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