John D. Morgan, Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionSep 14, 2009
0120083378 (E.E.O.C. Sep. 14, 2009)

0120083378

09-14-2009

John D. Morgan, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.


John D. Morgan,

Complainant,

v.

Eric K. Shinseki,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 0120083378

Hearing No. 530-2006-00133X

Agency No. 2004-0613-2005103774

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's

appeal from the agency's October 3, 2007, final order concerning his equal

employment opportunity (EEO) complaint alleging employment discrimination

in violation of Title VII of the Civil Rights Act of 1964 (Title VII),

as amended, 42 U.S.C. � 2000e et seq., Section 501 of the Rehabilitation

Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.,

and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,

29 U.S.C. � 621 et seq.

Complainant alleged that the agency discriminated against him on the bases

of sex (male), disability (mild lymphoma), age (68), and in reprisal for

prior EEO activity when he was harassed and subjected to a hostile work

environment because of a proposed reorganization.

At the time of these events, complainant, a medical doctor, was the

Associate Chief of Staff-Ambulatory Care at the agency's Martinsburg,

West Virginia Medical Center. He identified six incidents to support his

claim of harassment, and the agency explained its reasons, as follows:

1. In June 2004, complainant's title was changed to the Associate Chief

of Staff Ambulatory-Primary Care without any change in his duties.

The agency stated that the revised title reflected his duties to a

greater extent.

2. In March 2005, his supervisor called him at home while he was

recuperating and told him he could retire any day. The agency explained

that she called to inform complainant of a change in policy regarding

retirement options.

3. On August 3, 2005, he was directed to cancel leave because of a visit

from the Joint Committee on Accreditation; alternatively, his manager

stated he could resign his administrative duties and take his leave;

complainant cancelled his leave. The agency asserted that the review

by the Committee was a very important event for which the administrative

manager must be in attendance and that it had offered him an alternative.

4. On August 23, 2005, management proposed changes to the Community-Based

Outpatient Clinics, and a nurse was assigned to report to someone else.

The agency stated that these changes, to which complainant objected,

did not change his duties or terms and conditions of his employment and

were in the best interest of the agency.

5. On September 15, 2005, he was asked to report to his supervisor's

office, but she was unable to meet with him and asked that he return in

30 minutes, which he resented. He did so, and she criticized about

"trivial matters." The supervisor stated that complainant acted

inappropriately with the Committee, a matter she found very important.

6. On October 17, 2005, he was directed to report to his supervisor's

office, and she kept him waiting for 15-20 minutes. The supervisor

explained that she was busy and did not find his wait of 10 minutes to

be a hardship.

Following an investigation, complainant requested a hearing before an EEOC

Administrative Judge (AJ). On March 9, 2007, the agency filed a motion

for a decision without a hearing. Complainant had 15 days to respond,

but he did not respond until July 13, 2007. On September 26, 2007, the

AJ granted the agency's motion and issued a decision without a hearing,

finding that the agency did not discriminate against complainant.

The AJ found that complainant failed to show that any of the agency's

actions were because of his alleged bases and that the individual

incidents, taken in totality, did not show a hostile work environment

based on discriminatory considerations. In addition, the AJ denied

complainant's attempt to add matters that had occurred a year after the

events at issue in the complaint at bar, finding that the subsequent

matters should continue to be processed as a separate complaint, with

matters of the instant complaint considered as background.

The standard of review in rendering this appellate decision is de novo,

i.e., the Commission will examine the record and review the documents,

statements, and testimony of record, including any timely and relevant

submissions of the parties, and issue its decision based on the

Commission's own assessment of the record and its interpretation of

the law. See 29 C.F.R. � 1614.405(a); EEOC Management Directive 110,

Chapter 9, � VI.A. (November 9, 1999).

Initially, we consider whether the AJ properly issued a decision

without a hearing on this record. The Commission's regulations allow

an AJ to issue a decision without a hearing when s/he finds that there

are no genuine issues of material fact. 29 C.F.R. � 1614.109(g).

This regulation is patterned after the summary judgment procedure in

the Federal Rules of Civil Procedure, Rule 56, and the U.S. Supreme

Court has held that summary judgment is appropriate where a court

determines that, given the substantive legal and evidentiary standards

that apply to the case, there exists no genuine issue of material fact.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The AJ may

properly issue a decision without a hearing only upon a determination

that the record has been adequately developed for summary disposition.

See Petty v. Department of Defense, EEOC Appeal No. 0120024206 (July

11, 2003). In the instant case, the AJ determined that complainant had

adduced no evidence to support an inference of unlawful discrimination;

that is, that there existed no genuine issue of material fact warranting

a hearing. We concur in the AJ's assessment.

Harassment. It is well-settled that harassment based on an

individual's protected status is unlawful, if it is sufficiently

patterned or pervasive; usually, however, a single incident or a group

of isolated incidents will not be regarded as discriminatory harassment.

Frye v. Department of Labor, EEOC Request No. 05950152 (February 8, 1996);

Backo v. United States Postal Service, EEOC Request No. 05960227 (June 10,

1996); see also Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986).

In this matter, while complainant is a member of protected classes based

on his age, disability, sex, and prior EEO activity, he has not shown

that the agency's actions were based on animus or taken in reprisal.

Further, we find that not all of the incidents did not occur as alleged

and were not sufficiently severe or pervasive to rise to the level of

illegal harassment. See Cobb v. Department of the Treasury, EEOC Request

No. 05970077 (March 13, 1997), citing Harris v. Forklift Systems, Inc.,

510 U.S. 17, 21 (1993) (harassment is actionable if it is sufficiently

severe or pervasive to alter the conditions of the complainant's

employment). Moreover, complainant has not shown that the alleged

harassment affected a term or condition of employment and/or had the

purpose or effect of unreasonably interfering with the work environment

and/or creating an intimidating, hostile, or offensive work environment.1

See Humphrey v. United States Postal Service, EEOC Appeal No. 01965238

(October 16, 1998); 29 C.F.R. � 1604.11. Although complainant's claims

do not establish unlawful harassment, they are properly considered as

claims of disparate treatment.

Disparate treatment claims are analyzed following the three-step scheme

announced in McDonnell Douglas Corporation v. Green, 411 U.S. 792

(1973). Once the complainant has established a prima facie case or we

assume that he did so, the agency is required to articulate legitimate,

nondiscriminatory reasons for its actions. To ultimately prevail,

complainant must demonstrate, by a preponderance of the evidence, that

the agency's reason(s) for its action were a pretext for discrimination,

i.e., that the agency's reasons were not its real reasons and that it

acted on the basis of discriminatory animus. See Texas Department of

Community Affairs v. Burdine, 450 U.S. 248, 253 (1981); St. Mary's Honor

Center v. Hicks, 509 U.S. 502 (1993). Even assuming that complainant

established a prima facie case of discrimination, we find that the agency

has articulated legitimate, non-discriminatory reasons for its actions

and that complainant has failed to demonstrate pretext.

CONCLUSION

After a review of the record in its entirety and consideration of

all statements submitted on appeal, including those not specifically

addressed, it is the decision of the Equal Employment Opportunity

Commission to affirm the agency's final decision, because the AJ's

issuance of a decision without a hearing was appropriate, and the

preponderance of the evidence of record does not establish that

discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

The Commission may, in its discretion, reconsider the decision in this

case if the complainant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. The appellate decision involved a clearly erroneous interpretation

of material fact or law; or

2. The appellate decision will have a substantial impact on the

policies, practices, or operations of the agency.

Requests to reconsider, with supporting statement or brief, must be filed

with the Office of Federal Operations (OFO) within thirty (30) calendar

days of receipt of this decision or within twenty (20) calendar days of

receipt of another party's timely request for reconsideration. See 29

C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for

29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests

and arguments must be submitted to the Director, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 77960,

Washington, DC 20013. In the absence of a legible postmark, the request

to reconsider shall be deemed timely filed if it is received by mail

within five days of the expiration of the applicable filing period.

See 29 C.F.R. � 1614.604. The request or opposition must also include

proof of service on the other party.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request. Any supporting documentation

must be submitted with your request for reconsideration. The Commission

will consider requests for reconsideration filed after the deadline only

in very limited circumstances. See 29 C.F.R. � 1614.604(c).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0408)

You have the right to file a civil action in an appropriate United States

District Court within ninety (90) calendar days from the date that you

receive this decision. If you file a civil action, you must name as the

defendant in the complaint the person who is the official agency head

or department head, identifying that person by his or her full name and

official title. Failure to do so may result in the dismissal of your

case in court. "Agency" or "department" means the national organization,

and not the local office, facility or department in which you work. If you

file a request to reconsider and also file a civil action, filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1008)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request from the Court

that the Court appoint an attorney to represent you and that the Court

also permit you to file the action without payment of fees, costs,

or other security. See Title VII of the Civil Rights Act of 1964, as

amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as

amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request

is within the sole discretion of the Court. Filing a request for an

attorney with the Court does not extend your time in which to file

a civil action. Both the request and the civil action must be filed

within the time limits as stated in the paragraph above ("Right to File

A Civil Action").

FOR THE COMMISSION:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

September 14, 2009

Date

1 See Enforcement Guidance: Vicarious Liability for Unlawful Harassment

by Supervisors, EEOC Notice No. 915.002 (June 18, 1999).

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0120083378

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120083378