01201300466
05-15-2015
Charles S. Brantley, Complainant, v. Penny Pritzker, Secretary, Department of Commerce (Patent and Trademark Office), Agency.
Reference #: 0120130466
Charles S. Brantley
7548 Lindberg Dr.
Alexandria, VA 22306
Reference #: 0120130466
Bismarck Myrick, Director
Office of Equal Employment Opportunity and Diversity
US Patent & Trademark Office
600 Dulany Street
Madison East, Suite 7A85
Alexandria, VA 22314-1450
Charles S. Brantley,
Complainant,
v.
Penny Pritzker,
Secretary,
Department of Commerce
(Patent and Trademark Office),
Agency.
Appeal No. 0120130466
Hearing No. 570-2011-00003X
Agency No. 10-56-20
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's March 27, 2012 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.
BACKGROUND
During the period at issue, Complainant worked as an Attorney Advisor at the Agency's Office of Petitions in Alexandria, Virginia.
On December 11, 2007, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against him on the basis of reprisal for prior EEO activity when:
on October 28, 2009, he received a performance appraisal rating of "Commendable" for Fiscal Year 2009.
After an investigation, Complainant was provided a copy of the investigative file, and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for a Decision Without a Hearing. On January 31, 2012, the AJ issued a decision by summary judgment in favor of the Agency.
In finding no discrimination by summary judgment, the AJ found that the record developed during the investigation established the following undisputed facts. Complainant alleged that in 2002, the majority of attorneys in the Office of Petitions filed two memoranda with Human Resources (HR) alleging misconduct by a Supervisory Petition Examiner which resulted in an HR investigation. Complainant stated that he did not sign either memorandum. The record reflects during the relevant period, the Supervisory Petition Examiner supervised the paralegals, and was not in Complainant's chain of command.
Further, Complainant alleged that on an unspecific date, management adopted objective production plans for employees of the Office of Petitions and Patent Cooperation Treaty (PCT). Complainant stated that the Supervisory Petition Examiner created this new production plan and made it more difficult for Petitions Attorneys because of the 2002 petition. Specifically, Complainant alleged that the plan was more difficult for Petitions Attorneys than for PCT Attorneys. The production plan was negotiated with the union. Complainant had filed numerous previous EEO complaints involving the implementation of this new production plan which have included appeals to the Commission.
The AJ noted that the production plan was used for evaluations for fiscal years 2007, 2008 and 2009. For his fiscal year 2009 evaluation, Complainant received a rating of "Fully Successful" for the production element of his evaluation. Complainant also received a rating of "Outstanding" on all of the other elements of his evaluation, resulting in an overall rating of "Commendable."
The AJ noted that according to the Director of the Office of Petitions stated that during the relevant period he was Complainant's supervisor. The former supervisor stated that he gave Complainant his Fiscal Year 2009 performance appraisal rating of "Commendable" for the Fiscal Year 2009. Specifically, the former supervisor stated that Complainant received "Outstanding" in all of the elements except "Production" in which he received "Fully Successful." The former supervisor stated that "the 'Production' element is very straightforward and objective - it is set by a formula, and I did not exercise any discretion in this portion of the rating. The other three portions of the performance evaluation are more subjective, and the Complainant received 'Outstanding' in those three elements."
Further, the former supervisor stated that he used a written report for the Production element of Complainant's evaluation. The Director stated that Complainant "received a 'Fully Successful' because his production percentage was between 95% and 104%, the 'fully successful' rating as specified in the performance appraisal plan."
The Director of the Office of PCT Legal Administration stated that he was the approving official for Complainant's Fiscal Year 2009 performance appraisal. The Director stated that Complainant was rated "Fully Successful" in the element on productivity because his percentage score was in the 95-104% range. The Complainant received a 'Commendable' rating overall because his total rating score was in the commendable range. He received element ratings of outstanding in the other elements in his performance plan. I am aware that the Complainant has previously filed EEO [complaints], I believe beginning around 2007. There was absolutely nothing retaliatory about the Complainant's performance evaluation."
Further, the Director stated that the subject performance plan "came out about 5 years ago, and this was done at the request of the Office of Petitions' Attorneys because they wanted a more objective plan. We presented the numbers in the plans to the Patient Office Professional Association (the employee's union), negotiated the impact and implementation of the new plan, and made certain changes to the values in response to union concerns."
Based on these facts, the AJ concluded that even if Complainant had established a prima facie case of reprisal discrimination, the responsible management officials articulated legitimate, non-discriminatory reasons for its actions. The AJ then determined that Complainant failed to prove, by a preponderance of the evidence, that these articulated reasons were a pretext designed to mask the true retaliatory motivation.
The Agency fully implemented the AJ's decision in its final order. The instant appeal followed.
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. 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). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case.
On appeal, Complainant argues that the AJ erred in issuing summary judgment because there are material facts at issue. In brief, Complainant's main argument is that a hearing is necessary to resolve whether or not management took affirmative steps to use a retaliatory production plan to give him a "Commendable" rating for the production element of his performance appraisal plan.
The AJ's findings of fact are supported by the substantial evidence in the record and that the AJ's decision properly summarized the relevant facts and referenced the appropriate regulations, policies, and laws. The undisputed facts fully support the AJ's determination that the responsible management officials clearly articulated legitimate, non-discriminatory reasons for its actions. After careful review of the record, as well as the arguments presented on appeal, we conclude that Complainant failed to prove, by a preponderance of the evidence, that these proffered reasons were a pretext designed to mask discrimination on any basis alleged.
The Agency's final order implementing the AJ's decision without a hearing, finding no discrimination, is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision was received within five (5) calendar days after it was mailed. I certify that this decision was mailed to the following recipients on the date below:
Charles S. Brantley
7548 Lindberg Dr.
Alexandria, VA 22306
Bismarck Myrick, Director
Office of Equal Employment Opportunity and Diversity
US Patent & Trademark Office
600 Dulany Street
Madison East, Suite 7A85
Alexandria, VA 22314-1450
__________________
Date
______________________________
Compliance and Control Division
01 & 07 Merits Case Code Sheet - INTERNAL CIRCULATION ONLY
Initials Date TO: Carlton M. Hadden, Director, Office of Federal Operations Robbie Dix III, Director, Appellate Review Program FROM: Jane E. Coffey, Attorney 05/15/15 Joel Cavicchia, Supervisor Catherine McNamara, Division Director Appeal Number(s) 0120130466 Agency Number(s) 10-56-20 Hearing Number(s) 570-2011-00003X Complainant(s): Charles S. Brantley Agency: DOC (PTO) Decision: Affirmed Statute(s) Alleged Title VII Basis(es) Alleged OR - Reprisal/Reprisal Issue(s) Alleged A6 (Where Discrimination Is
Found Only): (A) Basis(es) For Finding: (B) Issues In Finding
(Check All Applicable Codes) Merits Decision Codes X 4A - Merits decision
? 4B - OFO found discrimination
List basis code(s):__________________
List issue code(s):__________________
? Comp. damages (C3) awarded?
X 4C - OFO found no discrimination/made no
determination re: discrimination
? 4E - Agency found discrimination
X 4F - Agency found no discrimination
X 4H - OFO affirmed Agency
? 4I - OFO reversed Agency
? 4J - OFO modified Agency (NOTE: if affirmed
in part and reversed in part, then (3L)
code required if at least one issue is
remanded)
? 3L - OFO remanded PART of Agency's merits
Decision (NOTE: Do not use 3L with a
4B code)
? 3P - Adverse inference
? 4K - AJ found discrimination
? 4L - AJ found no discrimination
? 4M - AJ made no finding ? 4N - OFO affirmed AJ
? 4O - OFO reversed AJ
? 4P - OFO modified AJ
X 4T - AJ issued Summary Judgment decision
X 4U - OFO affirmed AJ Summary Judgment
? 4V - OFO reversed AJ Summary Judgment
? 3H - OFO denied attorney's fees
? 3I - OFO approved attorney's fees
? 3J - OFO modified attorney's fees
? 3T - Decision on comp. Damages - DENIED
? 3U - Decision on comp. Damages-APPROVED
? 3V - Decision on comp. Damages - MODIFIED
? 3W - Remand to AJ for remedies
? 3Z - Remand to Agency for remedies
? 5R - class complaint certified
? 5S - class complaint not certified (class requirements not met)
? 5T - class complaint not certified (procedural dismissal)
? 5U - class complaint certification remanded for additional discovery
? 4Q - Compliance required
Imbedded Procedural Issues Codes Merit Affirmed Merit Reversed Merit Modified ? Procedural Affirmed = A
? Procedural Reversed = B
? Procedural Modified = C ? Procedural Affirmed = D
? Procedural Reversed = E
? Procedural Modified = F ? Procedural Affirmed = G
? Procedural Reversed = H
? Procedural Modified = I
ARP Companion Case Checklist
Complainant Agency Appeal/Request/Petition No. Charles S. Brantley DOC (PTO) 0120130466
OPEN CASES
Appeal No. IMS Status Related (Yes/No) Actions Taken 0120133137 2D No AJ issued SJ finding no discrim (non- selection)
CLOSED CASES
Appeal No. IMS Status Related (Yes/No) Actions Taken Numerous
CLASS ACTION CASES
Appeal No. ORADS Status Related (Yes/No) Actions Taken None
Jane E. Coffey 05/15/15
Attorney Date
2
0120130466
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120130466
6
0120130466