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Hoover v. Wilkie

United States District Court, W.D. New York

January 9, 2020

EDDIE HOOVER, M.D., Plaintiff,
v.
ROBERT WILKIE, Secretary of the Department of Veterans Affairs, WILLIAM F. FEELEY, Director of Medical Center Veteran Affairs Western New York Healthcare Systems, and MIGUEL RAINSTEIN, M.D., Chief of Staff Veteran Affairs Western New York Healthcare Systems, Defendants.

          LAW OFFICE OF ANTHONY L. PENDERGRASS Attorneys for Plaintiff ANTHONY L. PENDERGRASS, of Counsel

          JAMES P. KENNEDY, JR. UNITED STATES ATTORNEY Attorney for Defendant MICHAEL S. CERRONE, and DANIEL BARRIE MOAR Assistant United States Attorneys, of Counsel

          DECISION AND ORDER

          LESLIE G. FOSCHIO UNITED STATES MAGISTRATE JUDGE

         JURISDICTION

         On December 14, 2018, the parties to this action consented pursuant to 28 U.S.C. § 636(c) to proceed before the undersigned. The matter is presently before the court for findings of fact and conclusions of law following a bench trial.

         BACKGROUND

         On August 31, 2011, Plaintiff Eddie Hoover, M.D. (“Plaintiff”), commenced this action alleging employment discrimination in connection with Plaintiff's employment with the Department of Veterans Affairs (“VA”), at the Buffalo VA Medical Center (“VAMC”), in Buffalo, New York. Plaintiff asserted five claims for relief against three named defendants including Robert Wilkie (“Wilkie”), then Secretary of the Department of Veterans Affairs (“the VA”), William F. Feeley, Director of Medical Center Veteran Affairs Western New York Healthcare Systems (“Director Feeley” or “Feeley”), and Miguel Rainstein, M.D., Chief of Staff (“COS”) Veteran Affairs Western New York Healthcare Systems (“Dr. Rainstein”) (together, “Defendants”). Plaintiff alleged against the VA, Director Feeley, and Dr. Rainstein claims for race-based discrimination and hostile work environment under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), (“First Claim”), Title VII retaliation (“Second Claim”), discrimination, hostile work environment, and retaliation under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (“ADEA”) (“Third Claim”), discrimination, hostile work environment, and retaliation under the Rehabilitation Act, 29 U.S.C. § 791 et seq. (“Rehabilitation Act”) (“Fourth Claim”), and due process violations pursuant to Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971) (“Bivens”) (“Fifth Claim”). In an Order filed October 16, 2012 (Dkt. 12), District Judge Richard J. Arcara adopted the undersigned's Report and Recommendation filed September 27, 2012 (Dkt. 11), granting Defendants' motion (Dkt. 5) seeking dismissal of several of the claims including the Title VII, ADEA and Rehabilitation Act claims as against Director Feeley and Dr. Rainstein, as well as the Bivens due process claim as against the VA. In an Order filed May 4, 2015 (Dkt. 45), Judge Arcara adopted the undersigned's Report and Recommendation filed March 30, 2015 (Dkt. 44), granting in part and denying in part Defendants' motion for summary judgment (Dkt. 27), thereby dismissing as against Director Feeley and Dr. Rainstein Plaintiff's Title VII race discrimination claim, ADEA age discrimination claim, Rehabilitation Act failure to accommodate claim, ADEA and Rehab Act retaliation claims, Title VII and Rehabilitation Act hostile work environment claims, and the Bivens due process claims. Left for trial were the Title VII retaliation claim, the ADEA hostile work environment claim, and the ADEA constructive discharge claim against the VA, the only remaining Defendant. The undersigned presided over a bench trial[1] held June 10 to June 18, 2019, at which testimony was provided by Plaintiff, Dr. Rainstein, Dr. Nader Nader (“Dr. Nader”), Kathryn Varkonda (“Varkonda”), and Theodora Gearhart (“Gearhart”). Entered into evidence were Defendant's Exhibits 1-43, 55 (Bates Nos. 9-35; 112-114, 139-40), 57 (Bates Nos. 113-23, 327-330, 337-39), 58 (Bates Nos. 365, 366-69, 441, 463-65, 488, 714-15, 723-24, 753-54), 59 (Bates Nos. 1814-1817), and 60 (Bates Nos. 1916, 1958, 1962, 1998, 2019, 2027-56, and 3072). Following the close of evidence, the undersigned reserved decision, ordered a trial transcript, and ordered the parties to submit proposed findings of fact and conclusions of law. Accordingly, on October 28, 2019, Defendant filed Defendant's Proposed Findings of Fact and Conclusions of Law (Dkt. 96). Despite several extensions of the deadline for Plaintiff to file post-trial submissions (Dkts. 94 (setting September 30, 2019 as deadline), and 95 (setting October 31, 2019 as deadline)), to date, Plaintiff has not any. Based on the following, Plaintiff has established no cause of action against Defendant VA as alleged in the Complaint which is DISMISSED with prejudice.

         FINDINGS OF FACT[2]

         Plaintiff Eddie Hoover, M.D. (“Plaintiff” or “Dr. Hoover”), commenced employment with the VA as Chief of Surgery at the Brooklyn VA Medical Center in 1980. Dkt. 88 at 55-57. In 1990, Plaintiff accepted a position with the State University of New York at Buffalo School of Medicine (“Medical School”), as Chairperson of the Surgery Department, which position included responsibilities at the Buffalo VA Medical Center (“Buffalo VA”), including general thoracic surgeries involving lungs, esophagus, pacemakers, and general surgery, although Plaintiff had by then ceased performing cardiac surgeries. Id. at 60-61. In 1996, Plaintiff, through the Medical School's appointment power, appointed himself Acting Chief of Surgery at the Buffalo VA. Id. at 79-82; Dkt. 89 at 148-49. In 2001, Plaintiff was released from his Medical School Chairperson of Surgery position. Dkt. 89 at 162-63.

         On July 1, 2005, Dr. Rainstein joined the Buffalo VA as Chief of Surgery, replacing Plaintiff in that position.[3] Dkt. 88 at 83; Dkt. 92 at 27. To make way for Dr. Rainstein, on June 26, 2005, Plaintiff was transferred to the position of Associate Chief of Staff (“ACOS”) for Patient Safety at Buffalo VA. Defendant's Exhs. 3 and 4; Dkt. 88 at 83, 86-87; Dkt. 89 at 148-49; Dkt. 91 at 6. In the new position Plaintiff briefly continued to perform surgeries until May 17, 2006, when he commenced working fulltime as ACOS for Patient Safety, an administrative position, and his privileges for surgery and patient treatment were removed at the Buffalo VA. Dkt. 88 at 83, 87, 89; Dkt. 89 at 149; Dkt. 93 at 33. Despite no longer performing surgeries or treating patients, Plaintiff's pay as ACOS for Patient Safety remained the same as when Plaintiff was Chief of Surgery. Dkt. 88 at 85. Plaintiff's privileges were instituted for internal medicine from May 6, 2010 to October 14, 2010, when Plaintiff was assigned to the Buffalo VA's Compensation and Pension Department (“C&P Department” or “Comp and Pen”), where Plaintiff conducted compensation and pension examinations (“C&P exams”).[4] Dkt. 93 at 33-34. Plaintiff remained assigned to the C&P Department until his retirement on October 14, 2010. Dkt. 89 at 76; Dkt. 93 at 33-34.

         Throughout his tenure at the Buffalo VA, Plaintiff received base pay or salary, [5]and was also eligible for “Performance Pay” which is akin to a bonus and earned upon meeting performance objectives established for each year. Dkt. 89 at 162. Plaintiff was also subject to periodic job performance reviews at which it was determined whether Plaintiff met the relevant performance objectives and the amount of Performance Pay earned. Dkt. 89 at 158-62. Plaintiff's job performance reviews routinely were more than satisfactory with Plaintiff earning the maximum amount of Performance Pay available until September 30, 2006, the end of Plaintiff's first full fiscal year as ACOS for Patient Safety, with Plaintiff receiving no ratings exceeding the “fully successful” ratings benchmark, and of the possible Performance Pay of $ 5, 000, earned only $ 1, 000. Defendant's Exhs. 5-6; Dkt. 89 at 154-55. On Plaintiff's next job performance review for the fiscal year ending September 30, 2007, of the possible $ 14, 000 Performance Pay, Plaintiff received $ 5, 500, with Plaintiff fully meeting one of two performance goals, but only partly meeting the other. Defendant's Exh. 7. Plaintiff does not dispute consistently failing in subsequent years to achieve performance review ratings higher than satisfactory. Dkt. 89 at 155-61.

         In the position of ACOS for Patient Safety, Plaintiff was responsible for following VA directives from the central VA office. Dkt. 91 at 8-9. Although Patient Safety was part of the clinical area for which Dr. Rainstein was responsible, Plaintiff did not then directly report to Dr. Rainstein. Id. at 9-12. Both Plaintiff and Dr. Rainstein were required to attend Patient Safety, and VA Ethics committee meetings, but Plaintiff often did not attend or would fall asleep at the meetings. Dkt. 92 at 41-43. Upon assuming the ACOS for Patient Safety position, Plaintiff was to lead or “chair” root cause analyses (“RCA”) investigations which are non-punitive investigations intended to improve quality of the VA system. Dkt. 91 at 93; Dkt. 93 at 54. Plaintiff, however, participated in only eight of the 63 RCA investigations occurring during Plaintiff's tenure as ACOS for Patient Safety, none of which Plaintiff chaired. Dkt. 93 at 54-54.

         As ACOS for Patient Safety, Plaintiff's office was located in the VA's Performance Management Department which, at all times relevant to this action, was headed by Kathryn Varkonda (“Varkonda”), Performance Manager, who observed Plaintiff on a daily basis. Dkt. 88 at 144; Dkt. 93 at 22. Although Plaintiff was scheduled to work from 8:00 A.M. to 4:30 P.M. each day, Plaintiff usually arrived at work at 10:00 A.M., spent his mornings drinking coffee and reading newspapers and magazines until 11:00 A.M. when Plaintiff typically took a nap, and left work at 1:30 P.M. Dkt. 91 at 29-30; Dkt. 93 at 38-41. While napping, Plaintiff sometimes slept in his chair, but at other times, Plaintiff would crawl under his desk and sleep in a fetal position. Dkt. 93 at 42, 89. When he slept, Plaintiff snored loud enough that several nurses in surrounding offices could hear. Id. at 42-43.

         As of June 4, 2009, one David West (“West”), was the Buffalo VA's Acting Medical Center Director, Dkt. 88 at 92-94, and Defendant Feeley was Deputy Undersecretary for the VA, located in Washington, D.C., but was scheduled to join the Buffalo VA as Medical Center Director, Dkt. 89 at 164, and did so on June 21, 2009. Dkt. 93 at 31. In a letter to Feeley dated June 4, 2009 (“June 4, 2009 Letter”), Plaintiff, then ACOS for Patient Safety, alleged several African-American physicians at the Buffalo VA, including Plaintiff's then-wife Dr. Gwendolyn Cole-Hoover (“Dr. Cole-Hoover”), and Dr. Mark Awolesi (“Dr. Awolesi”), had been subjected to race-based discrimination in connection with their employment at the Buffalo VA. Defendant's Exh. 10. In his June 4, 2009 Letter, Plaintiff explained he was writing to Feeley rather than to West because the issues of which Plaintiff was complaining might need to be addressed before Feeley's arrival and “were a direct consequence of Mr. D. West's management style, and people were just trying to get/stay on his good side, because it looked like he might become our permanent M[edical]C[enter]D[irector].” Id. at 1. According to Plaintiff, when Dr. Cole-Hoover complained to her supervisors about harassment by a co-worker, she was wrongly accused of falsifying and inadequately charting patients. Id. Plaintiff further maintained Dr. Awolesi was wrongly accused of patient abuse, attributing the falsehood to one Dr. Carlos Li (“Dr. Li”), who Plaintiff asserted was directly responsible for causing the deaths of three patients (“mortality cases”), for which Dr. Li was never disciplined. Id. at 2-3. Plaintiff testified his knowledge regarding the three mortality cases came from other VA employees, “personnel in the operating room and intensive care unit, ” whose names he could not remember but who reported their concerns more than two years after the deaths, Dkt. 88 at 115-16, yet Plaintiff did not review at least two of the deceased patients' charts until after sending the June 4, 2009 Letter to Feeley, id. at 118-19, 137; Dkt. 89 at 167-68, which failure Plaintiff characterized as an “oversight, ” Dkt. 88 at 139, of which Dr. Rainstein was not then aware. Dkt. 92 at 36, 71-72. Also, as of June 4, 2009, Plaintiff was aware at least one of the three mortality cases had been subjected to independent expert review (“outside review”), at the VA cardiac surgery cooperative located at the University of Colorado in Denver, where further investigations were conducted of mortalities that were accompanied by specific concerns. Dkt. 88 at 102-04, 140. Within one week of sending the June 4, 2009 Letter, [6] Feeley responded by e-mail to Plaintiff, West, and Dr. Rainstein (Defendant's Exh. 11) (“Feeley's Response”), advising Dr. Rainstein would contact Plaintiff regarding the specifics of the mortality cases and that Feeley would further review the matter upon his impending arrival at the Buffalo VA. By e-mail dated June 9, 2009 (Defendant's Exh. 12) (“June 9, 2009 e-mail”), Feeley forwarded Plaintiff's June 4, 2009 Letter to West, Dr. Rainstein, Stephen L. Lemons, Ph.D. (“Dr. Lemons”), and Dr. Lawrence Flesh (“Dr. Flesh”), [7] asserting the quality of care concerns raised in the letter needed outside review by physician expertise.

         On the morning of June 15, 2009, Dr. Rainstein met with Plaintiff with Varkonda also present to discuss the three mortality cases. Defendant's Exh. 13; Dkt. 89 at 174-77; Dkt. 92 at 37-40. Dr. Rainstein requested Plaintiff provide certain identifying information for each of the three mortality cases, including the last names and the last four digits of the social security number for each of the three deceased patients (“identifying information”), stressing such identifying information was required for Dr. Rainstein to forward the relevant medical records to Dr. Frederick Grover who was in charge of the outside review. Id. Dr. Rainstein also advised that every mortality case since 2007 involving Dr. Li had already been reviewed at the Buffalo VA's Morbidity and Mortality committee's meeting, a PEER Review committee meeting, and an outside review, and also investigated by the VA's Inspector General (“IG”), id.; Plaintiff was not involved in any of these previous reviews. Dkt. 88 at 114-15. Despite being subjected to four levels of review, no concerns were noted on any of Dr. Li's mortality cases but, based on the concerns Plaintiff raised in the June 4, 2009 Letter, Dr. Rainstein needed the three mortality cases identified for further review by Frederick Grover, M.D. (“Dr. Grover”), an outside review cardiothoracic surgeon. Defendant's Exh. 13; Dkt. 89 at 174-77; Dkt. 92 at 37-40. Dr. Rainstein again stressed the need for the identifying information in a follow-up e-mail to Plaintiff on June 15, 2009, Defendant's Exh. 13 (“June 15, 2009 e-mail”), memorializing the morning's meeting with Plaintiff. Plaintiff admits attending the June 15, 2009 meeting at which Dr. Rainstein requested the identifying information, and receiving the June 15, 2009 e-mail, Dkt. 89 at 177-79, and concedes he understood Dr. Rainstein requested only the identifying information for the mortality cases to permit Dr. Grover to review them, and did not intend for Plaintiff to perform a “local” review, Dkt. 88 at 103; Dkt. 89 at 185, yet Plaintiff did not immediately provide the requested identifying information nor request additional time to respond. Dkt. 89 at 179-80, 186. Plaintiff maintains he intended to perform an “internal review” of the mortality cases despite none being requested by Dr. Rainstein, but such review was delayed by Plaintiff's work-load which then involved conducting orientation and scheduling summer medical residents and interns. Dkt. 88 at 106, 112. On June 17, 2009, with the identifying information for the three mortality cases still not received, Dr. Rainstein again e-mailed Plaintiff, requesting the identifying information by close of business on June 18, 2009, stressing his concern that the matter needed to be investigated by Dr. Grover, Defendant's Exh. 14; Dkt. 88 at 117-18; Dkt. 89 at 177, but Plaintiff maintains his work-load continued to prevent Plaintiff from providing the information at that time. Dkt. 88 at 118-20.

         In a Memorandum to Plaintiff dated June 23, 2009, Defendant's Exh. 15 (“June 23, 2009 Memo”), and copied to Director Feeley who assumed his position as Buffalo VA Director on June 21, 2009, Dkt. 92 at 46; Dkt. 93 at 31, Dr. Rainstein again reiterated the critical need for the identifying information, requesting Plaintiff provide it by 3:00 P.M. on June 24, 2009, and directed Plaintiff to contact Dr. Rainstein at his telephone extension if he had any questions. Dkt. 89 at 187-89. Despite admitting receiving the June 23, 2009 Memo when it was sent on June 23, 2009, Dkt. 89 at 179, Plaintiff again failed to provide the requested identifying information by the specified deadline, nor did Plaintiff contact Dr. Rainstein, by telephone or otherwise, to advise he was unable to timely provide such information or to ask for additional time. Dkt. 89 at 179-80, 189-90. In a June 24, 2009 e-mail to Dr. Rainstein, Defendant's Exh. 16 (“June 24, 2009 e-mail”), Plaintiff did not provide the requested identifying information; rather, Plaintiff asserted he had been “tied up” with an RCA and orientation for incoming residents, and complained about Dr. Rainstein's correspondence requesting the information which correspondence Plaintiff referred to as “nasty” in its tone, adding his “full report” of the mortality cases “will require some time.” Dr. Rainstein replied by email that he did not intend that his June 23, 2009 Memo to be perceived as “nasty, ” asserting he was not seeking a full report on the mortality cases but expected the identifying information by 3:00 P.M. that day. Although Plaintiff concedes he understood a full report of the mortality cases was not requested by Dr. Rainstein, Plaintiff again failed to timely provide the requested identifying information to Dr. Rainstein. Dkt. 89 at 191-94. Based on Plaintiff's continued failure to provide the identifying information as Dr. Rainstein repeatedly directed, on June 29, 2009, Dr. Rainstein proposed admonishing Plaintiff for failure to comply with a direct order. Defendant's Exh. 17 (“proposed admonishment”); Dkt. 89 at 194-95; Dkt. 92 at 58-61. On July 2, 2009, Plaintiff delivered the requested identifying information to Varkonda who forwarded the material to Dr. Rainstein, who memorialized its receipt in an e-mail to Plaintiff. Defendant's Exh. 18; Dkt. 92 at 68. On July 6, 2009, in an unsolicited e-mail to Dr. Rainstein, Defendant's Exh. 19 (“July 6, 2009 e-mail”), Plaintiff advised that upon his own further review of the mortality cases, Plaintiff did not see any need to forward the cases to Dr. Grover but deferred to Dr. Rainstein's judgment on the matter. By letter dated July 7, 2009 (“Letter of Admonishment”), Director Feeley approved Dr. Rainstein's proposed admonishment of Plaintiff, advising the Letter of Admonishment would be placed in Plaintiff's personnel folder for up to two years and could be used in determining an appropriate penalty in the event Plaintiff was involved in further infractions. Defendant's Exh. 20; Dkt. 91 at 80; Dkt. 92 at 61. Plaintiff never exercised his right to administratively grieve the admonishment. Dkt. 89 at 195; Dkt. 92 at 62. When Dr. Grover eventually reviewed the three mortality cases, no issue of concern was found in any of the three cases. Dkt. 92 at 72.

         On July 19, 2009, after replacing West, Director Feeley made some changes to the lines of reporting, including having Plaintiff directly report to Dr. Rainstein. Dkt. 91 at 48-55. Out of concern that veterans were not timely receiving their benefits, in September 2009, the VA General Shinseki issued a directive that C&P exams be completed within 30 days. Dkt. 91 at 14-17. At that time, C&P exams at the Buffalo VA took several physicians assigned to the C&P Department an average of 44 days to complete, and Dr. Feeley approached Dr. Rainstein about the back-log. Dkt. 91 at 14-18. Dr. Rainstein concurred with Varkonda's complaint that Plaintiff, as ACOS for Patient Safety, produced little meaningful work product, and had a poor work ethic. Dkt. 91 at 26-30; Dkt. 92 at 83. According to Dr. Rainstein, based on Plaintiff's limited work production and failure to regularly attend patient safety meetings Dr. Rainstein believed Plaintiff was not needed in patient safety where two nurses handled most of the work. Id. at 17-18. In September 2009, Plaintiff was initially assigned to assist the other C&P Department physicians with performing C&P exams two days per week to help reduce the back-log.[8] Dkt. 91 at 19-20, 112, 117.

         The part-time assignment to C&P exams did not result in any salary reduction to Plaintiff, Dkt. 91 at 17, and Dr. Rainstein testified Plaintiff was selected because the Patient Safety Department responsibilities were sufficiently handled by Varkonda and two nurses, including Robin Jordan (“Jordan”), and Patricia Pasieka (“Pasieka”), id. at 21-22, and Dr. Rainstein understood based on reports by Varkonda that Plaintiff was not performing his duties as ACOS in Patient Safety, id. at 28-30, although Dr. Rainstein admitted Plaintiff's job performance reviews from the relevant period of time indicate only that Plaintiff's job performance was fully satisfactory with no accompanying narrative indicating any deficiencies in Plaintiff's job performance. Id. at 42-45. Plaintiff continued to split his time between performing C&P exams in the C&P Department and his ACOS position in the Patient Safety Department. Id. at 45-46.

         Plaintiff protested performing C&P exams, considered by Plaintiff “a clerical function” for which Plaintiff, based on his skills set, was overqualified. Dkt. 88 at 148-49. Plaintiff further maintains that at other VA facilities, C&P exams are performed by retired physicians working on a contract basis two to three days per week. Id. at 153-54. While Plaintiff was assigned to C&P exams two days per week, Plaintiff often applied to take personal leave on the days he was scheduled to perform C&P exams, instructing the C&P Department secretaries to cancel the scheduled C&P exams, only to then cancel his personal leave and report to work as ACOS for Patient Safety on such days, but performing no work. Dkt. 92 at 86.

         By letter to Dr. Rainstein dated December 24, 2009 (Defendant's Exh. 23) (“December 24, 2009 Letter”), Plaintiff requested he be relieved of performing C&P exams and return full-time to his Patient Safety duties. Dkt. 90 at 13. By e-mail to Plaintiff dated December 28, 2009 (Defendant's Exh. 24) (“December 28, 2009 e-mail”), Dr. Rainstein denied the request, advising one Arleen Haas (“Haas”), in the C&P Department would continue to assign Plaintiff to perform C&P exams two days per week, Dkt. 90 at 13, which decision denying Plaintiff's request to return full-time to Patient Safety Plaintiff then appealed by letter to Director Feeley dated December 30, 2009 (Defendant's Exh. 25) (“December 30, 2009 Letter”). Dkt. 90 at 13-14. According to Plaintiff, unlike other patients in the Buffalo VA, the C&P exam patients were not sick, and Plaintiff believed his responsibilities as ACOS for Patient Safety, which did not include direct patient contact and treatment but preserving health quality, were more important to the Buffalo VA. Id. at 14-15. In a January 4, 2010 Memorandum to Plaintiff (Defendant's Exh. 26) (“January 4, 2010 Memo”), Director Feeley concurred with Dr. Rainstein's decision assigning Plaintiff to perform C&P exams at a minimum of two days per week. Dkt. 90 at 15-16.

         Plaintiff, as a VA employee, was occasionally granted an authorized absence to attend medical conferences proved beneficial for improving patient care. Dkt. 92 at 101-02. Such authorized absence, which does not require the use of the physician's personal leave time, must be approved by the physician's supervisor. Id. at 102. If a physician's request for authorized absence is denied, the physician may still attend the medical conference, but must use personal leave time to do so. Dkt. 90 at 31-32; Dkt. 92 at 107-08. A print-out of the VA's record of Plaintiff's leave requests for authorized absences to attend various medical association conferences and meetings for the period January 20, 2009 through January 25, 2010 (“Plaintiff's VA leave record”), [9]during which Dr. Rainstein was Plaintiff's supervisor and charged with approving or disapproving submitted leave requests, Dkt. 92 at 103-07, shows Plaintiff's requests for authorized absences were approved for April 2-3, 2009 (Society of Black Academic Surgeons meeting in Seattle, Washington); July 27-29, 2009 (National Medical Association meeting in Las Vegas, Nevada); October 12-15, 2009 (American College of Surgeons meeting in Chicago, Illinois), and January 25, 2010 (Society of Thoracic Surgeons in Fort Lauderdale, Florida), while two such requests were denied including for Jan. 26-27, 2009 (Society of Thoracic Surgeons in San Francisco, California), and May 1, 2009 (delivery of graduation speech at Prairie View University in Houston, Texas). Plaintiff's VA leave record further establishes that throughout the same period, Plaintiff's various requests for annual leave (totaling 22 days), as well as for sick leave (totaling 9 days) were approved, while no such requests were denied. In contrast, Plaintiff testified at the trial that during this same period of time, he was denied authorized leave to attend four meetings. Dkt. 89 at 103-04. During cross-examination at trial, Dr. Rainstein explained that although his practice had been to approve most requests for authorized leave to attend ...


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