James R. Metcalfe II, the director of the Western New York National Cemetery in Pembroke, N.Y., is seeking $15 million from the VA in a civil suit, accusing the agency and its leaders of discrimination and retaliation that stripped away many of his responsibilities.

James R. Metcalfe II, the director of the Western New York National Cemetery in Pembroke, N.Y., is seeking $15 million from the VA in a civil suit, accusing the agency and its leaders of discrimination and retaliation that stripped away many of his responsibilities. (Western New York National Cemetery/Facebook)

WASHINGTON (Tribune News Service) — His bosses held his Native American heritage against him and said derogatory things about Native Americans in his presence.

They forced him to work in-person during the height of the COVID-19 pandemic even though he has a pre-existing condition that made the virus especially dangerous to him — and he ended up hospitalized with COVID soon after he returned to work.

And they disinvited him to the dedication ceremony of the veterans cemetery he led.

Those are among the many allegations that James R. Metcalfe II, the director of the Western New York National Cemetery in Pembroke, made in a federal lawsuit filed in Buffalo last week against the U.S. Department of Veterans Affairs and his superiors at the agency. Metcalfe is seeking $15 million from the agency in the civil suit, accusing the VA and its leaders of discrimination and retaliation that stripped away many of his responsibilities.

"I had a stellar reputation," Metcalfe, 58, said in a telephone interview on Friday. "And that meant so much to me because my career was everything. Between my 11 years in the military that ended because of injury and 23 years at the VA, I've always served my country to the best. It's been my mission: giving back to the veterans and to America, the American taxpayers. And they took that all away from me."

A spokesman for the VA's National Cemetery Administration, Les' A. Melnyk, said the agency can't comment on ongoing litigation.

The 60-page complaint, filed by attorney and former congressional candidate Nate McMurray, dwells only briefly on Metcalfe's role in fighting for highway safety changes at the cemetery in early 2020. The Buffalo News reported last February that two veterans died in a crash at the intersection that Metcalfe wanted fixed, and that Metcalfe and Peter Rizzo, another VA employee at the time, alleged they had been retaliated against for their safety crusade.

But Metcalfe's lawsuit indicates that he faced much more than retaliation for his safety efforts. He charges that VA officials discriminated against him on the basis of his ethnicity and his disability. And he says they retaliated against him in response to the unfounded allegation that he had leaked details about the cemetery's development to Congress and the media.

Discrimination alleged

Metcalfe, a member of the Seneca Nation of Indians, returned to Western New York to run the new cemetery in Pembroke. And according to the lawsuit, he did so late in a stellar career.

Managing veterans cemeteries across the country, Metcalfe "earned a superlative employment record, consistently achieving 'outstanding' annual performance ratings — the highest achievement possible on VA's 5-point performance rating scale," the complaint said. "Throughout his first 19 years of employment at VA, plaintiff had never been suspected or accused of wrongdoing or misconduct of any kind."

That began to change, Metcalfe said in the interview, after he revealed his Native American heritage during a September 2019 meeting. The new cemetery was to be built on land once occupied by the Tonawanda Seneca Nation, so by law, a representative of the Nation had to be present at the site to observe excavation work. Tribal leaders had refused to cooperate, though, so Metcalfe met with the tribe's chief, Roger Hill, and resolved the disagreement.

Metcalfe's reward? His superiors "began perpetrating a now-years-long campaign of discrimination and harassment that has annihilated plaintiff's reputation, career and psyche," the lawsuit charges.

About 5,000 Native American artifacts were found on the cemetery property, but the lawsuit says VA executives saw them as "a burden" rather than a cultural asset.

Meanwhile, in Metcalfe's presence, federal and local officials — without any evidence — blamed the Tonawanda Seneca Nation for the theft of a $65,000 excavator as well as vandalism on the cemetery property.

"This atmosphere of presumed guilt, aggression and bias towards the Tonawanda Nation and Native Americas generally caused plaintiff great stress and anxiety as he worked to dispel false and harmful allegations," the lawsuit says.

Trouble amid COVID

Metcalfe pressed for highway safety improvements at the intersection of Route 77 and Indian Falls Road in March 2020, just as the COVID-19 pandemic swept the nation.

The VA cemetery director had good reason to fear the virus. In addition to the injuries he endured while serving in the Army in Bosnia in the 1990s — which left him with a paralyzed left foot and ankle — Metcalfe suffers from leukopenia, a condition that leaves him with an abnormally low number of white blood cells and therefore a reduced ability to resist infection.

Metcalfe told the VA executive who figures most prominently in the lawsuit — Willie Clyde Marsh, executive director of the National Cemetery Administration's North Atlantic District — about that condition on March 27, 2020, but the VA boss denied Metcalfe's request to work virtually. A superior reversed Marsh's ruling five days later, but that reversal was temporary. With Marsh unwilling to grant further extensions, Metcalfe went to work in person at the cemetery property in early May 2020.

Then on May 10, Metcalfe started feeling ill. His physician ordered him to go to the emergency room at Olean General Hospital three days later. Diagnosed with COVID, "plaintiff underwent 20 days of intensive treatment to save his life," according to the lawsuit.

Metcalfe blames it all on Marsh.

"Without qualification or care, and in violation of VA's own direction, Marsh repeatedly denied plaintiff's reasonable accommodation requests and in doing so illustrated total disregard for plaintiff's life — actions that Marsh undertook from the comfort of his own home while enjoying the safety and security of VA's maximum telework posture," the lawsuit said.

Leaks alleged

One suspicion underlies all of the VA's actions against Metcalf, according to his lawsuit.

Time and again, VA officials suspect Metcalfe of leaking information about the cemetery to Congress or the media.

Those concerns first appeared in November 2019, after Charles E. Schumer, the Senate minority leader at the time, wrote to the VA to express concerns about funding for the Western New York cemetery.

Schumer, the New York Democrat who pressed for a decade to get the cemetery built, merely echoed concerns that had been raised at a public meeting a month earlier. But Randy C. Reeves, then the undersecretary of memorial affairs at the VA, visited the cemetery site that December to order Metcalfe to not leak any more inside information to Congress or to the public — even though Metcalfe had never done that, the lawsuit said.

Then in November 2020, Marsh issued Metcalfe an "admonishment." Marsh accused Metcalfe of two acts deserving punishment, saying he gave a VA health care spokesperson permission to post photos of the cemetery's consecration ceremony on Facebook, and he replied to an email from a Batavia Daily News reporter without permission.

But according to the lawsuit, Marsh himself nodded at the suggestion that the Facebook photos be posted, and Metcalfe never responded to the Batavia Daily News reporter, who instead based his story on information provided by a local veterans advocate.

Shortly thereafter, Marsh gave Metcalfe a harsher-than-expected performance review and falsely accused him of leaking information to The Buffalo News.

A day after Marsh made that accusation, Melissa S. Decker, Reeves' special assistant, told Metcalfe he would not be invited to the Nov. 30 dedication ceremony for the cemetery he led.

Decker blamed the move on the state's COVID-19 capacity limits for such events at the time — but another VA official invited the director of a veterans cemetery near Pittsburgh to the event in Pembroke.

Disinvited, Metcalfe showed up anyway and stood in the back and watched as Reeves, the top official overseeing veterans cemeteries at the time, delivered a speech.

"Reeves did not mention plaintiff's name in his speech, even though Reeves consistently mentions cemetery directors by name in the speeches he delivers at national cemetery dedication ceremonies," the lawsuit alleges.

(c)2023 The Buffalo News (Buffalo, N.Y.)

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