Norris v. Principi, C-3-94-507.

• Decision Date: 07 February 2003
• Docket Number: No. C-3-94-507.,C-3-94-507.
• Citation: 254 F.Supp.2d 883
• Court: U.S. District Court — Southern District of Ohio
• Parties: Spencer NORRIS, Plaintiff, v. Anthony J. PRINCIPI, Secretary of Veterans Affairs,<SMALL><SUP>1</SUP></SMALL> Defendant.

Page 883

254 F.Supp.2d 883

Spencer NORRIS, Plaintiff, v. Anthony J. PRINCIPI, Secretary of Veterans Affairs,¹ Defendant.

No. C-3-94-507.

United States District Court, S.D. Ohio, Western Division.

February 7, 2003.

FINDINGS OF FACT; OPINION; CONCLUSIONS OF LAW; JUDGMENT TO BE ENTERED IN FAVOR OF DEFENDANT AND AGAINST PLAINTIFF; TERMINATION ENTRY

RICE, Chief Judge.

Plaintiff Spencer Norris has brought this litigation to recover damages he alleges he suffered as a result of the refusal to permit him to continue to enter into contracts as a retired annuitant investigator of equal employment opportunity ("EEO") complaints filed by employees of the United States Department of Veterans Affairs ("VA"). According to the Plaintiff, an African-American, he has been denied that opportunity, because of his race. Plaintiff also contends that he was required to submit rewritten reports concerning one of his investigations because of his race. In addition to seeking an award of compensatory damages, the Plaintiff requests a mandatory injunction, directing the Defendant to utilize his services as a retired annuitant investigator. The Plaintiff brings this action against the Secretary of Veterans Affairs in his official capacity. This case was tried with this Court sitting as trier of facts. Now, pursuant to Rule 52 of the Federal Rules of Civil Procedure, this Court sets forth its Findings of Fact and Conclusions of Law.

I. Findings of Fact

1. The VA operates more than 200 medical centers and other facilities throughout the United States.

2. When an employee of the VA files a charge of employment discrimination or asserts that he or she has been retaliated against in violation of employment discrimination statutes, an initial attempt to resolve the complaint is made at the local VA facility, through mediation. If those efforts do not resolve the matter, the complaint is investigated either by assigning the investigation to an ad hoc investigator (i.e., an employee of the VA who would conduct such an investigation in addition to performing his or her normal duties), or by assigning it to a retired annuitant investigator. Retired annuitant investigators are former employees of the VA, who are retained as independent contractors to investigate charges of employment discrimination at VA facilities. The activities of the retired annuitant investigators are supervised by the VA's Office of Equal Opportunity ("OEO").

3. Retired annuitant investigators act as neutral fact finders for the VA when investigating charges of employment discrimination at VA facilities. After conducting their investigations, they must write reports which contain their factual findings and analysis. These reports frequently serve as the basis for senior personnel to take action on a particular complaint. That action could include adjusting the complainant's employment relationship or even disciplining those employees who violated the complainant's equal opportunity rights.

4. After officials at the VA's OEO determine that a report meets the requirements of the investigator's contract and the relevant manuals, the facility at which the complaint of discrimination was lodged is authorized to pay the investigator.

5. The Plaintiff is an African-American. From 1970, until he retired in 1989, Plaintiff was employed by the VA, rising to the position of Associate Chief of a VA facility located in St. Louis, Missouri.² Before he retired from the VA, the Plaintiff filed charges of discrimination, alleging that he had been discriminated against on the basis of his race.

6. After he had retired from the VA, Plaintiff applied to become a retired annuitant investigator of EEO complaints for that Government department. Although he did not receive a response to his initial inquiry, he was given the opportunity to become such a retired annuitant investigator in response to his second letter. To qualify as such an investigator, Plaintiff was required to complete a week-long training session. Plaintiff successfully completed his requisite training during July, 1990, in Chicago, Illinois.

7. In 1990, after having successfully completing his training, the Plaintiff began conducting investigations and writing reports as a retired annuitant investigator. From 1990, into July, 1993, the Plaintiff was assigned a total of 63 cases to investigate.³ He prepared reports after having completed his investigations, which were submitted to officials at the VA's OEO. Plaintiff was paid for each of those investigations and reports. While being utilized as a retired annuitant investigator, Plaintiff acted as an independent contractor, rather than being an employee of the VA.

8. On July 22, 1993, the Plaintiff was given the assignment of investigating four complaints charging discrimination and retaliation, filed by Sam Henry Smith ("Smith"). Those complaints arose out of Smith's employment at the West Side Medical Center, a Chicago-area VA facility.⁴ In particular, Smith asserted that he had been the victim of race and age discrimination, as well as being retaliated against, while he was employed at that facility and that he had been discharged because of his race, age, handicap and in retaliation for having filed a previous charge of discrimination.⁵ During September and early October, 1993, Plaintiff conducted an investigation at the West Side Medical Center. Plaintiff wrote two reports setting forth his analysis of the evidence and conclusions, which he submitted to the OEO in early October, 1993.⁶ Each of those reports contained a conclusion in which Plaintiff found that Smith had been the victim of race, age and handicap discrimination, as well as having been retaliated against for having previously filed a charge of discrimination.⁷

9. The two reports which Plaintiff had submitted to the OEO were shown to John DeNardo ("DeNardo"), the Director of the West Side Medical Center, who sent a memorandum to the OEO requesting that a supplemental investigation be conducted. That memorandum also pointed out alleged shortcomings in the Plaintiffs two reports.

10. After being provided a copy of De-Nardo's memorandum, Plaintiff responded with his own memorandum with which he attempted to refute DeNardo's criticisms of his two reports. On December 1, 1993, Plaintiff sent his memorandum to Michael Botello ("Botello"), an EEO specialist employed by the VA's OEO.

11. Despite having submitted two reports and a memorandum to the OEO, Plaintiff was not paid for his work in connection with the Smith complaints. As a consequence, he telephoned the OEO in order to ascertain when he might receive his payment. On November 16, 1993, he spoke with Nick Martinez ("Martinez"), an employee in the VA's OEO, and came away with the distinct impression that he would not be paid until he changed the conclusions in his reports that Smith had been the victim of discrimination and retaliation. That impression was reinforced by a letter under date of February 2, 1994, from Gerald Tognetti ("Tognetti"), which was signed by Riley Gordon ("Gordon").⁸ The letter recounted that Plaintiff and Martinez had spoken on November 16th, and stated that it had been agreed that the conclusions in Plaintiffs reports, that Smith had been the victim of discrimination and retaliation, were not supported by the evidence that was discussed therein. As a consequence, Tognetti's February 2nd letter continued, it was suggested that the Plaintiff revise his conclusions. Tognetti concluded by writing that upon receipt of the revised conclusions, the Plaintiffs reports would be reviewed for compliance and accuracy before payment was authorized.

12. On March 1, 1994, Plaintiff responded by sending a letter to Gerald Hinch ("Hinch"), Deputy Assistant Secretary of the VA for Equal Opportunity. Therein, Plaintiff indicated that he believed that his integrity and professionalism were being questioned and that the failure to resolve the matter was affecting his ability to receive additional assign ments as a retired annuitant investigator. Plaintiff also questioned whether it was appropriate for the OEO to challenge the findings and recommendations of an investigator.

13. On March 23, 1994, Botello called Plaintiff to respond to his (Plaintiffs) letter to Hinch.⁹ Botello began the conversation by explaining that the two of them were going to discuss the entire matter and that the Plaintiff would receive a letter which summarized their conversation. Botello also indicated that he understood that the Plaintiff had gotten angry over Martinez' telephone call the previous November and that he sympathized with Plaintiff. However, Botello stressed that both he and Martinez were attempting to communicate to Plaintiff that the analysis and the conclusions in his reports did not logically coincide. Botello explained that the analysis of the evidence contained in the Plaintiffs reports did not lead one to believe that Smith had been the victim of discrimination.¹⁰ Botello emphasized that, although he was not necessarily disagreeing with the Plaintiffs conclusions in that regard, those conclusions were not supported by the evidence he had analyzed. Botello told Plaintiff that he had to rewrite his analysis and conclusions so that the latter would logically follow from the former. Botello also indicated that Plaintiff would need to go through retraining and that he would not be given any additional complaints to investigate until that was accomplished and the Smith matter was resolved (i.e., he had submitted acceptable, rewritten reports). Botello asked the Plaintiff when he would be able to submit the rewritten reports. Plaintiff did not want to provide a specific date, preferring to await the letter which Botello had promised.¹¹ Botello repeatedly told the Plaintiff that he should not delay the rewriting of his two reports until he received the letter. In addition, he told the Plaintiff that one of the rewritten reports would be due on April...