Frederic Collins v. Robert A. Mcdonald, et al

NOTICE OF MOTION AND MOTION for Summary Judgment

C.D. Cal.October 7, 2016

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EILEEN M. DECKER United States Attorney DOROTHY A. SCHOUTEN Assistant United States Attorney Chief, Civil Division ROBYN-MARIE LYON MONTELEONE Assistant United States Attorney Chief, General Civil Section, Civil Division JUSTIN A. OKUN (Cal. Bar No. 230954) Assistant United States Attorney Federal Building, Suite 7516 300 North Los Angeles Street Los Angeles, California 90012 Telephone: (213) 894-7354 Facsimile: (213) 894-7819 E-mail: Justin.Okun@usdoj.gov Attorneys for Defendant ROBERT A. MCDONALD Secretary, Department of Veterans Affairs UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA FREDRIC COLLINS, Plaintiff, v. ROBERT A. MCDONALD, Secretary, Department of Veterans Affairs; et al., Defendants. No. CV 14-04861 JAK (FFMx) DEFENDANT ROBERT A. MCDONALD’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT Hearing on Motion Date: December 5, 20161 Time: 8:30 a.m. Place: Courtroom 750 Edward R. Roybal Federal Building and United States Courthouse Honorable John A. Kronstadt United States District Judge 1 December 5, 2016 is a closed hearing date; however, Defendant will file concurrently herewith an ex parte application to allow this Motion to be heard on that date as it is currently the date for hearing Defendant’s pending Motion to Dismiss (Doc. 51), and there are no hearing dates available until February 6, 2017, four weeks after the last date to hear motions in this case. (Doc. 37, Scheduling Order.) Case 2:14-cv-04861-JAK-FFM Document 61 Filed 10/07/16 Page 1 of 23 Page ID #:1161 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NOTICE OF MOTION AND MOTION TO DISMISS PLEASE TAKE NOTICE that on December 5, 2016, at 8:30 a.m., or as soon thereafter as he may be heard, Defendant Robert A. McDonald, Secretary of the Department of Veterans Affairs, will, and hereby does, move to dismiss this action filed by Plaintiff Fredric Collins pursuant to Rule 56 of the Federal Rules of Civil Procedure. This Motion will be made in Courtroom 750 in the Edward R. Roybal Federal Building and United States Courthouse located at 255 East Temple Street in Los Angeles, California. The Motion is made on the following grounds: 1) Plaintiff’s claims of disability, race, and age discrimination all fail because, accepting either of Plaintiff’s two versions of facts as true, either there was no job available when he applied in January 2010 or Plaintiff failed to file a complaint of discrimination with the agency within the required 45-day period. 2) A claim for discrimination cannot be brought against Defendant based on the Americans with Disabilities Act (“ADA”). 3) Even if Plaintiff had brought his claim pursuant to the Rehabilitation Act of 1973, he is not an “individual with a disability” as defined in 42 U.S.C. § 12102(1) and thus any such claims fail as a matter of law. 4) Plaintiff has not presented evidence of similarly situated individuals not in his protected classes who were treated more favorably than him. 5) Plaintiff’s claims of disability, race, and age discrimination also fail because they are premised on the mistaken belief that Plaintiff was entitled to some form of priority status in hiring which guaranteed him a job with the federal government. This Motion is based on this Notice of Motion and Motion, the attached Memorandum of Points and Authorities, Statement of Uncontroverted Facts and Conclusions of Law, the concurrently filed Declarations of Jose M. Calazzo, Evan Stein, Case 2:14-cv-04861-JAK-FFM Document 61 Filed 10/07/16 Page 2 of 23 Page ID #:1162 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Robert Gustafson, and AUSA Justin A. Okun, the pleadings, records, and files in this action, and such other evidence and argument as may be presented at the time of hearing. This Motion is made following the conference of counsel pursuant to Local Rule 7-3, which was held on September 27, 2016. Dated: October 7, 2016 Respectfully submitted, EILEEN M. DECKER United States Attorney DOROTHY A. SCHOUTEN Assistant United States Attorney Chief, Civil Division ROBYN-MARIE LYON MONTELEONE Assistant United States Attorney Chief, General Civil Section, Civil Division /s/ Justin A. Okun Assistant United States Attorney Attorneys for Defendant ROBERT A. McDONALD Secretary, Department of Veterans Affairs Case 2:14-cv-04861-JAK-FFM Document 61 Filed 10/07/16 Page 3 of 23 Page ID #:1163 i 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS MEMORANDUM OF POINTS AND AUTHORITIES ................................................... 1 I. INTRODUCTION ................................................................................................... 1 II. LEGAL STANDARD ............................................................................................. 2 A. Summary Judgment ....................................................................................... 2 B. Employment Discrimination ......................................................................... 3 III. ARGUMENT ........................................................................................................... 5 A. Plaintiff cannot present a prima facie case of employment discrimination because he did not apply, nor was he rejected, for a job for which the employer was seeking applicants or, if he did apply and was rejected, then he failed to initiate EEO counseling within the required 45-day period. ................................................................................. 5 B. Plaintiff cannot bring a claim against Defendant based on the ADA. .......... 6 C. Even if Plaintiff had brought his claim of disability discrimination under the Rehabilitation Act, he has not made out a prima facie case of employment discrimination based on disability because he is not an individual with a disability. ...................................................................... 7 D. Plaintiff cannot present any evidence of similarly situated individuals without a disability, of a different race, or younger than Plaintiff who were treated more favorably than him. ......................................................... 9 E. Even assuming Plaintiff could establish a prima facie case of employment discrimination, there is a legitimate non-discriminatory reason he was not hired – he never applied for an open position ............... 10 F. With regard to Plaintiff’s disability discrimination claim, there is a presumption against discrimination because Gustafson himself is disabled. ....................................................................................................... 10 Case 2:14-cv-04861-JAK-FFM Document 61 Filed 10/07/16 Page 4 of 23 Page ID #:1164 ii 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 G. Plaintiff’s claims of discrimination in hiring are entirely premised on his mistaken belief that he was entitled to a job with the federal government .................................................................................................. 11 IV. CONCLUSION ...................................................................................................... 14 Case 2:14-cv-04861-JAK-FFM Document 61 Filed 10/07/16 Page 5 of 23 Page ID #:1165 iii 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Federal Cases Abell v. Dep’t of the Navy, 343 F.3d 1378 (Fed. Cir. 2003) .................................................................................. 13 Albertson'S, Inc. v. Kirkingburg, 527 U.S. 555 (1999) ..................................................................................................... 8 Am. Title Ins. Co. v. Lacelaw Corp., 861 F.2d 224 (9th Cir. 1988) ........................................................................................ 7 AMTRAK v. Morgan, 536 U.S. 101, 122 S. Ct. 2061, 153 L. Ed. 2d 106 (2002) ........................................... 5 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986) ......................................... 2, 3 Angel v. Seattle-First Nat’l Bank, 653 F.2d 1293 (9th Cir. 1981) ...................................................................................... 3 Boyd v. U.S. Postal Serv., 752 F.2d 410 (9th Cir. 1985) .................................................................................... 6, 7 Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986) ......................................... 2, 3 Chandler v. Roudebush, 425 U.S. 840, 48 L. Ed. 2d 416, 96 S. Ct. 1949 (1976) ............................................... 1 Charles v. Garrett, 12 F.3d 870 (9th Cir. 1993) .......................................................................................... 1 Cherosky v. Henderson, 330 F.3d 1243 (9th Cir. 2003) .................................................................................. 2, 6 Coons v. Sec’y of the U.S. Dep’t of the Treasury, 383 F.3d 879 (9th Cir. 2004) ........................................................................................ 8 Crock v. Sears, Roebuck & Co., 261 F. Supp. 2d 1101 (S.D. Iowa 2003) ....................................................................... 8 Dzung Chu v. Oracle Corp. (In re Oracle Corp. Sec. Litig.), 627 F.3d 376 (9th Cir. 2010) ........................................................................................ 3 Case 2:14-cv-04861-JAK-FFM Document 61 Filed 10/07/16 Page 6 of 23 Page ID #:1166 iv 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Harper v. Wallingford, 877 F.2d 728 (9th Cir. 1989) ........................................................................................ 3 Heisler v. Metro. Council, 339 F.3d 622 (8th Cir. 2003) ........................................................................................ 8 Hobdy v. L.A. Unified Sch. Dist., 386 F. App’x 722 (9th Cir. 2010) ............................................................................... 10 Int’l Bhd. of Teamsters v. United States, 431 U.S. 324 (1977) ..................................................................................................... 4 Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 97 S. Ct. 1843, 52 L. Ed. 2d 396 (1977) ............................................... 3 Jackson v. Foodland Super Mkt., Ltd., 958 F. Supp. 2d 1133 (D. Haw. 2013) ....................................................................... 10 Kaplan v. City of N. Las Vegas, 323 F.3d 1226 (9th Cir. 2003) ...................................................................................... 7 Kennedy v. Applause, Inc., 90 F.3d 1477 (9th Cir. 1996) ........................................................................................ 7 Kraus v. Presidio Tr. Facilities Division/Residential Mgmt. Branch, 572 F.3d 1039 (9th Cir. 2009) ...................................................................................... 6 Lyons v. England, 307 F.3d 1092 (9th Cir. 2002) ...................................................................................... 2 Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986) ............................................. 3 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973) ...................................... passim O'Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 116 S. Ct. 1307, 134 L. Ed. 2d 433 (1996) ........................................... 4 Pinto v. Massapequa Pub. Sch, 820 F. Supp. 2d 404 (E.D.N.Y. 2011) .......................................................................... 8 Scalese v. Babbitt, No. 98-35525, 1999 U.S. App. LEXIS 26605 (9th Cir. Oct. 20, 1999) .............. 11, 12 Scott v. Mabus, 618 F. App’x 897 (9th Cir. 2015) ................................................................................. 9 Case 2:14-cv-04861-JAK-FFM Document 61 Filed 10/07/16 Page 7 of 23 Page ID #:1167 v 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993) ........................................... 4 Sturdy v. Dep’t of the Army, 440 F.3d 1328 (Fed. Cir. 2006) .................................................................................. 12 Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981) ..................................................................................................... 4 Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981) ......................................... 3, 4 Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054 (9th Cir. 2002) .................................................................................. 3, 5 Walton v. U.S. Marshals Serv., 492 F.3d 998 (9th Cir. 2007) ........................................................................................ 8 Washington v. Garrett, 10 F.3d 1421 (9th Cir. 1993) ...................................................................................... 11 Zimmerman v. Or. DOJ, 170 F.3d 1169 (9th Cir. 1999) ...................................................................................... 6 Federal Statutes 5 U.S.C. § 105 ................................................................................................................. 12 42 U.S.C. § 12102(1) ................................................................................................... 1, 7 42 U.S.C. § 12102(1)(B) ................................................................................................... 8 42 U.S.C. § 12111(5)(B)(i) .............................................................................................. 6 Federal Regulations 5 C.F.R. § 330.203(b) ..................................................................................................... 12 5 C.F.R. § 330.204(c) ...................................................................................................... 12 5 C.F.R. § 330.701 .......................................................................................................... 13 5 C.F.R. § 330.702(3) ..................................................................................................... 13 5 C.F.R. § 330.705(b) ..................................................................................................... 13 5 C.F.R. § 353.301(b) ..................................................................................................... 12 5 C.F.R. § 353.304 .......................................................................................................... 11 29 C.F.R. § 1614.105 .................................................................................................... 1, 6 29 C.F.R. § 1614.302(b) ................................................................................................. 11 Case 2:14-cv-04861-JAK-FFM Document 61 Filed 10/07/16 Page 8 of 23 Page ID #:1168 vi 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 C.F.R. § 1630.2(i)(1) .................................................................................................. 10 Federal Rules Fed. R. Civ. P. 56(c) .......................................................................................................... 2 Fed. R. Civ. P. 56(e) .......................................................................................................... 3 Case 2:14-cv-04861-JAK-FFM Document 61 Filed 10/07/16 Page 9 of 23 Page ID #:1169 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Plaintiff has brought suit on brings claims of disability discrimination under the Americans with Disabilities Act (“ADA”), race discrimination under Title VII of the Civil Rights Act, and age discrimination under the Age Discrimination in Employment Act (“ADEA”). (Second Amended Complaint (“SAC”), Doc. 50.) At the administrative level, Plaintiff asserted that he applied for a job as a respiratory therapist in January 2010 and was told there were no vacancies at that time by Robert Gustafson, a VA Human Resources (“HR”) Specialist. (Statement of Uncontroverted Facts (“SUF”) 1.) Plaintiff claimed that on June 11, 2011, he went to Gustafson’s office and overheard Gustafson state on the phone that there was in fact a respiratory therapist position open in January 2010. (SUF 2.) Plaintiff then initiated contact with an Equal Employment Opportunity (“EEO”) counselor at the VA on July 6, 2011 and presented an EEO complaint to the VA on July 18, 2011. (SUF 3.) Plaintiff’s EEO complaint was adjudicated on summary judgment at the administrative level because the administrative judge (“AJ”) found that there was in fact no respiratory therapist position available in January 2010. (SUF 4.)2 Plaintiff now claims that he actually applied for the respiratory therapist position in November 2009, when a vacancy was open. (SAC ¶ 18; SUF 5.) He testified that he now overheard Gustafson speak about the position in January 2010 and learned sometime in 2010 that a younger, Caucasian woman was hired. (SUF 6.) However, Plaintiff’s deposition testimony fatally undermines this new version of events because, if true, it is an admission that he failed to initiate EEO counseling within 45 days of this discrete act as required by law. 29 C.F.R. § 1614.105. Accordingly, summary judgment should be granted on this basis alone because “[f]ailure to comply with [29 C.F.R. § 2 “Prior administrative findings made with respect to an employment discrimination claim may, of course, be admitted as evidence at a federal sector trial de novo.” Charles v. Garrett, 12 F.3d 870, 873 (9th Cir. 1993) (quoting Chandler v. Roudebush, 425 U.S. 840, 861, 48 L. Ed. 2d 416, 96 S. Ct. 1949 (1976)). This Court has previously taken judicial notice of the AJ’s decisions. (Doc. 42 at 6 n.5.) Case 2:14-cv-04861-JAK-FFM Document 61 Filed 10/07/16 Page 10 of 23 Page ID #:1170 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1614.105] is “fatal” to a federal employment discrimination claim. Cherosky v. Henderson, 330 F.3d 1243, 1245 (9th Cir. 2003) (citing Lyons v. England, 307 F.3d 1092, 1105 (9th Cir. 2002)). Moreover, even if Plaintiff had brought his EEO claim within the required 45-day period, with regard to any disability, Plaintiff concedes that he is “fully functional as far as his normal abilities and activities are concerned,” (Doc. 50 ¶ 43), and thus not an individual with a disability under the Rehabilitation Act. Plaintiff also has not presented evidence of similarly situated individuals not in his protected classes who were treated more favorably than him. Lastly, all three claims of discrimination are based on Plaintiff’s mistaken belief that he has a “right to preferential treatment” such that he is entitled to any federal job to which he applies and, therefore, his failure to obtain a respiratory therapist position with the Department of Veterans Affairs (“VA”) must be due to discrimination. (Doc. 50 ¶ 2.) As explained below, Plaintiff’s understanding of his “right to preferential treatment” is incorrect and, in fact, undermines his claims of employment discrimination. II. LEGAL STANDARD A. Summary Judgment A court shall grant a motion for summary judgment when there is no genuine issue as to any material fact, and the moving party is entitled to judgement as a matter of law. Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). The moving party must show that “under the governing law, there can be but one reasonable conclusion as to the verdict.” Anderson, 477 U.S. at 250. Where the non-moving party has the burden at trial, the moving party need not produce evidence negating or disproving every essential element of the non-moving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). Instead, the moving party’s burden is met by pointing out that there is an absence of evidence supporting the non-moving party’s case. Id. Case 2:14-cv-04861-JAK-FFM Document 61 Filed 10/07/16 Page 11 of 23 Page ID #:1171 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 If the moving party carries its burden of production, the burden then shifts to the non-moving party to show that there is a genuine issue of material fact that must be resolved at trial. Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 256. The non-moving party must make an affirmative showing on all matters at issue for which it would have the burden of proof at trial. Celotex, 477 U.S. at 322; Anderson, 477 U.S. at 252. “The burden is not a light one. The non-moving party must show more than the mere existence of a scintilla of evidence.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010). The Ninth Circuit “has refused to find a ‘genuine issue’ where the only evidence presented is ‘uncorroborated and self-serving’ testimony.” Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061. “[M]ere disagreement or the bald assertion that a genuine issue of material fact exists” does not preclude summary judgment. Harper v. Wallingford, 877 F.2d 728, 731 (9th Cir. 1989). “A motion for summary judgment cannot be defeated by mere conclusory allegations unsupported by factual data.” Angel v. Seattle-First Nat. Bank, 653 F.2d 1293, 1299 (9th Cir. 1981). Instead, “[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986) (citation omitted). The “purpose of summary judgment is to ‘pierce the pleadings and to assess the proof in order to see whether here is a genuine need for trial.’” Id. (quoting Fed. R. Civ. P. 56(e) advisory committee’s note on 1963 amendments). B. Employment Discrimination A plaintiff in a disparate treatment suit has the burden of persuading the trier of fact that the defendant intentionally discriminated against him. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981). A plaintiff must, therefore, prove discriminatory motive by the defendant. Int’l Bhd. Of Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S. Ct. 1843, 52 L. Ed. 2d 396 (1977). Case 2:14-cv-04861-JAK-FFM Document 61 Filed 10/07/16 Page 12 of 23 Page ID #:1172 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Absent direct evidence of discrimination, a plaintiff in a disparate treatment case is required to establish as his prima facie case some set of facts “adequate to create an inference that an employment decision was based on a[n] [illegal] discriminatory criterion.” O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 312, 116 S. Ct. 1307, 134 L. Ed. 2d 433 (1996) (quoting Teamsters, 431 U.S. at 358). A plaintiff is required to show that he was denied some opportunity that he was qualified for in favor of a person not of the protected class and, as to the specific act complained of, that similarly situated employees not of a protected class were not subjected to the same adverse action. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973); St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 506, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993). If the plaintiff establishes a prima facie case, the burden shifts to the defendant to rebut the presumption of discrimination by articulating a “legitimate, nondiscriminatory reason” for the decision at issue. St. Mary’s Honor Center, 509 U.S. at 506-07; Burdine, 450 U.S. at 254. However, although the McDonnell Douglas presumption shifts the burden of production to the defendant, “[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.” St. Mary’s Honor Center, 509 U.S. at 518 (quoting Burdine, 450 U.S. at 253). If the defendant articulates a legitimate, non-discriminatory reason for his employment action, the plaintiff must prove that the proffered reason was a “pretext for discrimination.” Id. at 516. The plaintiff must provide competent evidence that the presumptively valid reasons for the defendant’s actions were “in fact a coverup for a . . . discriminatory decision.” McDonnell Douglas, 411 U.S. at 805. The defendant’s proffered reason “cannot be proved to be a pretext for discrimination unless it is shown both that the reason was false, and that discrimination was the real reason.” St. Mary’s Honor Center, 509 U.S. at 515 (citations omitted; emphasis in original). Case 2:14-cv-04861-JAK-FFM Document 61 Filed 10/07/16 Page 13 of 23 Page ID #:1173 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 III. ARGUMENT A. Plaintiff cannot present a prima facie case of employment discrimination because he did not apply, nor was he rejected, for a job for which the employer was seeking applicants or, if he did apply and was rejected, then he failed to initiate EEO counseling within the required 45-day period. To establish a prima facie case of employment discrimination, Plaintiff must show that he applied, and was qualified, “for a job for which the employer was seeking applicants,” and that he was rejected for the job. McDonnell Douglas, 411 U.S. at 802. The AJ found it undisputed that Plaintiff applied for a respiratory therapist position on January 10, 2010, but that the vacancy announcements for respiratory therapist positions had closed by December 31, 2009. (SUF 7.)3 Plaintiff’s EEO complaint also states that the VA failed to refer him for a respiratory therapist position in January 2010. (SUF 9.) Similarly, the Notice of Acceptance of the EEO Complaint states that Plaintiff’s complaint was that he applied for a respiratory therapist position in January 2010 and allegedly learned on June 10, 2011 that there was in fact a respiratory therapist position open in January 2010. (SUF 11.) To avoid the issue of alleging he applied for a job that did not exist, Plaintiff now claims that he applied for a respiratory therapist position in November 2009.4 This uncorroborated, self-serving claim should be disregarded by the Court. Villiarimo, 281 3 The AJ also found it undisputed that Plaintiff claimed to have learned in June 2011 that there was in fact a respiratory therapist position open in January 2010 when he overheard HR Specialist Gustafson say so on the phone, despite the fact that Gustafson, who is deaf, does not use a phone. (SUF 8.) 4 At his deposition, Plaintiff claimed that he “first applied” for a respiratory therapist position at the VA in January 2009, and then applied again in November 2009. Declaration of Justin A. Okun, Ex. G (Deposition of Fredric Collins at 89:14-90:6). To the extent that Plaintiff is claiming discrimination with regard to the alleged application in January 2009, it would be barred as a separate discrete act. See National Railroad Passenger Corporation v. Morgan, 536 U.S. 101, 114, 122 S. Ct. 2061, 153 L. Ed. 2d 106 (2002). Case 2:14-cv-04861-JAK-FFM Document 61 Filed 10/07/16 Page 14 of 23 Page ID #:1174 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 F.3d at 1061. Plaintiff simply did not apply, nor was he rejected, for a job for which the VA was seeking applicants. Plaintiff’s claims should fail for this reason alone. McDonnell Douglas, 411 U.S. at 802. However, if the Court were to entertain Plaintiff’s new claim that he applied for the position in November 2009, his deposition testimony fatally undermines his suit. At his deposition, Plaintiff testified that he first suspected discrimination when he “found out the person [who allegedly got the job] was younger than [him] and that they were Caucasian.” (SUF 12.) He testified that he discovered that the VA hired a younger Caucasian woman sometime in 2010. (SUF 13.) Plaintiff also testified that he overheard HR Specialist Gustafson say there was an open respiratory therapist position not in June 2011, as he stated in his EEO complaint, but in January 2010 when he now claims to have inquired regarding his application. (SUF 14.) It is undisputed that Plaintiff did not initiate EEO counseling until July 6, 2011. (SUF 3.) However, Plaintiff was required to initiate EEO counseling within 45 days of the matter alleged to be discriminatory. 29 C.F.R. § 1614.105; Boyd v. U.S. Postal Serv., 752 F.2d 410, 414 (9th Cir. 1985). In other words, if events unfolded as Plaintiff now alleges they did, he was required to initiate EEO counseling regarding the alleged failure to hire well before July 6, 2011. Plaintiff’s failure to do so is “fatal” to his employment discrimination claim. Kraus v. Presidio Trust Facilities Div./Residential Mgmt. Branch, 572 F.3d 1039, 1043-44 (9th Cir. 2009); Cherosky, 330 F.3d at 1245. Accordingly, Plaintiff’s claims should be denied for this reason as well. B. Plaintiff cannot bring a claim against Defendant based on the ADA. The ADA explicitly excepts the federal government from the definition of an “employer” that must refrain from disability discrimination. 42 U.S.C. § 12111(5)(B)(i). Consequently, the ADA does not provide a remedy for Plaintiff’s discrimination claim. See Zimmerman v. Or. Dep’t of Justice, 170 F.3d 1169, 1172 (9th Cir. 1999) (noting that the ADA exempted the federal government). Rather, the Rehabilitation Act of 1973 is the exclusive statutory basis for claims of disability discrimination against the federal Case 2:14-cv-04861-JAK-FFM Document 61 Filed 10/07/16 Page 15 of 23 Page ID #:1175 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 government. See Boyd, 752 F.2d at 412. Accordingly, this Court lacks subject-matter jurisdiction over Plaintiff’s claim of disability discrimination against Defendant in violation of the ADA. C. Even if Plaintiff had brought his claim of disability discrimination under the Rehabilitation Act, he has not made out a prima facie case of employment discrimination based on disability because he is not an individual with a disability. The first element in a prima facie case of disability discrimination is a showing by Plaintiff that he is an individual with a disability. McDonnell Douglas, 411 U.S. at 802; Kaplan v. City of North Las Vegas, 323 F.3d 1226, 1229 (9th Cir. 2003); Kennedy v. Applause, Inc., 90 F.3d 1477, 1480 (9th Cir. 1996). An “individual with a disability” is one who has “(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” 42 U.S.C. § 12102(1); Kennedy 90 F.3d at 1480 (“Only a qualified individual with a disability may state a claim for discrimination.”). Here, Plaintiff concedes that he is not an “individual with a disability,” stating that he was “sufficient[ly] rehabilitat[ed]” since well before 2009 and “remains fully functional as far as his normal abilities and activities are concerned.” (SAC ¶¶ 43, 44, 47, 49, 50; SUF 15.) “Factual assertions in pleadings . . . are considered judicial admissions conclusively binding on the party who made them.” American Title Ins. Co. v. Lacelaw Corp., 861 F.2d 224, 226 (9th Cir. 1988). Accordingly, Plaintiff’s admissions in his SAC establish that he was not an individual with a disability at either time he has purported to apply for a respiratory therapist position with the VA, and his disability claims fail for this reason as well. Plaintiff’s deposition testimony affirmed that he was not an individual with a disability by 2009. Plaintiff testified that he had headaches between 1989 and 1991 that prevented him from going to school. (SUF 16.) He testified that he rehabilitated himself Case 2:14-cv-04861-JAK-FFM Document 61 Filed 10/07/16 Page 16 of 23 Page ID #:1176 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and that by 2005 at the latest the headaches did not prevent him from doing anything. (SUF 17.) Accordingly, by his own testimony, Plaintiff was not an individual with a disability as of 2009. Likewise, Plaintiff cannot set forth evidence sufficient to establish a record of an impairment that substantially limits one or more major life activities. At his deposition, Plaintiff’s sole support for his contention that he was an individual with a disability in 2009 was simply that he was receiving a disability annuity until “[a]round the 7th or 10th of [January] 2010.” (SUF 18.) He testified that in November 2009 he told Gustafson that he was receiving a disability annuity and that it was going to be cutoff in January 2010. (SUF 19.) However, “[t]o have a record of an impairment that substantially limits a major life activity means to have ‘a history of, or [have] been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities.’” Coons v. Sec’y of the United States Dep’t of the Treasury, 383 F.3d 879, 886 (9th Cir. 2004) (quoting 29 C.F.R. § 1630.2(k)). “The record must be of an impairment that substantially limits a major life activity.” Id. (quoting Heisler v. Metro. Council, 339 F.3d 622, 630 (8th Cir. 2003)). Further, “[t]he record which indicates Plaintiff has or had a substantially limiting impairment must be one relied upon by the employer in making the employment decision.” Crock v. Sears, Roebuck & Co., 261 F. Supp. 2d 1101, (S.D. Iowa 2003) (citing 29 C.F.R. § 1630.2(k)). “Submission of a medical diagnosis of an impairment is insufficient proof of a record of a disability.” Id. (citing Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555, 567 (1999)). Likewise, doctors’ notes of stress-related physical ailments, documented records of alcoholism, reports of having only one functioning ear, or issuance of a handicapped parking placard do not constitute a record of an impairment as defined in 42 U.S.C. § 12102(1)(B). See Walton v. United States Marshals Serv., 492 F.3d 998, 1011 (9th Cir. 2007); Pinto v. Massapequa Public Schools, 820 F. Supp. 2d 404, 409 (E.D.N.Y. 2011). While Plaintiff has submitted hundreds of pages of records (Docs. 50, 50-1, 50-2), there is nothing indicating that he had an impairment that significantly limited a major Case 2:14-cv-04861-JAK-FFM Document 61 Filed 10/07/16 Page 17 of 23 Page ID #:1177 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 life activity, and that it was relied on by Defendant. Simply telling HR Specialist Gustafson that Plaintiff was receiving a disability annuity until January 2010 does not constitute presenting an employer with a record of an impairment that significantly limits a major life activity. Plaintiff has not presented any evidence that he was regarded in 2009 or 2010 by the VA as having an impairment that significantly limits a major life activity. Again, simply telling Gustafson that Plaintiff was receiving a disability annuity does not mean that Gustafson or the VA regarded Plaintiff as having an impairment that significantly limits a major life activity. Further, this testimony by Plaintiff is uncorroborated and self-serving and, therefore, should be disregarded by the Court. According to Gustafson, Plaintiff did not provide Gustafson with his application until January 10, 2010 and only informed Gustafson of his alleged disability on June 10, 2011. (SUF 20.) The AJ found it undisputed that Plaintiff did not apply for the job until January 10, 2010 and that there was no evidence that Plaintiff was regarded as having an impairment that significantly limits a major life activity, or that Plaintiff had a record of any such impairment. (SUF 10.) D. Plaintiff cannot present any evidence of similarly situated individuals without a disability, of a different race, or younger than Plaintiff who were treated more favorably than him. To establish a prima facie case of employment discrimination, Plaintiff must present evidence of similarly situated individuals outside of his protected classes who were treated more favorably, including the qualifications of these individuals. Scott v. Mabus, 618 Fed. Appx. 897, 899, 900 (9th Cir. 2015). Plaintiff alleges in his SAC “that the person who was hired instead of him was a 21-year-old, Caucasian American, with no previous government employment experience, priority hiring status, or previous military service.” (SAC ¶ 25; SUF 21.) However, Plaintiff’s deposition revealed that he does not know who this person is, his assertions regarding her supposed qualifications are based on inadmissible hearsay, and he has no information regarding any of the Case 2:14-cv-04861-JAK-FFM Document 61 Filed 10/07/16 Page 18 of 23 Page ID #:1178 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 applicants for the position to which he claims to have applied. Plaintiff admitted that he does not know of any applicants who applied for the position he believes he was denied. (SUF 22.) He does not know who the 21-year old female who supposedly got the job is, and allegedly only learned about her and her qualifications from someone whose name he does not remember at a private organization unrelated to the VA. (SUF 23.) Plaintiff has neither made initial disclosures nor propounded discovery in this case. (SUF 24.) Accordingly, Plaintiff has presented no admissible evidence regarding the qualifications of the other applicants for the job for which he allegedly applied. Thus, Defendant is entitled to judgment on Plaintiff’s discrimination claims for this reason as well. E. Even assuming Plaintiff could establish a prima facie case of employment discrimination, there is a legitimate non-discriminatory reason he was not hired – he never applied for an open position As stated above, Plaintiff was not hired for a respiratory therapist position in January 2010 because there was no open position at that time. (SUF 25.) Plaintiff was not hired for a respiratory therapist position in November 2009 because, his new uncorroborated, self-serving statements aside, he did not apply for a position at that time. (SUF 26.) Accordingly, Plaintiff is entitled to judgment in its favor for this additional reason. F. With regard to Plaintiff’s disability discrimination claim, there is a presumption against discrimination because Gustafson himself is disabled. An inference against discrimination arises when the decision maker is a member of Plaintiff’s protected class. Jackson v. Foodland Super Market, Ltd., 958 F. Supp. 2d 1133, 1146 (D. Haw. 2013); Hobdy v. L.A. Unified Sch. Dist., 386 F. App’x 722, 724 (9th Cir. 2010). Plaintiff has testified that Gustafson is solely responsible for his application not being considered. (SUF 27.) Gustafson is himself disabled, as he is deaf. (SUF 28.) See 29 C.F.R. § 1630.2(i)(1) (hearing is a “major life activity”). Accordingly, there is an inference against discrimination by Gustafson based on Case 2:14-cv-04861-JAK-FFM Document 61 Filed 10/07/16 Page 19 of 23 Page ID #:1179 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 disability and Plaintiff has not presented evidence to overcome this presumption. Thus, Plaintiff is entitled to judgment on Plaintiff’s disability claims for this reason as well. G. Plaintiff’s claims of discrimination in hiring are entirely premised on his mistaken belief that he was entitled to a job with the federal government Plaintiff’s allegations of discrimination appear to be based primarily, if not solely, on his belief that he holds some form of preferential status under which he need not compete for a federal job. (Doc. 50 ¶ 2, SUF 29.) he concludes, therefore, that because he did not obtain a respiratory therapist job with the VA, he was discriminated against based on disability, race, and age. (SUF 30.) Plaintiff is essentially challenging an allegedly improper personnel action, rather than purely discriminatory conduct. However, Plaintiff failed to bring a “mixed complaint” at the administrative level. See Washington v. Garrett, 10 F.3d 1421, 1428 (9th Cir. 1993); 29 C.F.R. § 1614.302(b). A “mixed case . . . is one which involves both a personnel action normally appealable to the [Merit Systems Protection Board] and a claim of discrimination.” Washington, 10 F.3d at 1428. Because Plaintiff failed to challenge any personnel action at the administrative level, he is barred from doing so now before this Court. 29 C.F.R. § 1614.302(b); 5 C.F.R. § 353.304; see also Scalese v. Babbitt, 1999 U.S. App. LEXIS 26605, at *3 (9th Cir. Oct. 20, 1999) (Plaintiff required to raise entire mixed case before EEOC) To the extent that Plaintiff is relying on some form of preferential status to buttress his discrimination claims, Plaintiff is incorrect as a matter of law. Plaintiff believes he is entitled to a job with the VA through the Department of Defense (DoD) Priority Placement Program (“PPP”). (SUF 31.) He believes the DoD PPP entitled him to a job when his disability annuity, which he received while employed with the DoD, was terminated, allegedly in January 2010. (SUF 32.) However, the DoD PPP concerns reemployment opportunities within the DoD for DoD employees subject to a reduction Case 2:14-cv-04861-JAK-FFM Document 61 Filed 10/07/16 Page 20 of 23 Page ID #:1180 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 in force (“RIF”). See U.S. Dep’t of Defense, Priority Placement Program Handbook, at pp. 2-1 to 2-2, 3-1 to 3-3 (July 2011).5 Thus, it is inapplicable to Plaintiff’s allegations. A similar program, the reemployment priority list (“RPL”), which is a separate and distinct program from the DoD PPP (see id. at 2-1 to 2-2), provides that an “employee who separated because of a compensable injury and whose full recovery takes longer than 1 year from the date eligibility for compensation began . . . is entitled to priority consideration, agency wide, for restoration to the position he or she left or an equivalent one provided he or she applies for reappointment within 30 days of the cessation of compensation.” 5 C.F.R. § 353.301(b) (emphasis added); see also 5 C.F.R. § 330.203(b) (RPL eligibility based on 5 C.F.R. part 353). Here, based on a letter Plaintiff has filed with the Court (Doc. 59 at 7), Plaintiff appears to have been eligible for placement on the DoD RPL beginning January 7, 2010, and continuing for thirty days thereafter. (SUF 33.) However, as noted above, the RPL only applies to jobs “agency wide.” Thus, because Plaintiff was formerly employed with the Department of the Navy (SUF 32), he would not be entitled, under the RPL, to a job with the Department of Veterans Affairs. 5 U.S.C. § 105 (executive agency means an executive department). Further, there is no evidence Plaintiff applied to be registered on the appropriate RPL as required. 5 C.F.R. § 330.204(c); see also Sturdy v. Dep’t of the Army, 440 F.3d 1328, 1331 (Fed. Cir. 2006) (individuals “not entitled to automatic entry on the RPL”). Finally, even if Plaintiff applied for the respiratory therapist position in November 2009, he was not yet eligible for the DoD RPL at the time because it is undisputed that he was still receiving his annuity. Moreover, as stated above, there was no respiratory therapist position with the VA after January 7, 2010. To the extent that Plaintiff’s allegations could be interpreted as alleging that he was eligible for preferential treatment or status for vacancies outside the DoD, the Interagency Career Transition Assistance Program (“ICTAP”) would apply. The ICTAP 5 Available at http://www.cpms.osd.mil/Content/Documents/PPPHandbook.pdf. Case 2:14-cv-04861-JAK-FFM Document 61 Filed 10/07/16 Page 21 of 23 Page ID #:1181 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 “provides eligible displaced Federal employees” with selection priority across all federal agencies. 5 C.F.R. § 330.701. A former federal employee “who was separated because of a compensable work-related injury” and “whose compensation was terminated” is eligible for the ICTAP, provided he has “received certification from the former employing agency that it is unable to place the employee.” 5 C.F.R. § 330.702(3). Here, Plaintiff has failed to provide any evidence that he received such certification from the DoD that it was unable to place Plaintiff in a position. In fact, there could not have been any such certification in November 2009 because Plaintiff was still receiving compensation, his disability annuity, at that time. (SUF 32, 33.) Additionally, ICTAP only applies to a vacancy at a grade level at or below the former employee’s last permanent position. 5 C.F.R. § 330.705(b). The respiratory therapist positions open in November 2009 were at levels 7, 8, and 9 under the general schedule (SUF 34), whereas Plaintiff’s last position with the Department of the Navy was at level 5 of the wage grade pay system. (SUF 35.) Accordingly, ICTAP would not have applied to Plaintiff’s application under the circumstances. Plaintiff also claims he was entitled to a respiratory therapist position because he is a veteran (SUF 36); however, under the Veterans Employment Opportunity Act of 1998 (“VEOA”), “certain veterans and preference eligibles ‘may not be denied the opportunity to compete for vacant positions for which the agency making the announcement will accept applications from individuals outside its own workforce under merit promotion procedures.’” Abell v. Dep’t of the Navy, 343 F. 3d. 1378, 1383 (Fed. Cir. 2003) (quoting 5 U.S.C. § 3304(f)(1)). However, “the VEOA d[oes] not ensure that [an] application w[ill] be successful.” Id. Accordingly, the claim by Plaintiff that he was entitled to the respiratory therapist position simply as a veteran is incorrect. // // // // Case 2:14-cv-04861-JAK-FFM Document 61 Filed 10/07/16 Page 22 of 23 Page ID #:1182 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IV. CONCLUSION For the foregoing reasons, Defendant respectfully requests that this Court grant summary judgment in its favor and against Plaintiff. Dated: October 7, 2016 Respectfully submitted, EILEEN M. DECKER United States Attorney DOROTHY A. SCHOUTEN Assistant United States Attorney Chief, Civil Division ROBYN-MARIE LYON MONTELEONE Assistant United States Attorney Chief, General Civil Section, Civil Division /s/ Justin A. Okun Assistant United States Attorney Attorneys for Defendant ROBERT A. McDONALD Secretary, Department of Veterans Affairs Case 2:14-cv-04861-JAK-FFM Document 61 Filed 10/07/16 Page 23 of 23 Page ID #:1183 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EILEEN M. DECKER United States Attorney DOROTHY A. SCHOUTEN Assistant United States Attorney Chief, Civil Division ROBYN-MARIE LYON MONTELEONE Assistant United States Attorney Chief, General Civil Section, Civil Division JUSTIN A. OKUN (Cal. Bar No. 230954) Assistant United States Attorney Federal Building, Suite 7516 300 North Los Angeles Street Los Angeles, California 90012 Telephone: (213) 894-7354 Facsimile: (213) 894-7819 E-mail: Justin.Okun@usdoj.gov Attorneys for Defendant ROBERT A. MCDONALD Secretary, Department of Veterans Affairs UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA FREDRIC COLLINS, Plaintiff, v. ROBERT A. MCDONALD, Secretary, Department of Veterans Affairs; et al., Defendants. No. CV 14-04861 JAK (FFMx) STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF DEFENDANT ROBERT A. MCDONALD’S MOTION FOR SUMMARY JUDGMENT Hearing on Motion Date: December 5, 2016 Time: 8:30 a.m. Place: Courtroom 750 Edward R. Roybal Federal Building and United States Courthouse Honorable John A. Kronstadt United States District Judge Case 2:14-cv-04861-JAK-FFM Document 61-1 Filed 10/07/16 Page 1 of 15 Page ID #:1184 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STATEMENT OF UNCONTROVERTED FACTS Plaintiff’s employment discrimination claims are barred because he did not apply, nor was he rejected, for a job for which the employer was seeking applicants or, if he did apply and was rejected, then he failed to initiate EEO counseling within the required 45-day period. 1. At the administrative level, Plaintiff asserted that he applied for a job as a respiratory therapist in January 2010 and was told there were no vacancies at that time by Robert Gustafson, a Department of Veterans Affairs (“VA”) Human Resources Specialist. Declaration of Jose M. Collazo (“Collazo Decl.”), Exs. A (Informal EEO Counseling Records), B, (Formal EEO Complaint), D (Notice of Acceptance of EEO Complaint). Declaration of Evan N. Stein (“Stein Decl.”), Ex. F (Decision of EEO Administrative Judge). 2. At the administrative level, Plaintiff claimed that on June 11, 2011, he went to Gustafson’s office and overheard Gustafson state on the phone that there was in fact a respiratory therapist position open in January 2010. Collazo Decl., Exs. A, D. Stein Decl., Ex. F. 3. Plaintiff initiated contact with an Equal Employment Opportunity (“EEO”) counselor at the VA on July 6, 2011 and presented an EEO complaint to the VA on July 18, 2011. Collazo Decl., Exs. A, B, D, E (Written Affidavit of Robert Gustafson). Stein Decl., Ex. F 4. Plaintiff’s EEO complaint was adjudicated on summary judgment at the administrative level because the Collazo Decl., Ex. C (Respiratory Therapist vacancy announcements). Stein Decl., Ex. F. Case 2:14-cv-04861-JAK-FFM Document 61-1 Filed 10/07/16 Page 2 of 15 Page ID #:1185 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 administrative judge (“AJ”) found that there was in fact no respiratory therapist position available in January 2010. 5. Plaintiff alleges in his complaint that he actually applied for the respiratory therapist position in November 2009, when a vacancy was open. Second Amended Complaint (“SAC”) ¶ 18 Collazo Decl., Ex. C. 6. Plaintiff testified at his deposition that he now overheard Gustafson speak about the open respiratory therapist position in January 2010 and learned sometime in 2010 that a younger, Caucasian woman was hired. Okun Decl., Ex. G, Deposition of Fredric Collins (“Collins Depo”) at 87:1-19. 7. The AJ found it undisputed that Plaintiff applied for a respiratory therapist position on January 10, 2010 but that the vacancy announcements for respiratory therapist positions had closed by December 31, 2009 Stein Decl., Ex. F. 8. The AJ found it undisputed that Plaintiff claimed to have learned in June 2011 that there was in fact a respiratory therapist position open in January 2010 when he overheard Gustafson say so on the phone, despite the fact that Gustafson, who is deaf, does not use a phone. Stein Decl., Ex. F. Case 2:14-cv-04861-JAK-FFM Document 61-1 Filed 10/07/16 Page 3 of 15 Page ID #:1186 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9. Plaintiff’s EEO complaint states that the VA failed to refer him for a respiratory therapist position in January 2010. Collazo Decl., Ex. B. 10. The AJ found it undisputed that Plaintiff did not apply for the job until January 10, 2010 and that there was no evidence that Plaintiff was regarded as having an impairment that significantly limits a major life activity, or had a record of such an impairment. Stein Decl., Ex. F. 11. The Notice of Acceptance of the EEO Complaint states that Plaintiff’s complaint was that he applied for a respiratory therapist position in January 2010, and that he allegedly learned on June 10, 2011 that there was in fact a respiratory therapist position open in January 2010. Collazo Decl., Ex. D. 12. Plaintiff testified that he first suspected discrimination when he “found out the person [who allegedly got the job] was younger than [him] and that they were Caucasian.” Collins Depo at 96:23-97:1. 13. Plaintiff testified that he discovered that the VA hired a younger Caucasian woman sometime in 2010. Collins Depo at 49:20-50:12, 83:18-84:12. Case 2:14-cv-04861-JAK-FFM Document 61-1 Filed 10/07/16 Page 4 of 15 Page ID #:1187 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14. Plaintiff testified that he overheard Gustafson say there was an open respiratory therapist position in January 2010 when he inquired regarding his pending application. Collins Depo at 86:15-87:19. Plaintiff is not an individual with a disability 15. Plaintiff states in his SAC that he is not an “individual with a disability,” was “sufficient[ly] rehabilitat[ed]” before 2009, and “remains fully functional as far as his normal abilities and activities are concerned.” SAC ¶¶ 43, 44, 47, 49, 50. 16. Plaintiff testified that he had headaches between 1989 and 1991 that prevented him from going to school. Collins Depo at 16:18-22. 17. Plaintiff testified that he rehabilitated himself and that by 2005 at the latest the headaches did not prevent him from doing anything. Collins Depo at 16:25-18:1, 21:1-22:1. 18. Plaintiff testified at his deposition that that he was an individual with a disability in 2009 because was receiving a disability annuity until “[a]round the 7th or 10th of [January] 2010.” Collins Depo at 63:13-18. 19. Plaintiff testified that in November 2009 he told Gustafson that he was Collins Depo at 46:22-47:16. Case 2:14-cv-04861-JAK-FFM Document 61-1 Filed 10/07/16 Page 5 of 15 Page ID #:1188 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 receiving a disability annuity and that it was going to be cutoff in January 2010. 20. According to Gustafson, Plaintiff did not provide Gustafson with his application until January 10, 2010 and only informed Gustafson of his alleged disability on June 10, 2011. Collazo Decl., Ex. E. Plaintiff has not presented any evidence of similarly situated individuals outside of his protected class who were treated more favorably than him. 21. Plaintiff alleges in his SAC “that the person who was hired instead of him was a 21 year old, Caucasian American, with no previous government employment experience, priority hiring status, or previous military service.” SAC ¶ 25. 22. Plaintiff does not know of any applicants who applied for the position he believes he was denied. Collins Depo at 50:22-51:2. 23. Plaintiff does not know who the 21- year old female whom he alleges got the job is, and testified he only learned about her and her qualifications from someone whose name he does not remember at a private organization unrelated to the VA. Collins Depo at 51:5-54:12. Case 2:14-cv-04861-JAK-FFM Document 61-1 Filed 10/07/16 Page 6 of 15 Page ID #:1189 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 24. Plaintiff has neither made initial disclosures nor propounded discovery in this case. Okun Decl. ¶¶ 2, 3. There is a legitimate non-discriminatory reason Plaintiff was not hired – he never applied for an open position 25. There were no open respiratory therapist positions at the West Los Angeles VA in January 2010. Collazo Decl., Exs. C, E. Stein Decl., Ex. F. 26. Plaintiff admitted he applied for a respiratory therapist position at the West Los Angeles VA in January 2010. Collazo Decl. Exs. A, B, D, E. Stein Decl., Ex. F. There is a presumption against disability discrimination because Gustafson himself is disabled. 27. Plaintiff testified that Gustafson is solely responsible for his application not being considered. Collins Depo at 45:11-22. 28. Gustafson is deaf. Collazo Decl. Ex. E. Stein Decl. Ex. F. Plaintiff did not hold a preferential status guaranteeing him a job with the federal government. 29. Plaintiff believes he holds preferential status such that he need not compete for a federal job. SAC ¶ 2 Collins Depo at 42:12-18. Case 2:14-cv-04861-JAK-FFM Document 61-1 Filed 10/07/16 Page 7 of 15 Page ID #:1190 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30. Plaintiff concludes that he was discriminated against based on disability, race, and age because he did not obtain a respiratory therapist job with the VA, to which he believes he was entitled. Collins Depo at 64:5-66:22. 31. Plaintiff believes he is entitled to a job with the VA through the Department of Defense (DoD) Priority Placement Program (“PPP”). Collins Depo at 64:5-13. 32. Plaintiff believes the DoD PPP entitled him to a job when his disability annuity, which he received while employed with the DoD, was terminated, allegedly in January 2010. Collins Depo at 64:4-16. SAC ¶ 2.b.; Doc. 50-1 (Exhibits to SAC) (showing Plaintiff worked for the Department of the Navy at the Long Beach Naval Shipyard). 33. Plaintiff appears to have been eligible for placement on the DoD Reemployment Priority List beginning January 7, 2010, and continuing for thirty days thereafter. SAC, Ex. 2; Doc. 59 at 7. 34. The vacant respiratory therapist positions were at the grade level of 7, 8, and 9. Collazo Decl., Ex. C. 35. Plaintiff was at the grade level of 5 when he was last in federal service. Doc. 50-1 at 1. 36. Plaintiff believes he was entitled to the respiratory therapist position because he is a veteran. SAC ¶ 2. Collins Decl. at 66:3-9. Case 2:14-cv-04861-JAK-FFM Document 61-1 Filed 10/07/16 Page 8 of 15 Page ID #:1191 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CONCLUSIONS OF LAW 1. Plaintiff has not presented a prima facie case of employment discrimination because either (1) he did not apply, nor was he rejected, for a job for which the employer was seeking applicants or, (2) if he did apply and was rejected, then he failed to initiate EEO counseling within the required 45-day period. To establish a prima facie case of employment discrimination, Plaintiff must show that he applied, and was qualified, “for a job for which the employer was seeking applicants,” and that he was rejected for the job. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 36 L. Ed. 668 (1973). As there was no respiratory therapist position open when Plaintiff applied for a job in January 2010, as he alleged at the administrative level, Plaintiff has not made out a prima facie case of employment discrimination. His new allegations that he applied for a respiratory therapist position in November 2009 are uncorroborated and self-serving and do not create a genuine dispute of fact. Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061; Harper v. Wallingford, 877 F.2d 728, 731 (9th Cir. 1989); Angel v. Seattle-First Nat. Bank, 653 F.2d 1293, 1299 (9th Cir. 1981). Assuming Plaintiff applied for the respiratory therapist position in November 2009, he failed to initiate EEO counseling within the required 45 days after he allegedly discovered that a 21-year old Caucasian woman was hired for the position. 29 C.F.R. § 1614.105; Boyd v. U.S. Postal Serv., 752 F. 2d 410, 414 (9th Cir. 1985). Plaintiff’s failure to initiate counseling within the required 45-day period is “fatal” to his employment discrimination claims. Kraus v. Presidio Trust Facilities Div./Residential Mgmt. Branch, 572 F.3d 1039, 1043-44 (9th Cir. 2009); Cherosky v. Henderson, 330 F.3d 1243, 1245 (9th Cir. 2003). 2. Plaintiff cannot bring a claim against Defendant based on the American with Disabilities Act (“ADA”). The ADA explicitly excepts the federal government from the definition of an “employer” that must refrain from disability discrimination. 42 U.S.C. § 12111(5)(B)(i). Case 2:14-cv-04861-JAK-FFM Document 61-1 Filed 10/07/16 Page 9 of 15 Page ID #:1192 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Consequently, the ADA does not provide a remedy for Plaintiff’s discrimination claim. See Zimmerman v. Or. Dep’t of Justice, 170 F.3d 1169, 1172 (9th Cir. 1999) (noting that the ADA exempted the federal government). Rather, the Rehabilitation Act of 1973 is the exclusive statutory basis for claims of disability discrimination against the federal government. See Boyd, 752 F.2d at 412. Accordingly, this Court lacks subject-matter jurisdiction over Plaintiff’s claim of disability discrimination against Defendant in violation of the ADA. 3. Even if Plaintiff had brought his claim of disability discrimination under the Rehabilitation Act, he has not made out a prima facie case of employment discrimination based on disability because he is not an individual with a disability. The first element in a prima facie case of disability discrimination is a showing by Plaintiff that he is an individual with a disability. McDonnell Douglas, 411 U.S. at 802; Kaplan v. City of North Las Vegas, 323 F.3d 1226, 1229 (9th Cir. 2003); Kennedy v. Applause, Inc., 90 F.3d 1477, 1480 (9th Cir. 1996). An “individual with a disability” is one who has “(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” 42 U.S.C. § 12102(1); Kennedy 90 F.3d at 1480 (“Only a qualified individual with a disability may state a claim for discrimination.”). Plaintiff did not have a physical or mental impairment that substantially limited a major life activity in November 2009 or January 2010 as Plaintiff alleges in his SAC that he was “sufficient[ly] rehabilitat[ed]” before 2009 and “remains fully functional as far as his normal abilities and activities are concerned.” American Title Ins. Co. v. Lacelaw Corp., 861 F.2d 224, 226 (9th Cir. 1988) (“Factual assertions in pleadings . . . are considered judicial admissions conclusively binding on the party who made them.”) Plaintiff also testified that the headaches he had between 1989 and 1991 that prevented him from going to school did not prevent him from doing anything by 2005. Plaintiff does not have a record of an impairment that substantially limits one or Case 2:14-cv-04861-JAK-FFM Document 61-1 Filed 10/07/16 Page 10 of 15 Page ID #:1193 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 more major life activities. “To have a record of an impairment that substantially limits a major life activity means to have ‘a history of, or [have] been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities.’” Coons v. Sec’y of the United States Dep’t of the Treasury, 383 F.3d 879, 886 (9th Cir. 2004) (quoting 29 C.F.R. § 1630.2(k)). “The record must be of an impairment that substantially limits a major life activity.” Id. (quoting Heisler v. Metro. Council, 339 F.3d 622, 630 (8th Cir. 2003)). Further, “[t]he record which indicates Plaintiff has or had a substantially limiting impairment must be one relied upon by the employer in making the employment decision.” Crock v. Sears, Roebuck & Co., 261 F. Supp. 2d 1101, (S.D. Iowa 2003) (citing 29 C.F.R. § 1630.2(k)). “Submission of a medical diagnosis of an impairment is insufficient proof of a record of a disability.” Id. (citing Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555, 567 (1999)). Likewise, doctors’ notes of stress-related physical ailments, documented records of alcoholism, reports of having only one functioning ear, or issuance of a handicapped parking placard do not constitute a record of an impairment as defined in 42 U.S.C. § 12102(1)(B). See Walton v. United States Marshals Serv., 492 F.3d 998, 1011 (9th Cir. 2007); Pinto v. Massapequa Public Schools, 820 F. Supp. 2d 404, 409 (E.D.N.Y. 2011). The fact that was receiving a disability annuity until January 7, 2010 does not demonstrate that he has record of an impairment that substantially limits one or more major life activities. There is no evidence that Plaintiff was regarded by anyone at the VA as having an impairment that significantly limits a major life activity. 4. Plaintiff has not presented any evidence of similarly situated individuals without a disability, of a different race, or younger than Plaintiff who were treated more favorably than him. To establish a prima facie case of employment discrimination, Plaintiff must present evidence of similarly situated individuals without a disability, of a different race, or younger than him who were treated more favorably, including the qualifications of these individuals. Scott v. Mabus, 618 Fed. Appx. 897, 899, 900 (9th Cir. 2015). Case 2:14-cv-04861-JAK-FFM Document 61-1 Filed 10/07/16 Page 11 of 15 Page ID #:1194 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff alleges in his SAC “that the person who was hired instead of him was a 21-year- old, Caucasian American, with no previous government employment experience, priority hiring status, or previous military service.” However, this allegation is not supported by admissible evidence. Fed. R. Evid. 801, 802. Plaintiff has presented no admissible evidence with regard to similarly situated individuals. 5. Defendant has presented a legitimate non-discriminatory reason he was not hired. Plaintiff’s allegation that he applied for a respiratory therapist position in November 2009 is uncorroborated and self-serving and contrary to his previous position at the administrative level. The new allegation does not create a genuine dispute of fact. Villiarimo, 281 F.3d at 1061; Harper, 877 F.2d at 731; Angel, 653 F.2d at 1299. Plaintiff was not hired for a respiratory therapist position in January 2010 because there was no open position at that time when he applied. Defendant has, therefore, articulated a “legitimate, nondiscriminatory reason” for not hiring Plaintiff. St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 506-07, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993). 5. With regard to Plaintiff’s disability discrimination claim, Plaintiff has not overcome the inference against discrimination as Gustafson himself is disabled. An inference against discrimination arises when the decision maker is a member of Plaintiff’s protected class. Jackson v. Foodland Super Market, Ltd., 958 F. Supp. 2d 1133, 1146 (D. Haw. 2013); Hobdy v. L.A. Unified Sch. Dist., 386 F. App’x 722, 724 (9th Cir. 2010). Gustafson, the decision maker is himself disabled, as he is deaf. See 29 C.F.R. § 1630.2(i)(1) (hearing is a “major life activity”). Accordingly, there is an inference against discrimination by Gustafson based on disability and Plaintiff has not presented evidence to overcome this presumption. // // // // Case 2:14-cv-04861-JAK-FFM Document 61-1 Filed 10/07/16 Page 12 of 15 Page ID #:1195 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6. Plaintiff failed to bring a personnel action at the administrative level and, even if he had, he was not entitled to preferential hiring based on the Department of Defense (“DoD”) Priority Placement Program (“PPP”) or Reemployment Priority List (“RPL”). To the extent that Plaintiff is challenging a personnel action in denying him some form of preferential status, Plaintiff failed to bring a “mixed complaint” at the administrative level. See Washington v. Garrett, 10 F.3d 1421, 1428 (9th Cir. 1993); 29 C.F.R. § 1614.302(b). As such, he is barred from challenging a personnel action in this Court. 29 C.F.R. § 1614.302(b); 5 C.F.R. § 353.304; see also Scalese v. Babbitt, 1999 U.S. App. LEXIS 26605, at *3 (9th Cir. Oct. 20, 1999) (Plaintiff required to raise entire mixed case before EEOC). To the extent that Plaintiff is relying on some form of preferential status to buttress his discrimination claims, Plaintiff is incorrect as a matter of law. The DoD PPP concerns reemployment opportunities within the DoD for DoD employees subject to a reduction in force (“RIF”). See U.S. Dep’t of Defense, Priority Placement Program Handbook, at pp. 2-1 to 2-2, 3-1 to 3-3 (July 2011). Thus, it is inapplicable to Plaintiff’s allegations. The DoD RPL is a separate and distinct program from the DoD PPP. See id. at 2- 1 to 2-2. The DoD RPL provides that an “employee who separated because of a compensable injury and whose full recovery takes longer than 1 year from the date eligibility for compensation began . . . is entitled to priority consideration, agency wide, for restoration to the position he or she left or an equivalent one provided he or she applies for reappointment within 30 days of the cessation of compensation.” 5 C.F.R. § 353.301(b); see also 5 C.F.R. § 330.203(b) (RPL eligibility based on 5 C.F.R. part 353). Plaintiff appears to have been eligible for placement on the DoD RPL beginning January 7, 2010, and continuing for thirty days thereafter. (SUF 32.) However, the RPL only applies to jobs “agency wide,” i.e., jobs within the DoD, not the VA. See 5 U.S.C. § 105 (executive agency means an executive department). Further, there is no evidence Case 2:14-cv-04861-JAK-FFM Document 61-1 Filed 10/07/16 Page 13 of 15 Page ID #:1196 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff applied to be registered on the appropriate RPL as required. 5 C.F.R. § 330.204(c); see also Sturdy v. Dep’t of the Army, 440 F.3d 1328, 1331 (Fed. Cir. 2006) (“not entitled to automatic entry on the RPL”). Additionally, if Plaintiff applied for the respiratory therapist position in November 2009, then he was not yet eligible for the DoD RPL because he was still receiving his annuity. The Interagency Career Transition Assistance Program (ICTAP) “provides eligible displaced Federal employees” with selection priority across all federal agencies. 5 C.F.R. § 330.701. A former federal employee “who was separated because of a compensable work-related injury” and “whose compensation was terminated” is eligible for the ICTAP, provided he has “received certification from the former employing agency that it is unable to place the employee.” 5 C.F.R. § 330.702(3). There is no evidence that Plaintiff received such certification from the DoD that it was unable to place Plaintiff. There could not have been such certification in November 2009 because Plaintiff was still receiving compensation, his disability annuity, at that time. ICTAP also only applies to a vacancy at a grade level at or below the former employee’s last permanent position. 5 C.F.R. § 330.705(b). The respiratory therapist positions open in November 2009 were at levels 7, 8, and 9 under the general schedule whereas Plaintiff’s last position with the Department of the Navy was at level 5 of the wage grade pay system. Accordingly, ICTAP would not have applied to Plaintiff’s application. Under the Veterans Employment Opportunity Act of 1998 (“VEOA”), “certain veterans and preference eligibles ‘may not be denied the opportunity to compete for vacant positions for which the agency making the announcement will accept applications from individuals outside its own workforce under merit promotion procedures.’” Abell v. Dep’t of the Navy, 343 F. 3d. 1378, 1383 (Fed. Cir. 2003) (quoting 5 U.S.C. § 3304(f)(1)). However, “the VEOA d[oes] not ensure that [an] application w[ill] be successful.” Id. Accordingly, the claim by Plaintiff that he was entitled to the respiratory therapist position is incorrect. Case 2:14-cv-04861-JAK-FFM Document 61-1 Filed 10/07/16 Page 14 of 15 Page ID #:1197 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Because Plaintiff was not entitled to a job, his claims of discrimination, which are premised on this assumption, fail. Dated: October 7, 2016 Respectfully submitted, EILEEN M. DECKER United States Attorney DOROTHY A. SCHOUTEN Assistant United States Attorney Chief, Civil Division ROBYN-MARIE LYON MONTELEONE Assistant United States Attorney Chief, General Civil Section, Civil Division /s/ Justin A. Okun Assistant United States Attorney Attorneys for Defendant ROBERT A. McDONALD Secretary, Department of Veterans Affairs Case 2:14-cv-04861-JAK-FFM Document 61-1 Filed 10/07/16 Page 15 of 15 Page ID #:1198 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EILEEN M. DECKER United States Attorney DOROTHY A. SCHOUTEN Assistant United States Attorney Chief, Civil Division ROBYN-MARIE LYON MONTELEONE Assistant United States Attorney Chief, General Civil Section, Civil Division JUSTIN A. OKUN (Cal. Bar No. 230954) Assistant United States Attorney Federal Building, Suite 7516 300 North Los Angeles Street Los Angeles, California 90012 Telephone: (213) 894-7354 Facsimile: (213) 894-7819 E-mail: Justin.Okun@usdoj.gov Attorneys for Defendant ROBERT A. MCDONALD Secretary, Department of Veterans Affairs UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA FREDRIC COLLINS, Plaintiff, v. ROBERT A. MCDONALD, Secretary, U.S. Department of Veterans Affairs, et al., Defendants. No. CV 14-04861 JAK (FFMx) DECLARATION OF JOSE M. COLLAZO IN SUPPORT OF DEFENDANT ROBERT A. MCDONALD’S MOTION FOR SUMMARY JUDGMENT Honorable John A. Kronstadt United States District Judge Case 2:14-cv-04861-JAK-FFM Document 61-2 Filed 10/07/16 Page 1 of 28 Page ID #:1199 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF JOSE M. COLLAZO I, Jose M. Collazo, hereby declare: 1. I am the Assistant District Manager of the Pacific District of the Office of Resolution Management (“ORM”) of the United States Department of Veterans Affairs. I have held this position since October 20, 2014. Among my official duties as Assistant District Manager, I supervise Equal Employment Opportunity (“EEO”) counselors in ORM field offices within the Pacific District, including the VA Greater Los Angeles Healthcare System and the West Los Angeles VA Medical Center, and I am responsible for day-to-day oversight and management of EEO counseling. Through the performance of my official duties, I am readily familiar with, and have access to, the records that are regularly prepared and maintained for processing administrative EEO complaints at the West Los Angeles VA Medical Center. I have personal knowledge of the following facts, and if called upon, I would truthfully testify as set forth below. 2. Attached hereto as Exhibit A is a true and correct copy of the informal EEO counseling records for Plaintiff Fredric Collins in EEO case number 200P-0691- 2011104016. 3. Attached hereto as Exhibit B is a true and correct copy of the formal administrative EEO complaint submitted by Plaintiff Fredric Collins in EEO case number 200P-0691-2011104016. 4. Attached hereto as Exhibit C is a true and correct copy of all Respiratory Therapist vacancy announcements at the West Los Angeles VA Medical Center contained in the investigative file for EEO case number 200P-0691-2011104016. 5. Attached hereto as Exhibit D is a true and correct copy of the Notice of Acceptance of Plaintiff Fredric Collins’ EEO case number 200P-0691-2011104016. 6. Attached hereto as Exhibit E is a true and correct copy of the Written Affidavit of Robert Gustafson contained in the investigative file for EEO case number 200P-0691-2011104016. Case 2:14-cv-04861-JAK-FFM Document 61-2 Filed 10/07/16 Page 2 of 28 Page ID #:1200 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7. The foregoing records were prepared in the ordinary course of the regularly conducted activities of ORM at or near the time of the recorded acts, conditions, or events, and it is the regular practice of ORM to compile and maintain such records. I declare under penalty of perjury pursuant to 28 U.S.C. § 1746 that the foregoing is true and correct. Executed this 3rd day of October, 2016, at Vancouver, Washington. JOSE M. COLLAZO Assistant District Manager, Pacific District Office of Resolution Management U.S. Department of Veterans Affairs Case 2:14-cv-04861-JAK-FFM Document 61-2 Filed 10/07/16 Page 3 of 28 Page ID #:1201 EXHIBIT A EXHIBIT A Case 2:14-cv-04861-JAK-FFM Document 61-2 Filed 10/07/16 Page 4 of 28 Page ID #:1202 July 18, 2011 DEPARTMENT OF VETERANS AFFAIRS OFFICE OF RESOLUTION MANAGEMENT 11301 Wilshire Boulevard Building 220, 2nd Floor Los Angeles, CA 90073 In reply refer to:(08H) Frederick Collins Dear Frederick Collins: I am closing the informal counseling on the matter you presented to this office on July 6, 2011, case number: 200P-0691-2011104016. Your complaint is as follows: Upon receipt ~f this letter ple(ise notify me no l<;~ter than. 5 business days whether the above infOrmation is incorrect. '<<;: · ·.· . . · ,-,_ c.).' I am enclosing two copies of theNolice of f1.ig,h! foJilt~ Discrimination Complaint (inyluding VA Form 4939). Pleas~ l)igri !1oth copies as indicated by the "sign here.tabs,:'retain one copy for your recqrds, and return the ORM copy to the followini:f§ do notmatl the VA Form4939 to me; your formal complaint must be mailed to one ofthe addres$§S listed on thE' first page of the attached Notice of Right toFile a Discrimination Complaint ' ·:: · . Revised 1012006 CONFOFNT!t!..L OOCUI,li"tJ·rl ··· cr~:N£"RATED !NTHE ORM COMF}L;'\lNT-f,UTOMATED THACK1NC; SYSTEM \CATS} Collazo Decl. Ex. A3 Case 2:14-cv-04861-JAK-FFM Document 61-2 Filed 10/07/16 Page 5 of 28 Page ID #:1203 Page2 Notice of Right to File a Discrimination Complaint Name of Aggrieved: Frederick Collins Case Number: ZOOP-0691-20111 04016 If you have any questions or need assistance, please call me at (562) 826-8144 on our toll free number at 1-888-737-3361. Sincerely, Vickye E. Gammage EEO Counselor Enclosure: Notice of Right to File a Discrimination Complaint VA Form 4939 ., .. -... ,, Revised 1012006 (;OtiFIDENTl/\l. COC\!MEt~T ClENFRAlT.T) lN THE ORM O:JMPL/\iNT ;\UTOMATFD THACK!NG -SYSTFfv~ \CA.TEJ) Collazo Decl. Ex. A4 Case 2:14-cv-04861-JAK-FFM Document 61-2 Filed 10/07/16 Page 6 of 28 Page ID #:1204 01fice ol Resolution Management NOTICE OF RIGHT TO FILE A DISCRIMINATION COMPLAINT Aggrieved Name: Fred erick Collins Case No.: 200P-0691-20111 04016 1. If you are not satisfied with the results of the EEO counseling and believe that you have been subjected to discrimination because of race, color, religion, sex (sexual harassment or gender), national origin, age, disability or reprisal for prior EEO activities, you have the right to file a formal complaint of discrimination. If you decide to file a formal complaint, you must do so WITHIN FIFTEEN CALENDAR DAYS OF RECEIPT OF THIS NOTICE. 2. Attached is VA Form 4939, Complaint of Employment Discrimination. If you choose to file a formal complaint at this time, use this form, and carefully read the instructions on the reverse side before completing it The counselor is available to assist you in filling out this form and to answer any questions you may have about it. If you require assistance, please contact your counselor immediately. Please note that the 15-calendar day time frame will not be extended due to your need to seek my assistance in completing this form. 3. You may file a complaint in person or by mail with the Regional EEO Officer. You may also file it with the Secretary of Veterans Affairs or with the Deputy Assistant Secretary for Office of Resolution Management (DAS/ORM). Their addresses are listed below: Regional EEO Officer Department of Veterans Affairs Office of Resolution Management OSH 11301 Wilshire Boulevard Building 2.20, 2nd Floor Los Angeles, CA 90073 Secretary of Veterans Affairs Department of Veterans Affairs 810 Vermont Avenue, NW Washington, D.C. 20420 Deputy Assistant Secretary (08) Office of Resolution Management (ORM) 810 Vermont Avenue, NW Washington, D.C. 20420 •;• If you file a ?P!lJplajntwith the Secretary or the DAS/ORM, you must also provide a copy t6 this ORM F·ield Office': •. F~ilure to pro>.iide a copy to this ORM Field Office will only ee ., 7 18. DATE VA FORM AUG 2006 " A 1".. n U 3 9 SUPERSEDES VA FORM 4939, NOV 2007, WHICH SHOULD NOT BE USED, Adobe UveCycla Designer 7,1 Collazo Decl. Ex. B10 Case 2:14-cv-04861-JAK-FFM Document 61-2 Filed 10/07/16 Page 13 of 28 Page ID #:1211 EXHIBIT C EXHIBIT C Case 2:14-cv-04861-JAK-FFM Document 61-2 Filed 10/07/16 Page 14 of 28 Page ID #:1212 DEPARTMENT OF VETERANS AFFAIRS Greater Los Angeles Healthcare System 11301 Wilshire Boulevard Los Angeles, CA 90073 TITLE 38 HYBRID VACANCY ANNOUNCEMENT Certified Respiratory Therapist (CRT) GS-640-7 MEDICAL SERVICE Announcement #: 09-1051(RG) Duty Location: West Los Angeles, CA Salary: $ 53,563469,634 Per Annum Vacancies: Multiple Opening Date: 10109/2009 Closing Dates: 12131/2009 Please refer applicants on /after the cut off dates. October 26, 2009 Future cut off dates will be set for every 14 calendar days. Area of Consideration: This is an Excepted Appointment (under Title 38 USC) and is open to the public, DUTIES AND RESPONSIBILITIES: QUALIFICATIONS: MAJOR DUTIES: REQUIREMENTS: Your application must show your possession of the The incumbent is responsible for mechanical ventilatory following: management, CPAPJBi-Level ventilation, aerosolized (1). Citizenship. Citizen of the United States medication administration, bronchial hygiene, airway (2). Basic Requirements: Has been issued a certifi- management, oxygen therapy, aerosol therapy, diagnos- cate as a CRT by the NBRC (National Board for tic testing such as spirometry, EKGs, pulse oximetry, Respiratory Care) or a certificate from another body bronchoscopy assistance, arterial blood gas sampling which the NBRC recognizes as its credentialing and analysis and cardiopulmonary resuscitation. The equivalent. This included certification based on ei- incumbent is also responsible for assisting the Supervi- thee sor, Cardiopulmonary Services to assure Quality Im- (1) Having successfully completed a respiratory provement in Cardiopulmonary Services, As part of the therapy technician (1 year) or respiratory therapy Health care to patients. In addition, the incumbent will program accredited by the Joint Committee for Respi- assist In planning and implementing effective educational ratory Therapy Education and having passed the en- programs for in-services, orientation, continuing educe- try level examination administered by the NBRC tion, and other personnel training in cardiopulmonary since 1983, or care. The incumbent participates in the training of respi- (2) Having a certificate as a respiratory or inhalation ratory therapy staff, medical students, house staff, nurs- therapy technician based on passing an entrance ing staff, other medical enter personnel, and patients. examination administered by the (1) National Board The respiratory therapist assists in updating manuals and for Respiratory Therapy from 1975 through 1982; (2) procedures, recommending policies and delivery and Technician Certification Board of the American Asso- stocking of all parts and supplies required by the section, ciation for Respiratory Therapy from 1972 through The incumbent also recommends changes in the respire- 1974; or (3) Technician Certification Board of the tory care services to improve patient care. American Association for Inhalation Therapy from 1969 through 1971. GS-07 Level: In addition to the basic requirements listed above candidates must have successfully com- pleted at least one of the following; (1) A 4-year or more accredited program of study leading to a bachelor's or higher degree in respiratory therapy, or (2) One year of experience related to respiratory therapy at the GS-6 level or equivalent. This experi- ence must have provided the candidate with knowl- The Department of Veterans Affairs is an_ Equal Opportunity Employer KeIGLAIIS provides reasonable accommodation for any part of the application and hiring process. Please notiA ■ our Human Re- sources office accordingly. Decisions on granting reasonable accommodation will be on a case-by-ease basis. Collazo Decl. Ex. C11 Case 2:14-cv-04861-JAK-FFM Document 61-2 Filed 10/07/16 Page 15 of 28 Page ID #:1213 edge of the full range of equipment, procedures, and techniques used in respiratory therapy including the operating characteristics, capabilities, and limitations of the complex equipment (e.g. volume ventilators) used in intensive respiratory care and emergency situations. The experience must have also provided the candidate with knowledge of anatomy and physi- ology of the respiratory system including in-depth understanding of how the structure and function of the lungs and bronchi relate to gas exchange and ventilation; and knowledge of caring for a wide variety of acute and chronic respiratory disorders. (3) Physical Requirements: A pre-employment physical examination is required. (4) English Language Proficiency: Must be profi- cient in spoken and written English. KNOWLEDGE, SKILLS AND ABILITIES (KSAS) Listed below are the KSAs considered essential for successful performance in this position. Provide, on a separate sheet of paper, a DETAILED description of your experience as related to the items below: 1. Knoweldge of the duties of the position including that necessary to provide care appropriate of the age of the patients served, 2. Knowledge of Respiratory Therapy 3. Ability to commuciate orally and in writing. Basis of Rating: Your rating will be based on the quality of your experience as shown in your application and/or Per formance-Based interview. Note: All Federal employees must be meet regulatory requirements by the closing date of this announcement. This is a Drug-Testing Designated position; Direct Deposit is required. HOW TO APPLY-Please submit the following: (1) Application for Associated Health Occupations VA Form 10-2850C, available at http:/www.vamovivaforms and a resume or application that documents your qualifications as described above. (2) Declaration for Federal Employment OF-306, available at http:www.opm.govlforms (3) if applicable, SF-15, Application for 10-point Veteran Preference, and required documentation if claiming 10-point preference, Your VA disability confirmation letter must be dated since 1991, Official preference statements do not mention the type of disability and can be obtained by calling 1-800-827-1000. (4) if applicable, DD-214 (Must have Member Copy #4 for July 1979 and later editions); must show character of ser- vice or type of discharge. (5) SF-50b, Notification of Personnel Action, that shows your current/former position, title, series, grade, step, salary, tenure group, type of appointment (If current or former Federal employee). (6) Copy of certification, registration, etc. if applicable. You must submit copies of transcripts if qualifying based on education. Applications received by the Initial cut-off date will receive first consideration. Application packages are available in our Human Resources-Customer Service area located at the address below or you may call us at (310) 268-4154. Our office hours are Monday-Friday, 8:00am to 4:00pm PST, except Federal holidays. Applications must be received by the closing date (or subsequent cut-off dates) of the announcement to receive considera- tion. Please mail or bring your application package to: VA Greater Los Angeles Healthcare Center Human Resources (Customer Service) 11301 Wilshire Blvd. Bldg. 218, Rm. 35 Los Angeles, CA 90073 The Department of Veterans Affairs is an Equal Opportunity Employer VAGLAHS provides reasonable accommodation for any part of the application and hiring process. Please notify ow' Human Re- sources office accordingly. Decisions on granting reasonable accommodation will be on a case-by-ease basis. Collazo Decl. Ex. C12 Case 2:14-cv-04861-JAK-FFM Document 61-2 Filed 10/07/16 Page 16 of 28 Page ID #:1214 DEPARTMENT OF VETERANS AFFAIRS Greater Los Angeles Healthcare System 11301 Wilshire Boulevard Los Angeles, CA 90073 TITLE 38 HYBRID VACANCY ANNOUNCEMENT Registered Respiratory Therapist (RRT) GS-601-8/9 MEDICAL SERVICE Announcement #: 09-1050 (RG) Duty Location: West Los Angeles, CA Salary: $57,837 to $86,383 Per Annum Vacancies: Multiple Opening Date: 10/09/2009 Closing Dates: 12/31/2009 Please refer applicants on /after the cut off dates. October 26, 2009 Future cut off dates will be set for every 14 calendar days. (1). Citizenship. Citizen of the United States (2). Basic Requirements-Registered Respiratory Thera- pist (RRT); Has a certificate as an RRT from the NBRC (National Board for Respiratory Care) and a registry num- ber, or a certificate from another body which the NBRC rec- ognizes as its credentialing equivalent. This includes regis- tration based on either: (1) Having fulfilled the requirements and passed the regis- try examination administered by the NBRC since 1983, or (2) Having fulfilled the requirements and passed the regis- try examination for a registered inhalation or respiratory therapist administered by the (1) National Board for Respi- ratory Therapy from July 1974 through 1982 or (2) Ameri- can Registry of Inhalation Therapists from 1961 through June 1974. GS -08 Level: In addition to the basic requirements listed above, candidates must have all of the following: (1). At least 1 year of successful experience related to respiratory therapy at the GS-7 level or equivalent. Qualify- ing experience at this level is work which includes duties such as: administering assisted and controlled ventilation to patients with tracheotomies and other complex medical problems requiring frequent adjustments in ventilator pa- rameters; administering and monitoring advanced ventilator techniques such as positive end expiratory pressure and continuous positive airway pressure; developing plans for weaning patients from ventilators; assessing the respiratory status of patients using data acquired through physical observation and clinical analysis of blood gas data, chest x- rays, and electrocardiogram to determine the effectiveness of therapy being administered and to make recommenda- tions to physicians regarding changes In treatment; per- forming the most difficult respiratory therapy procedures to maintain ventilation, including endotracheal intubation, tra- cheal lavage, and tracheotomy care; and providing in- service training to others in various specialized areas of respiratory care. (2). Demonstrated ability to perform complex respi- The Department of Veterans Affairs is an Equal Opportunity Employer VAGLAHS provides reasonable accommodation for any part of the application and hiring process. Please note our Human Re- sources office accordingly. Decisions on granting reasonable accommodation will be on a case-by-case basis_ Area of Consideration: This is an Excepted Appointment (under Title 38 USC) and is open to the public. DUTIES AND RESPONSIBILITIES: QUALIFICATIONS: MAJOR DUTIES: Initiates, monitors, and makes appropriate adjustments on ven- tilator assistance controlled services including, but not limited to, ventilators, CPAP, and BIPAP units par physician orders. On a routine basis, performs postural drainage procedures, arterial punctures, blood gas analysis; and provides emergency care to critically ill patients, including. Cardiopulmonary Resus- citation (CPR) and treatment of corpulmonale and status asth- maticus, and acute pulmonary edema. Performs andior assists in endotracheal Intubations per physi- cian request, Responds to code 99's (CPR), establishes and maintains a patient airway, and provides artificial ventilation when appropriate. Maintains current CPR Certification. Utilizes the appropriate supplemental modes of therapy per physician orders. Administers oxygen therapy to patients, as prescribed, utilizing the appropriate oxygen delivery device to include, but limited to, nasal cannulae, masks, and face tents, vapotherm. Administers nitric oxide therapy to patients as prescribed utiliz- ing the appropriate ventilatory delivery device to include nasal cannulao, mask and in conjunction with mechanical ventilator, Administers medications specific to respiratory care via nebu- lizers, and hand-held and intermittent positive pressure (IPPB) breathing machine. Monitors patients' tolerance to medication and treatment, and reports atypical responses to supervisor and ordering physician. Instructs patients, their families, nurses, physicians, and other staff in the proper administration and technique of various and appropriate respiratory care equipment, procedure/poliey, or medication. Participates in multidisciplinary cardiopulmonary Ire team planning, and evaluation and implementation of the- Jpeutic regimens appropriate to individual patients' conditions. Practices proper documentation when administering patient care and when performing departmental record maintenance. Collazo Decl. Ex. C13 Case 2:14-cv-04861-JAK-FFM Document 61-2 Filed 10/07/16 Page 17 of 28 Page ID #:1215 Maintains knowledge of the most current respiratory care ad- vancements related to optimum patient care by reading and researching textbooks, journals, and current literature for respi- ratory care application. ratory procedures with minimal supervision. is able to participate with physicians and nurses and other staff in planning respiratory treatment, with great reliance on the individual's knowledge of the equipment. (3). Demonstrated ability to provide emergency or critical respiratory care; service as a shift leader or supervisor or sole responsible respiratory therapist on a shift; and to plan and conduct training sessions with respiratory therapy stu- dents, hospital staff, patients, and family members. GS-9, in addition to meeting the requirements for 08 -8, candidates must have had at least one additional year of successful and progressively responsible experience re- lated to respiratory therapy at the OS-8 level or equivalent. This experience must have included demonstrated accom- plishments in upgrading services to patients. The candi- date must have demonstrated expert knowledge of respira- tory therapy methods, equipment, and procedures and the ability to assume responsibility to plan, organize, direct, coordinate, and evaluate programs involving respiratory care. (3) Physical Requirements: A pre-employment physical examination is required. (4) English Language Proficiency: Must be profi- cient in spoken and written English. KNOWLEDGE, SKILLS AND ABILITIES (KSAS) Listed below are the KSAs considered essential for successful performance in this position. Provide, on a separate sheet of paper, a DETAILED description of your experience as related to the items below: GS-08 Level: 1. Ability to receive and interperet therapy requests. 2. Knowledge of respiratory therapy. 3, Ability to communicate orally and in writing. GS-09 Level: In addition to above 4. Knowledge of respiratory therapy methods, equipment, and procedures and the ability to assume responsibility to plan, organize, direct, coordinate, and evaluate programs involving respiratory care. Basis of Rating: Your rating will be based on the quality of your experience as shown in your application and KSAs and/or Perform- ance-Based Interview. Note: All Federal employees must be meet regulatory requirements by the closing date of this announce- ment. This is a Drug-Testing Designated position. Direct Deposit is required. HOW TO APPLY-Please submit the following: (1) Application for Associated Health Occupations VA Form 10-2850C, available at http:/www.va.govivaforms and a resume or application that documents your qualifications as described above. (2) Declaration for Federal Employment OF-306, available at http:www.opm.goviforms (3) If applicable, SF-15, Application for 10-point Veteran Preference, and required documentation if claiming 10-point preference, Your VA disability confirmation letter must be dated since 1991, Official preference statements do not mention the type of disability and can be obtained by calling 1-800-827-1000. (4) If applicable, DD-214 (Must have Member Copy #4 for July 1979 and later editions); must show character of ser- vice or type of discharge. (5) SF-50b, Notification of Personnel Action, that shows your current/former position, title, series, grade, step, salary, tenure group, type of appointment (If current or former Federal employee). (6) Copy of certification, registration, etc. if applicable. You must submit copies of transcripts if qualifying based on education. Applications received by the initial cut-off date will receive first consideration. Application packages are available in our Human 9sources-Customer Service area located at the address below or you may call us at (310) 268-4154. Our office hours are mday-Friday, 8:00am to 4:00pm PST, except Federal holidays. The Department of Veterans Affairs is an Equal Opportunity Employer VAGLAHS provides reasonable accommodation for any part of the application and hiring process. Please no* our Hwnan Re- sources office accordingly. Decisions on granting reasonable accommodation will be on a case-by-case basis. Collazo Decl. Ex. C14 Case 2:14-cv-04861-JAK-FFM Document 61-2 Filed 10/07/16 Page 18 of 28 Page ID #:1216 Applications must be received by the closing date (or subsequent cut-off dates) of the announcement to receive considera- tion. Please mail or bring your application package to: VA Greater Los Angeles Healthcare Center Human Resources (Customer Service) 11301 Wilshire Blvd. Bldg. 218, Rm. 35 Los Angeles, CA 90073 The Department of Veterans Affairs is an Equal Opportunity Employer VAGLIIHS provides reasonable accommodation for any part of the application and hiring process. Please no* our Human Re- sources office accordingly. Decisions on granting reasonable accommodation will be on a case-by-case basis. Collazo Decl. Ex. C15 Case 2:14-cv-04861-JAK-FFM Document 61-2 Filed 10/07/16 Page 19 of 28 Page ID #:1217 EXHIBIT D EXHIBIT D Case 2:14-cv-04861-JAK-FFM Document 61-2 Filed 10/07/16 Page 20 of 28 Page ID #:1218 __--,,srZ.ZtzO,1 -0'" ,1 DEPARTMENT OF VETERANS AFFAIRS OFFICE OF RESOLUTION MANAGEMENT 161 Knollcroft Road Building 16 Lyons NJ 07939 SEP 1 4 2011 In reply refer to: 0811 VIA: UPS Frederick Collins 5319 East Rosebay Street Long Beach, CA 90808 SUBJECT: Notice of Acceptance of your EEO Complaint No. 200P-0691-2011104016, filed July 18, 2011, against officials of the West Los Angeles VAMC in Los Angeles, CA. 1. On July 6, 2011, you initiated contact with an EEO counselor. Counseling concluded on July 18, 2011, when you were mailed the Notice of Right to File a Discrimination Complaint, which you received on July 18, 2011. On July 18, 2011, you filed a formal complaint of discrimination, VA Form 4939. 2. Your complaint of discrimination raises the following claim: Whether complainant was discriminated against based on a disability, when on June 10, 2011, he learned that he was not referred for consideration for the position of Respiratory Therapist 3. We have determined that the claim stated above meets procedural requirements and is therefore ACCEPTED for investigation and further processing. 4. If you believe that the accepted claim is improperly formulated, incomplete, or incorrect, you must notify this office within 7 calendar days of receipt of this letter, in writing, by mail or fax, stating your disagreement. We will include your statement in the complaint file. If you do not contact this office within 7 calendar days, we will assume that the claim is correctly stated. 5. We will assign the accepted claim to an impartial investigator under the supervision of the Office of Resolution Management (ORM). The investigator will contact you directly in order to obtain information or evidence you may wish to offer. The investigator is only authorized to investigate the claim specified. 6. You have additional rights that are fully explained in the enclosures to this letter. 1 The Complainant stated that he submitted his application to Robert Gustafson, Human Resources Specialist, in January 2010.Two positions were posted that opened on October 9, 2009 and closed December 31, 2009; Certified Respiratory Therapist (CRT), GS-640-7, Vacancy # 09-1051: and Registered Respiratory Therapist (RRT), GS-601-819, Vacancy # 09-1060. 000038 Case 2:14-cv-04861-JAK-FFM Document 61-2 Filed 10/07/16 Page 21 of 28 Page ID #:1219 Page 2 Notice of Acceptance Frederick Cans 200P-0691-2011104016 7. Failure to keep this office advised of any change of address could lead to dismissal of your complaint. You must also immediately advise this office, in writing, of the name, address, and telephone number of any person you may choose to represent you. If you advise us of representation, we will mail all subsequent complaint-related correspondence to your representative, with copies to you, unless you advise us, in writing, that you are no longer represented by that individual. 8. Our fax number is 608-604-5261. If you have any questions, please contact Brenda Walton at (615) 225-3636. Sincerely, „144,4,41/ for JAMES D. JINDRA Regional EEO Officer Enclosures; Complainant Rights Request for Hearing Form cc: Facility Director 000039 Case 2:14-cv-04861-JAK-FFM Document 61-2 Filed 10/07/16 Page 22 of 28 Page ID #:1220 EXHIBIT E EXHIBIT E Case 2:14-cv-04861-JAK-FFM Document 61-2 Filed 10/07/16 Page 23 of 28 Page ID #:1221 Department of Veterans Affairs Office of Resolution Management Western Operations - Vancouver Division 1601 East 4th Plain Blvd, Bldg. B-17 Vancouver, WA 98661 Written Affidavit for: Failure to Refer/Disability In the Matter of the EEO Complaint of Discrimination Frederick Collins Complainant v. Case No: 200P-0691-2011104016 Date Filed: July 18, 2011 Secretary Department of Veterans Affairs 810 Vermont Avenue, NW Washington, DC 20420 Respondent Facility: VA Greater Los Angeles HCS 11301 Wilshire Blvd Los Angeles, CA 90073 The Claim accepted for investigation is as follows: Failure to Refer: Whether complainant was discriminated against based on a disability, when on June 10, 2011, he learned that he was not referred for consideration for the position of Respiratory Therapist. I, Robert Gustafson, solemnly swear/affirm that the information given in response to the following questions is true and complete to the best of my knowledge and belief. Are you currently employed by the Department of Veterans Affairs? Yes 000081 Case 2:14-cv-04861-JAK-FFM Document 61-2 Filed 10/07/16 Page 24 of 28 Page ID #:1222 What are the dates of your employment with the Department of Veterans Affairs? I was transferred from the Dept of Defense Contract Management Agency to the Department of Veterans Affairs on December 12 2004. Where in the DVA are you currently employed? I am employed at the following address: Veterans Health Administration Greater Los Angeles Healthcare System Human Resources Management (10A/2) Los Angeles, CA 90073 What are your current title and grade? My Current title and grade is Human Resources Specialist, GS-12. How long have you been employed in this position? I have been employed in this position for approximately 6 years and 11 months. Do you have a disability? Yes. Between January 2010 and June 11, 2011, were you aware that the complainant had a disability? I was unaware of Mr. Collins' disability until June 10, 2011. During the second meeting (June 2011), I discussed with Mr. Collins various types of appointment information (e.g. veteran's preference, former federal employee status) related to applications for a vacancy announcement. I asked him if he had any questions because I wanted to make sure that he understood my explanation. Mr. Collins asked me about schedule A which raised the issue of his disability for the first time. 000082 Case 2:14-cv-04861-JAK-FFM Document 61-2 Filed 10/07/16 Page 25 of 28 Page ID #:1223 If yes, what, to your knowledge, is the Complainant's disability? I do not know what his disability is. Were you the Personnel Specialist for the position in question? Yes. Was a selection made from the Announcement in question? Yes. Did the agency comply with all procedural requirements when filling the position? Yes. Did the complainant comply with the procedural prerequisites when applying for the position? No. Mr. Collins' application was not in the packet I received for the position, nor was his name on the list of applicants. I first saw an application on January 10, 2010. I assume he did not submit his application prior to the closing date in the Vacancy Announcement. Did the complainant submit his application prior to the closing date in the Vacancy Announcement? No. If no, on or about what date did the complainant submit his application for consideration? As best as I can recall, Mr. Collins showed me his application on January 10, 2010. That was the first time I saw his application. I did not retain a copy. 000083 Case 2:14-cv-04861-JAK-FFM Document 61-2 Filed 10/07/16 Page 26 of 28 Page ID #:1224 Why was the complainant's application not considered? The application was not considered because it appeared it was not submitted prior to the closing date on the Vacancy Announcement. It was not in the packet I received, nor was his name on the list of applicants. In the EEO Counselor's Report the complainant has stated that on June 11, 2011, he overheard you on the phone stating that in January 2010 an announcement had been open for a Respiratory Therapist. Did you make such a telephone call on June 11, 2011? June 11, 2011 is a Saturday, when the office is not open. Additionally, this complaint could not have overheard me on the telephone because I am deaf, and do not use a regular telephone. I use the video phone relay service. I communicate over that device using American Sign Language (ASL). Mr. Collins could not have overheard a conversation. Were there any Vacancy Announcements for a Respiratory Therapist between December 31, 2009 and June 10, 2011? No. In the EEO Counselor's Report you stated that you are hearing impaired. How did you and the complainant communicate? I communicated with him verbally. I am skilled at using hearing aids, lip reading and non-verbal cues to understand speech. I grew up in a hearing family and interact daily with people who cannot communicate using sign language. I was able to tell when he didn't understand what I said. Where necessary, I wrote on paper or used simple words and sentences. I was able to tell if he understood my explanation by his body language and facial expressions. Finally I asked him if he had any questions and answered those he had. Mr. Collins gave me no indication at the end of our meeting that he did not understand what I was telling him. Please describe in detail your interactions with the complainant. Please refer to previous answers giving the details of the interactions. In addition, I recall Mr. Collins seemed to accept my explanations. In the second 000084 Case 2:14-cv-04861-JAK-FFM Document 61-2 Filed 10/07/16 Page 27 of 28 Page ID #:1225 meeting he asked additional questions about various appointments and mentioned his Schedule A status. When the complainant was not referred for the position in question do you believe it was discrimination against him because of his disability? No. Did you discriminate against the complainant based on his disability? No, 1 did not discriminate against the complainant in any manner. Is there anything more you wish to state on behalf of Management with regards to the Accepted Claim? Mr. Collins received the same treatment any applicant would receive. There was nothing I could help him with regarding the positions which had closed. I am happy to respond to any additional questions. The above information has been furnished without a pledge of confidence and I understand that it may be shown to the interested parties of this complaint. This statement is made under penalty of perjury, thisLffi day of t„y:201 -1. • 1. • 'burl Gustafson 000085 Case 2:14-cv-04861-JAK-FFM Document 61-2 Filed 10/07/16 Page 28 of 28 Page ID #:1226 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EILEEN M. DECKER United States Attorney DOROTHY A. SCHOUTEN Assistant United States Attorney Chief, Civil Division ROBYN-MARIE LYON MONTELEONE Assistant United States Attorney Chief, General Civil Section, Civil Division JUSTIN A. OKUN (Cal. Bar No. 230954) Assistant United States Attorney Federal Building, Suite 7516 300 North Los Angeles Street Los Angeles, California 90012 Telephone: (213) 894-7354 Facsimile: (213) 894-7819 E-mail: Justin.Okun@usdoj.gov Attorneys for Defendant ROBERT A. MCDONALD Secretary, Department of Veterans Affairs UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA FREDRIC COLLINS, Plaintiff, v. ROBERT A. MCDONALD, Secretary, U.S. Department of Veterans Affairs, et al., Defendants. No. CV 14-04861 JAK (FFMx) DECLARATION OF EVAN N. STEIN IN SUPPORT OF DEFENDANT ROBERT A. MCDONALD’S MOTION FOR SUMMARY JUDGMENT Honorable John A. Kronstadt United States District Judge Case 2:14-cv-04861-JAK-FFM Document 61-3 Filed 10/07/16 Page 1 of 21 Page ID #:1227 Case 2:14-cv-04861-JAK-FFM Document 61-3 Filed 10/07/16 Page 2 of 21 Page ID #:1228 EXHIBIT F EXHIBIT F Case 2:14-cv-04861-JAK-FFM Document 61-3 Filed 10/07/16 Page 3 of 21 Page ID #:1229 Case 2:14-cv-04861-JAK-FFM Document 61-3 Filed 10/07/16 Page 4 of 21 Page ID #:1230 Case 2:14-cv-04861-JAK-FFM Document 61-3 Filed 10/07/16 Page 5 of 21 Page ID #:1231 Case 2:14-cv-04861-JAK-FFM Document 61-3 Filed 10/07/16 Page 6 of 21 Page ID #:1232 Case 2:14-cv-04861-JAK-FFM Document 61-3 Filed 10/07/16 Page 7 of 21 Page ID #:1233 Case 2:14-cv-04861-JAK-FFM Document 61-3 Filed 10/07/16 Page 8 of 21 Page ID #:1234 Case 2:14-cv-04861-JAK-FFM Document 61-3 Filed 10/07/16 Page 9 of 21 Page ID #:1235 Case 2:14-cv-04861-JAK-FFM Document 61-3 Filed 10/07/16 Page 10 of 21 Page ID #:1236 Case 2:14-cv-04861-JAK-FFM Document 61-3 Filed 10/07/16 Page 11 of 21 Page ID #:1237 Case 2:14-cv-04861-JAK-FFM Document 61-3 Filed 10/07/16 Page 12 of 21 Page ID #:1238 Case 2:14-cv-04861-JAK-FFM Document 61-3 Filed 10/07/16 Page 13 of 21 Page ID #:1239 Case 2:14-cv-04861-JAK-FFM Document 61-3 Filed 10/07/16 Page 14 of 21 Page ID #:1240 Case 2:14-cv-04861-JAK-FFM Document 61-3 Filed 10/07/16 Page 15 of 21 Page ID #:1241 Case 2:14-cv-04861-JAK-FFM Document 61-3 Filed 10/07/16 Page 16 of 21 Page ID #:1242 Case 2:14-cv-04861-JAK-FFM Document 61-3 Filed 10/07/16 Page 17 of 21 Page ID #:1243 Case 2:14-cv-04861-JAK-FFM Document 61-3 Filed 10/07/16 Page 18 of 21 Page ID #:1244 Case 2:14-cv-04861-JAK-FFM Document 61-3 Filed 10/07/16 Page 19 of 21 Page ID #:1245 Case 2:14-cv-04861-JAK-FFM Document 61-3 Filed 10/07/16 Page 20 of 21 Page ID #:1246 Case 2:14-cv-04861-JAK-FFM Document 61-3 Filed 10/07/16 Page 21 of 21 Page ID #:1247 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EILEEN M. DECKER United States Attorney DOROTHY A. SCHOUTEN Assistant United States Attorney Chief, Civil Division ROBYN-MARIE LYON MONTELEONE Assistant United States Attorney Chief, General Civil Section, Civil Division JUSTIN A. OKUN (Cal. Bar No. 230954) Assistant United States Attorney Federal Building, Suite 7516 300 North Los Angeles Street Los Angeles, California 90012 Telephone: (213) 894-7354 Facsimile: (213) 894-7819 E-mail: Justin.Okun@usdoj.gov Attorneys for Defendant ROBERT A. MCDONALD Secretary, Department of Veterans Affairs UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA FREDRIC COLLINS, Plaintiff, v. ROBERT A. MCDONALD, Secretary, U.S. Department of Veterans Affairs, et al., Defendants. No. CV 14-04861 JAK (FFMx) DECLARATION OF JUSTIN A. OKUN IN SUPPORT OF DEFENDANT ROBERT A. MCDONALD’S MOTION FOR SUMMARY JUDGMENT Honorable John A. Kronstadt United States District Judge Case 2:14-cv-04861-JAK-FFM Document 61-4 Filed 10/07/16 Page 1 of 34 Page ID #:1248 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF JUSTIN A. OKUN I, Justin A. Okun, hereby declare: 1. I am an Assistant United States Attorney in the Central District of California and the attorney primarily responsible for representing defendant Robert A. McDonald, Secretary of the Department of Veterans Affairs, in this action. I have personal knowledge of the following facts, and if called upon, I would truthfully testify as set forth below. 2. Plaintiff has not made any initial disclosures in this case. In particular, Plaintiff has not identified individuals, by name, address, and telephone number, likely to have discoverable information in this case. 3. Plaintiff has not propounded any discovery in this case or taken any depositions. 4. Attached hereto as Exhibit G is a true and correct copy of excerpts of the transcript of Plaintiff’s deposition, which I took on August 9, 2016. I declare under penalty of perjury pursuant to 28 U.S.C. § 1746 that the foregoing is true and correct. Executed this 7th day of October, 2016, at Los Angeles, California. /s/ Justin A. Okun JUSTIN A. OKUN Assistant United States Attorney Case 2:14-cv-04861-JAK-FFM Document 61-4 Filed 10/07/16 Page 2 of 34 Page ID #:1249 EXHIBIT G EXHIBIT G Case 2:14-cv-04861-JAK-FFM Document 61-4 Filed 10/07/16 Page 3 of 34 Page ID #:1250 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION FREDRIC COLLINS, ) ) Plaintiff, ) ) vs. ) CASE NO.: 2:14-CV- ) 04861-JAK ROBERT A. MCDONALD, Secretary, ) (FFMx) Department of Veteran Affairs; ) and JOHN DOES 1 through 20, ) Inclusive, ) ) Defendants. ) ) DEPOSITION OF: FREDRIC COLLINS TAKEN BY : JUSTIN OKUN, ESQUIRE Commencing : 10:15 A.M. Location : 300 N. Los Angeles Street Suite 7516 Los Angeles, California 90012 Day, Date : Tuesday, August 9, 2016 Reported by : NATALIE RODRIGUEZ, C.S.R. NO. 12851 Pursuant to : Notice Original to : JUSTIN OKUN, ESQUIRE Pages 1 - 100 Job No. 145676 Case 2:14-cv-04861-JAK-FFM Document 61-4 Filed 10/07/16 Page 4 of 34 Page ID #:1251 California Deposition Reporters Page: 2 1 2 APPEARANCES OF COUNSEL 3 4 5 FOR THE PLAINTIFF(S): IN PRO PER 6 7 8 9 FOR THE DEFENDANT(S): US DEPARTMENT OF JUSTICE 10 300 N. Los Angeles Street Suite 7516 11 Los Angeles, California 90012 (213) 894-0165 12 BY: JUSTIN OKUN, ESQ. 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 2:14-cv-04861-JAK-FFM Document 61-4 Filed 10/07/16 Page 5 of 34 Page ID #:1252 California Deposition Reporters Page: 3 1 2 I N D E X 3 4 WITNESS PAGE 5 FREDRIC COLLINS 6 Examination by Mr. Okun 4 7 8 9 EXHIBITS 10 11 DEFENDANT'S MARKED FOR EXHIBIT NO. DESCRIPTION IDENTIFICATION 12 1 Exhibit Binder 39 2 Excerpt of OPM Laws 39 13 3 Certification of Personnel Action 74 4 Complaint of Employment Discrimination 82 14 5 Affidavit for Failure to Refer 85 6 Fort Belvoir Document 89 15 7 EEOC Complaint 92 16 17 INFORMATION REQUESTED 18 (None) 19 QUESTIONS NOT ANSWERED 20 (None) 21 22 23 24 25 Case 2:14-cv-04861-JAK-FFM Document 61-4 Filed 10/07/16 Page 6 of 34 Page ID #:1253 California Deposition Reporters Page: 4 1 LOS ANGELES, CALIFORNIA, TUESDAY, AUGUST 9, 2016 2 10:15 A.M. 3 -O0O- 4 5 6 FREDRIC COLLINS, 7 the witness herein, after having been duly sworn, was 8 deposed and testified as follows: 9 10 EXAMINATION 11 BY MR. OKUN: 12 Q Good morning, Mr. Collins. 13 A Good morning. 14 Q Can you state your name for the record, 15 spelling your last? 16 A Fredric Collins, C-o-l-l-i-n-s. Fredric, 17 F-r-e-d-r-i-c. 18 Q Have you ever been deposed before? 19 A Not in a federal case, no. 20 Q Have you been deposed in a state case? 21 A An insurance company. 22 Q How many times? 23 A I think it was only once. 24 Q I'll go over some rules. You're under oath. 25 The court reporter just put you under oath. It is just Case 2:14-cv-04861-JAK-FFM Document 61-4 Filed 10/07/16 Page 7 of 34 Page ID #:1254 California Deposition Reporters Page: 16 1 19th. I brought in my application to him, my DD-214, 2 SF-50. I showed him my retirement card where they had 3 cut my -- cut my check off. I had showed him that. So, 4 as I understood, he said that there were no positions 5 open at this time. This was like in November of 2009, 6 and Mr. Gustafson said that I could put my application in 7 and he'd just hold it, but he said there was no position 8 open for respiratory therapist. 9 Q I do want to get to your complaint but not 10 quite yet. 11 A Okay. 12 Q So you stopped working, you believe, in 1989 or 13 1993 for the federal government? 14 A Right. 15 Q What did you do after for work? 16 A What did I do? 17 Q Yeah. 18 A I tried to go to school. Like between '89 and 19 '91 I tried to go to school on and off. I had to stop 20 because of the headaches. I stopped for a little while 21 and then I started back and finally finished in December 22 of '91. 23 Q You were going to school while you were working 24 for the federal government? 25 A No, I wasn't. I was trying to rehabilitate Case 2:14-cv-04861-JAK-FFM Document 61-4 Filed 10/07/16 Page 8 of 34 Page ID #:1255 California Deposition Reporters Page: 17 1 myself on my own. 2 Q Why were you rehabilitating yourself on your 3 own? 4 A Because I remembered something a while back, 5 when I was younger, that the more education you have the 6 better off you're going to be in life. 7 Q Were you under a doctor's care at this time? 8 A I was under a doctor's care. 9 Q Did he help you rehabilitate yourself? 10 A He said I could go to school. If the headaches 11 became great, to stop. 12 Q How did you rehabilitate yourself? 13 A By going to school and by studying and I was -- 14 when I was going through school, other people, you know, 15 tried to encourage me to just continue on. Even the 16 teachers. You know, like, even though I had an injury to 17 try to just slow down a little bit and try to get through 18 this. 19 Q When you say rehabilitate yourself, what 20 changed between before you rehabilitated yourself and 21 after? 22 A The headaches had changed where I wasn't having 23 as many and they weren't severe because I had a ball that 24 was sticking out the front of my head that was the size 25 of a golf ball. When it happened, it took a long time Case 2:14-cv-04861-JAK-FFM Document 61-4 Filed 10/07/16 Page 9 of 34 Page ID #:1256 California Deposition Reporters Page: 18 1 for it to go down. 2 Q So going to school rehabilitated it? 3 A It helped once I started praying about it and 4 trying to do it. You know, the more I continued to try 5 to work on getting through it because it was a hard time 6 because I had -- back then I had kids that were there at 7 home, and I tried to do the best I could, and my wife -- 8 she was on and off with cancer of the breast. 9 Q When did you -- after you finished school did 10 you go to work somewhere? 11 A After I finished school, no, I couldn't. I had 12 to take care of her. She had gotten worse. 13 Q How were you supporting yourself? 14 A With whatever means necessary as far as her -- 15 she had a check coming in every month and I had a check 16 and that was sufficient. 17 Q What was your check? 18 A It was from the federal government; US Treasury 19 Department. 20 Q Was that a disability check? 21 A Yes. 22 Q What was the check your wife was receiving? 23 A She was a disabled vet. She had fell 25 feet 24 in the military in a confidence course in a combat unit. 25 Q So she had a check for disability as well? Case 2:14-cv-04861-JAK-FFM Document 61-4 Filed 10/07/16 Page 10 of 34 Page ID #:1257 California Deposition Reporters Page: 21 1 Q What years did you live in Texas? 2 A I think 2005 to -- maybe 2004 to 2005. 3 Q Where did you work there? 4 A Different hospitals. J. Peter Smith, Care Med 5 in Plano. A few different areas that were in the Texas 6 area. Fort Worth. 7 Q When did you return to California? 8 A Not until late 2007, I believe. 9 Q What did you do between 2006 and 2007? 10 A I was a respiratory therapist in Nevada. 11 Q Where in Nevada? 12 A In Las Vegas. 13 Q Where did you work there? 14 A At different hospitals. Mountain View. Local 15 hospitals in that area through a registry called PRN. 16 Q And you returned to California in 2007? 17 A 2007. I believe it was in 2007 when they 18 granted me a license through the State of California. 19 Q When you were working in Texas and Nevada, did 20 you have headaches that prevented you from working? 21 A Not so much. 22 Q When you say not so much, did it ever happen? 23 A It did happen, but they weren't severe anymore 24 like they were. 25 Q Did it prevent you from doing anything? Case 2:14-cv-04861-JAK-FFM Document 61-4 Filed 10/07/16 Page 11 of 34 Page ID #:1258 California Deposition Reporters Page: 22 1 A I don't believe so. Not at that time. 2 Q When you came back in 2007 to California, did 3 you begin work anywhere? 4 A Yes. I tried through a registry in California. 5 I picked up shifts at different hospitals. 6 Q As a respiratory therapist? 7 A Right. 8 Q Do you still work? 9 A Not at this time. 10 Q When did you stop working? 11 A A little over a year ago. 12 Q Why? 13 A I haven't been able to get any work. I 14 remember when I applied through registries, they said 15 they had no work because the people who were with them a 16 long time got the work. People who had been with them at 17 least 10, 15 years got the work. The rest of the people 18 didn't have work for them. 19 Q Have you attempted to find a job again in Texas 20 or Nevada? 21 A I attempted -- no, not there. I attempted to 22 find a job in Long Beach and Sepulveda. 23 Q What's Long Beach? 24 A Long Beach Hospital, VA Medical Center. 25 Q And what's Sepulveda? Case 2:14-cv-04861-JAK-FFM Document 61-4 Filed 10/07/16 Page 12 of 34 Page ID #:1259 California Deposition Reporters Page: 42 1 A I started reading them and I was just shocked 2 that there was so many infractions that were against me. 3 Q What year was this? 4 A This was within the last year, I'd say. 5 Q Let's go back to Document 50, page two of 128. 6 The second to last line refers to noncompetitive status. 7 What is noncompetitive status? 8 A It means that you don't -- I guess it means 9 that -- I'm not sure about what this means, but that you 10 don't have to compete with anyone. 11 Q Why don't you have to compete with anyone? 12 A Because it says that -- in reinstatement that I 13 don't have to compete with outside employees coming from 14 the outside being hired. I don't have to compete with 15 them as long as I qualify for the position. 16 Q Where does it say that? 17 A Under reinstatement for the federal government. 18 Q What's reinstatement? 19 A Reinstatement is where a former federal 20 employee comes and puts in for a position that they do 21 have open that they don't have to hire from the outside. 22 That they can hire me even if they have a freeze on. 23 Q Did you ever make a complaint or bring any 24 claim before the Merit Systems Protection Board in 25 Washington DC? Case 2:14-cv-04861-JAK-FFM Document 61-4 Filed 10/07/16 Page 13 of 34 Page ID #:1260 California Deposition Reporters Page: 45 1 it states at the top that you attained the highest 2 ranking in your seniority status. Do you see that? 3 A Yes. 4 Q What is seniority status? 5 A I was a senior as far as status when they hired 6 the person that they hired. 7 Q What is the highest ranking? 8 A As far as hiring it's a person who already has 9 seniority in the federal government and one who doesn't. 10 I would be the highest seniority at that time right then. 11 When I applied in November of 2009, that position was 12 open, and Mr. Gustafson, I guess, during this time had 13 lied or they had someone in place to be hired. 14 Q It says "the Defendant and/or his subordinates 15 concealed that status." Do you see that? 16 A Yes. 17 Q How did they conceal your status? 18 A By not putting me in and holding my 19 application. Mr. Gustafson held my application from 2009 20 all the way up till then and then comes out with a letter 21 saying that my application was late. That was 22 concealment. 23 Q How was that concealment? 24 A Because he made sure that he held my 25 application and when this letter came out from the -- the Case 2:14-cv-04861-JAK-FFM Document 61-4 Filed 10/07/16 Page 14 of 34 Page ID #:1261 California Deposition Reporters Page: 46 1 representative from Long Beach, when this letter came out 2 from Long Beach, they asked him then, "Well, since you 3 made a mistake, what are you going to do to correct it?" 4 Q What letter are you referring to? 5 A The letter that Mr. Gustafson wrote with the 6 Congressman Lowenthal stamp on it. 7 Q What letter is that? 8 A It's a letter saying he didn't believe I was in 9 the ICTAP. 10 Q Was that included as part of the Second Amended 11 Complaint? 12 A Yes. 13 Q Can you find that letter for me? 14 A Here it is. 15 Q So if we go to the binder in front of you, that 16 will be Document 50-2, page 46 of 144. This is the 17 letter you're referring to? 18 A Yes, it is. It's dated October 28, 2013. 19 Q How does this letter that we're looking at, 20 Document 50-2, page 46 of 144, how does it show that your 21 status was concealed? 22 A Mr. Gustafson said, I quote -- said that he 23 didn't believe that I -- that I was under this ICTAP 24 program even though I had an SF-50 and my veteran -- my 25 document 214 showing that I was in the military, he Case 2:14-cv-04861-JAK-FFM Document 61-4 Filed 10/07/16 Page 15 of 34 Page ID #:1262 California Deposition Reporters Page: 47 1 didn't believe that -- I told him I worked for the naval 2 shipyard. At that time I had an SF-50 showing him, and I 3 had my retirement card. I showed him where they were 4 giving me a retirement disability annuity and they had 5 cut the check off. I told him. 6 Q When did they cut the check off? 7 A They cut the check off in January 2010. 8 Q When did you meet with Mr. Gustafson and tell 9 him they cut the check off? 10 A I met him in November. 11 Q Of what year? 12 A Of 2009. 13 Q How did you tell him they cut the check off in 14 November of 2009 if it didn't happen -- 15 A I said I had a letter that they were going to 16 cut it off. 17 Q Was that letter included in your Second Amended 18 Complaint? 19 A It was not included. 20 Q Why? 21 A I had sent for a copy of that letter because I 22 didn't have it. I never got the letter. 23 Q I don't understand. 24 A I had it in a stack of documents, but it was 25 not in this stack of documents. I had sent for it and it Case 2:14-cv-04861-JAK-FFM Document 61-4 Filed 10/07/16 Page 16 of 34 Page ID #:1263 California Deposition Reporters Page: 49 1 Q Who is Tony Perez? 2 A He was like the secretary to Harold Goings. 3 Q Tony Perez? 4 A Right. 5 Q P-e-r-e-z? 6 A Yes. 7 Q Secretary to Goings? 8 A Right. I don't know if that was his title, but 9 that's who was on the -- 10 Q What did he tell you? 11 A He said that he believed that -- he said -- 12 well, he knew I turned my application in and that I was 13 having a problem. He said that he knew that my 14 documentation was turned in and it was turned in on time. 15 Q How did he become an anonymous source that told 16 you your status was concealed? 17 A Well, I believe my status was concealed by 18 Mr. Gustafson holding my application. I believe he 19 concealed it to do damage to me. 20 Q Why would he try to do damage to you? 21 A As a federal employee I would not only have 22 seniority but I would number one for the position to be 23 hired for that particular position because the person 24 that they hired was a non-vet and she was 21. 25 Q So what was your -- what do you believe is the Case 2:14-cv-04861-JAK-FFM Document 61-4 Filed 10/07/16 Page 17 of 34 Page ID #:1264 California Deposition Reporters Page: 50 1 reason they concealed your status? 2 A Either they were ignorant of the law or they 3 had other -- you know, they wanted someone else other 4 than me to be in that position. 5 Q Any other reason? 6 A I can't think of any at this time. 7 Q How does the concealing of your status relate 8 to your allegations of discrimination based on 9 disability, race and age? 10 A Because the person that was hired over me was 11 21, Caucasian, nonveteran, and he had everything to do 12 with that. Mr. Gustafson had everything to do with that. 13 Q What do you mean everything to do with it? 14 A As far as the selection process goes. 15 Q How do you know that? 16 A Because it said something about the selection 17 process here. Mr. Gustafson handled the recruitment 18 process. 19 Q Here being the letter from Congressman 20 Lowenthal? 21 A Yes. 22 Q Do you know how many people applied for this 23 position that the 21-year-old Caucasian got? 24 A No, I don't. 25 Q Do you know of anyone who applied for that Case 2:14-cv-04861-JAK-FFM Document 61-4 Filed 10/07/16 Page 18 of 34 Page ID #:1265 California Deposition Reporters Page: 51 1 position? 2 A I do not. 3 Q Do you know what her name is? 4 A No, I don't. 5 Q How do you know that a younger worker, a 6 21-year-old female Caucasian got the job? 7 A How do I know? Because when I was trying to 8 investigate the situation, you know, that somebody said 9 the worker was younger than me and was Caucasian. 10 Q Who said that? 11 A One of the workers that worked there. I don't 12 even know the name at the time, but I asked was anybody 13 hired during that time. 14 Q During what time? 15 A During the time that I put in my application 16 for this position. I asked people and they weren't 17 forthcoming in that office and so -- and then when 18 somebody did tell me that it was a lot younger employee 19 than me and she was not a veteran, that's, when I found 20 out, I filed the EEOC. 21 Q Who told you this? 22 A I can't think of the name -- a name right now. 23 I'm not forthcoming with a name, but in the EEOC 24 complaint they found out that it was a younger person 25 than me that got the position and she was a non-vet, Case 2:14-cv-04861-JAK-FFM Document 61-4 Filed 10/07/16 Page 19 of 34 Page ID #:1266 California Deposition Reporters Page: 52 1 which was violating my civil rights. 2 Q How does that violate your civil rights? 3 A Because I'm a minority and Affirmative Action 4 applies. 5 Q It says the younger worker, a 21-year-old 6 female Caucasian, without the experience or the 7 Plaintiff's qualifications. 8 A Right. 9 Q How do you know what her experience or 10 qualifications are? 11 A I understand she was fresh out of school. 12 Q Who told you that? 13 A I believe it was someone in AHP, the registry. 14 Q What registry? 15 A AHP. 16 Q What does AHP stand for? 17 A It's a health care registry for respiratory 18 therapists and nurses. 19 Q Is that run by the federal government? 20 A No. 21 Q Is it run by the Department of Veterans 22 Affairs? 23 A No. 24 Q How would someone there know what the 25 experience or qualifications are of this woman who you Case 2:14-cv-04861-JAK-FFM Document 61-4 Filed 10/07/16 Page 20 of 34 Page ID #:1267 California Deposition Reporters Page: 53 1 claim was hired by the Department of Veteran Affairs? 2 A Well, they're a private agency and I was told 3 in there that somebody was applying for the position as 4 respiratory therapist over at West LA. That's what I was 5 told by somebody, and it was a young girl who was 21 who 6 was applying for this agency. 7 Q Who told you that? 8 A One of the workers there. I don't know exactly 9 who it was. 10 Q One of the workers where? 11 A At AHP. 12 Q Did they tell you this in person? 13 A They just mentioned it. They said there is 14 somebody applying for a position over at West LA, and 15 this was in November of 2009. 16 Q Did they call you and tell you this? 17 A No. I was in there one day and the lady said 18 have you worked anywhere else and I said I'm looking to 19 try to get into the VA, and this lady said I heard one of 20 the ladies that work here as a respiratory therapist is 21 applying for a position over there. 22 Q What year was that? 23 A That was 2009 in November. 24 Q November of 2009 you walked into AHP's 25 headquarters? Case 2:14-cv-04861-JAK-FFM Document 61-4 Filed 10/07/16 Page 21 of 34 Page ID #:1268 California Deposition Reporters Page: 54 1 A Yeah, because I was -- I believe was picking up 2 a check at the time. 3 Q Why were you picking up a check? 4 A Because they were paying on that particular 5 day. 6 Q Why were they paying? 7 A Because I had worked a week or whatever. 8 Q They told you someone got hired at the 9 Department of Veteran Affairs? 10 A No. They just said that someone applied, and I 11 said -- I asked them is the position open and they said I 12 guess it is. 13 Q If we go back to Document 50, page three of 14 128, you discuss Standard Form 50. What is a Standard 15 Form 50? 16 A Standard Form 50 is showing your status within 17 the federal government. 18 Q Are you sure? 19 A Well, it's showing what -- if you're a 20 permanent worker for the federal government or if you -- 21 whatever your status was in the federal government at one 22 time. It shows -- and it shows what you're being paid -- 23 what you were being paid at the time, and it shows -- it 24 shows your status. 25 Q It says your Standard Form 50 must accompany Case 2:14-cv-04861-JAK-FFM Document 61-4 Filed 10/07/16 Page 22 of 34 Page ID #:1269 California Deposition Reporters Page: 63 1 Q So you've applied since November of 2009? 2 A Yes. 3 Q Many times? 4 A Yes. 5 Q And every time you haven't gotten the job it's 6 because of what? 7 A I believe -- I now believe it's my age now. 8 Q Age. What about race or disability? 9 A I believe it could be my race now, but with the 10 West LA, yes, it was race and it was age and it was civil 11 rights violations. 12 Q But not disability? 13 A I was disabled when I applied because my 14 disability didn't end until January of 2010. Around the 15 7th or 10th of 2010. 16 Q So your disability is simply because you were 17 receiving an annuity? 18 A I was receiving an annuity. 19 Q You haven't brought any EEOC complaints other 20 than that one; correct? 21 A Correct. 22 Q But you believe you've been discriminated 23 against repeatedly? 24 A Yes. 25 Q Based just on age and race? Case 2:14-cv-04861-JAK-FFM Document 61-4 Filed 10/07/16 Page 23 of 34 Page ID #:1270 California Deposition Reporters Page: 64 1 A Yes. 2 Q Not disability? 3 A At first I felt like it was disability, when I 4 applied in November of 2009, because I had a disability 5 and even though it ended in January 2010, they have a law 6 that says that -- that I would be offered a position 7 within a hundred miles radius in a position of which I 8 qualified for. 9 Q What law was that? 10 A It's under Priority Placement. 11 Q What Priority Placement? The Department of 12 Defense Priority Placement Program? 13 A Yes. 14 Q Says you must be given a job? 15 A It says that when an annuity is terminated, I 16 can expect a job offer. 17 Q How does this relate though to discrimination 18 based on age, race or disability? 19 A Well, the person was younger and I'm a 20 minority. 21 Q So any time -- 22 A And they have -- the federal government has a 23 minority quota. 24 Q It does? 25 A It does. It surely does. Case 2:14-cv-04861-JAK-FFM Document 61-4 Filed 10/07/16 Page 24 of 34 Page ID #:1271 California Deposition Reporters Page: 65 1 Q If every time you apply for a job, if someone 2 is younger or someone Caucasian gets it, does it have to 3 be discrimination? 4 A No. 5 Q What makes it discrimination here? 6 A What makes it discrimination here is that I'm a 7 vet. I'm a minority, and plus I already have seniority 8 in the federal government as a career employee not as a 9 temporary. 10 Q What if you didn't have that seniority or the 11 placement status, would that be discrimination? 12 A If I wasn't in the military, no. 13 Q So if you didn't have your veteran status -- 14 A Or my career status. 15 Q You don't believe it's discrimination? 16 A I wouldn't believe discrimination unless I 17 found out that the person was younger than me and that I 18 did. 19 Q Let's say you didn't have what you believe is a 20 privileged status or priority placement status and you 21 didn't have any status based on veteran, do you 22 believe -- without that is there a discrimination just 23 because someone younger than you or a different race than 24 you gets hired? 25 A Person is younger than me, I agree with that Case 2:14-cv-04861-JAK-FFM Document 61-4 Filed 10/07/16 Page 25 of 34 Page ID #:1272 California Deposition Reporters Page: 66 1 part. If they were the same age or -- if they were the 2 same age, of a different race, it would be fine if they 3 got hired over me, if they qualified, you know. I felt 4 like I not only qualified, but I had the status in the 5 federal government, which that person didn't have any 6 status in the federal government and wasn't even a vet 7 and it tells you in 38C, 4214 -- Section 4214 that 8 employment with the federal government that the United 9 States has an obligation to veterans. 10 Q I want to put aside your veteran status. 11 A I know you do. 12 Q I want to put aside what you believe is your 13 privilege status or priority placement status. How is 14 there discrimination against you based on disability, 15 race and age? 16 A I had a disability and I was -- and when my 17 disability ended, the law states that they were supposed 18 to hire me. 19 Q I understand -- 20 A Give me an offer of three different areas 21 within a hundred mile radius. 22 Q I understand -- 23 A I know what you're trying to say is race. Is 24 it involved? 25 Q How is race involved? Case 2:14-cv-04861-JAK-FFM Document 61-4 Filed 10/07/16 Page 26 of 34 Page ID #:1273 California Deposition Reporters Page: 83 1 that your signature? 2 A It is my signature. 3 Q Is this your handwriting on the document? 4 A Yes. 5 Q You see there's a box eight, claim, right in 6 the middle. It has written veteran failure to refer to 7 position. 8 A I don't know that I recognize this. 9 Q Do you know why you filled this out? 10 A It was a complaint of employment 11 discrimination. 12 Q It says date of occurrence January 2010. Do 13 you see that? 14 A Right there. 15 Q Why did you put January 2010? 16 A As I understood, they hired the person in 17 January of 2010. 18 Q They hired who in January 2010? 19 A The person of 21 and younger. 20 Q How do you know that? 21 A Well, I just know. 22 Q How did you know? 23 A I talked with somebody at the VA. 24 Q Who did you talk to? 25 A It was Caroline. Case 2:14-cv-04861-JAK-FFM Document 61-4 Filed 10/07/16 Page 27 of 34 Page ID #:1274 California Deposition Reporters Page: 84 1 Q What's her last name? 2 A I don't know her last name, but she worked for 3 the EEOC. 4 Q When did you talk to her? 5 A It was in that year. 6 Q What year? 7 A Of 2010. 8 Q You talked to her in 2010? 9 A Right. 10 Q What did she tell you? 11 A She told me they had hired someone younger than 12 you. 13 Q It says the basis for this discrimination is 14 disability? 15 A Actually, it was disability, race and age. 16 Q Why did you only put disability? 17 A At the time that I had the disability, I should 18 have -- I should have got the position -- I should have 19 had -- any position as respiratory therapist I should 20 have been offered the position, period. That's the way 21 the priority placement -- and it should have been a stop 22 in November of 2009. It should have been a stop -- a 23 stopper put on it. That's what it's called. 24 Q What's a stopper? 25 A A stopper is where they stop all action for any Case 2:14-cv-04861-JAK-FFM Document 61-4 Filed 10/07/16 Page 28 of 34 Page ID #:1275 California Deposition Reporters Page: 86 1 response to questions you received? 2 A Yes. 3 Q This is all correct answers? 4 A Okay. 5 Q Are all these answers correct? 6 A I'm not sure at this time. 7 Q Why are you not sure? 8 A Because I haven't finished reading. I told 9 them that I had a disability. 10 Q You told who? 11 A Mr. Gustafson, Melody Woods. That I worked for 12 Long Beach Naval Shipyard in the past. 13 Q If you go to page 7 of this document. 14 A Okay. 15 Q How did you discover you were not referred to 16 this position; do you see that? 17 A Okay. 18 Q You wrote overheard a conversation. What 19 conversation did you overhear? 20 A I was standing on the side and he was talking 21 to somebody. 22 Q Hold on. Standing on what side? 23 A I was standing on the side where he wouldn't 24 see me. 25 Q Who is he? Case 2:14-cv-04861-JAK-FFM Document 61-4 Filed 10/07/16 Page 29 of 34 Page ID #:1276 California Deposition Reporters Page: 87 1 A Mr. Gustafson. I was in the office where he 2 was and he was talking about a position for respiratory 3 therapist, and I overheard him say that a position was 4 open. 5 Q When was this? 6 A It was right after the position had closed. 7 Q When did the position close? 8 A He says the position closed December 31. 9 Q Of what year? 10 A Of 2009. 11 Q So just after December 31, 2009, you went to 12 visit -- 13 A To see what was going on with the application. 14 Q Where were you? Where did you go? 15 A To speak to Mr. Gustafson. 16 Q Do you remember what month this was? 17 A It was January. 18 Q Of what year? 19 A Of 2010. 20 Q Did you ever go to see Mr. Goings? 21 A I did. 22 Q When did you go see Mr. Goings? 23 A I'm not exactly sure when I went to see him, 24 but after I spoke with Mr. Gustafson, Melody Harris and 25 then I spoke -- I asked her who her boss was and she said Case 2:14-cv-04861-JAK-FFM Document 61-4 Filed 10/07/16 Page 30 of 34 Page ID #:1277 California Deposition Reporters Page: 89 1 we come back to this, Civilian Personnel Advisory Center 2 under 5U.S.C.3110(e) and CFR Part 310, Subpart A, filing 3 applications, and it says late application but I didn't 4 file late. A veteran may file an application under the 5 following circumstances by contacting the employing 6 agency. Agencies are responsible for accepting, 7 retaining and considering their applications as required 8 by law and regulation regardless of whether the agency 9 uses case examining or maintains a continuing register of 10 eligibles. 11 Q What is this document? 12 A I'm sorry. Here it is. 13 Q We'll make that document you just read from 14 Exhibit 6. I thought you said you applied for this job 15 in November of 2009. Is it November of 2009 or January 16 2009? 17 A Well, I first applied in January of, like, 18 2009. 19 (Defendant's Exhibit 6 was marked for 20 identification by the court reporter 21 and is attached hereto.) 22 Q You first applied? 23 A That was the first application. 24 Q How did you make that application? 25 A I turned it in. Case 2:14-cv-04861-JAK-FFM Document 61-4 Filed 10/07/16 Page 31 of 34 Page ID #:1278 California Deposition Reporters Page: 90 1 Q To who? 2 A To Mr. Gustafson. 3 Q So you saw Mr. Gustafson in January 2009? 4 A In about January 2009. 5 Q And then you applied again in November 2009? 6 A Yes. 7 Q How come you never said that before in your 8 complaint? 9 A It's something that I had forgotten because I 10 ran from -- when I was going to apply through different 11 agencies and looking at who I should call, like the 12 Commander of the 9th Naval District is over Long Beach, 13 Seal Beach and San Diego. Since Long Beach shut down, 14 they said the next person to call is the Commander of the 15 9th Naval District, which I tried to get in contact with 16 him. 17 Q In January of 2009 you applied? 18 A I applied in January of 2009 because -- 19 Q Why would there be disability discrimination in 20 January of 2009? 21 A Well, I was still under that disability at that 22 time. 23 Q So you weren't, in your mind, eligible for any 24 Priority Placement in January of 2009? 25 A I don't know. That's what I don't know. This Case 2:14-cv-04861-JAK-FFM Document 61-4 Filed 10/07/16 Page 32 of 34 Page ID #:1279 California Deposition Reporters Page: 96 1 A I'm sure. 2 Q Okay. 3 A I was explaining -- this is how it works. 4 Q I'm going to have to take a break for just a 5 second. 6 (A recess was taken.) 7 Q BY MR. OKUN: Mr. Collins, did anyone at the 8 VA, when you were applying for a respiratory therapist 9 position or any time in your interaction with them during 10 your hiring process, say anything that made you think 11 there was any animus towards you based on race? 12 A I felt uncomfortable when I was speaking with 13 Mr. Gustafson. I felt uncomfortable around him. 14 Q Why? 15 A Because at one moment, while I was standing 16 there, somebody approached from behind and told me to get 17 out. 18 Q How is that related to your race? 19 A I don't know, but I felt, you know, at a loss 20 when the person told me -- you know, I was talking to him 21 about what is going on, why I wasn't hired, and they told 22 me to get out. 23 Q What would be the reasons you believe show that 24 there was discrimination against you based on race? 25 A When I found out the person was younger than me Case 2:14-cv-04861-JAK-FFM Document 61-4 Filed 10/07/16 Page 33 of 34 Page ID #:1280 California Deposition Reporters Page: 97 1 and that they were Caucasian. 2 Q Anything else? 3 A And that when I -- when I later found out that 4 I was guaranteed a job by the DOD in a federal agency. 5 Q What are the reasons -- 6 A That I qualified for. 7 Q What are the reasons you believe show that you 8 were discriminated against based on age? 9 A Age and race. 10 Q What are the reasons? 11 A My ethnicity. 12 Q Tell me the reasons that show that you were 13 discriminated against based on age? 14 A The person was a lot younger than me, a lot 15 younger, and they were Caucasian. The person was 16 Caucasian that I found out and if we get down to a trial 17 and we have to do a Freedom of Information Act, we will, 18 but I mean -- you know, you haven't brought any 19 information to the table. You haven't offered anything 20 and that tells me that you don't care anything about 21 veterans. You may be a vet. I don't know. 22 But it tells me that trying to put me back to 23 work is not a eventuality with you or trying to put me 24 somewhere in the system to work as a respiratory 25 therapist. It tells me that you don't care and that the Case 2:14-cv-04861-JAK-FFM Document 61-4 Filed 10/07/16 Page 34 of 34 Page ID #:1281 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CERTIFICATE OF SERVICE BY MAIL I am over the age of 18 and not a party to the within action. I am employed by the Office of United States Attorney, Central District of California. My business address is 300 North Los Angeles St., Suite 7516, Los Angeles, CA 90012. On October 7, 2016. I served a copy of DEFENDANT ROBERT A. McDONALD’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT on each person or entity named below by enclosing a copy in an envelope addressed as shown and placing the envelope for collection and mailing on the date and at the place shown below following our ordinary office practices. I am readily familiar with the practice of this office for collection and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service in a sealed envelope with postage fully prepaid. Date of mailing: October 7, 2016. Place of mailing: Los Angeles, California. Person(s) and/or Entity(s) to Whom mailed: SEE ATTACHED SERVICE LIST I declare under penalty of perjury under the laws of the United States of America that the forgoing is true and correct. I declare that I am employed in the office of a member of the bar of this court at whose directions the service was made. Executed on: October 7, 2016, in Los Angeles, California. /s/ MARGARET BARCELA Case 2:14-cv-04861-JAK-FFM Document 61-5 Filed 10/07/16 Page 1 of 2 Page ID #:1282 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SERVICE LIST FREDRIC COLLINS 5319 E. Rosebay Street Long Beach, CA 90808 Case 2:14-cv-04861-JAK-FFM Document 61-5 Filed 10/07/16 Page 2 of 2 Page ID #:1283