Norman or any other agency officialsthat you had made whistleblowing disclosures. Rather, they testified that you advisedthem that you felt you were the victim of discrimination and harassment. Accordingly,we could not establish that the offrcials who made the decision to detail you were awareof your whistleblowing activities at the time of their decision.

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IJ.S. Office of Special CounselMr. Oliver MitchellPage 2

In addition, there is strong evidence that the decision to detail you was not theresult of your protected whistleblowing, but rather because of alleged conflicts betweenyou and co-workers. The officials who made the decision to detail you testified explicitlythat they acted based solely on the alleged conflicts. Their testimony was colroboratedby two of your co-workers, who, in the time frame immediately before your detail,furnished statements to your supervisors complaining that you had threatened orotherwise harassed them at the workplace. In light of these complaints, agency officialscould have reasonably believed that detailing you to another location was waffanted.

For these reasons, we have determined that the evidence is insufficient to prove thatyour detail was aprohibitedpersonnel practice under 5 U.S.C. $$ 2302(bX8) and (9).Nevertheless, before we make a final decision in this matter, we would like to provideyou with 13 days to submit any written comments that you would like us to consider.You may send them to me at the above address or to my e-mail address,j siegelman@osc.gov.

Sincerely,

{\,,"{l q b,/L

Joseph E. SiegelmanSenior Trial Attorney

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