Desire M.,1 Complainant,v.Penny Pritzker, Secretary, Department of Commerce (Patent and Trademark Office), Agency.Download PDFEqual Employment Opportunity CommissionJun 3, 20160120140288 (E.E.O.C. Jun. 3, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Desire M.,1 Complainant, v. Penny Pritzker, Secretary, Department of Commerce (Patent and Trademark Office), Agency. Appeal No. 0120140288 Hearing No. 570-2012-00620X Agency No. 11-56-32 DECISION The Commission accepts Complainant’s appeal from the October 2, 2013 final Agency decision (FAD) concerning her 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission’s review is de novo. For the following reasons, the Commission AFFIRMS the FAD. BACKGROUND At the time of events giving rise to this complaint, Complainant was an applicant for employment with the Agency. Complainant previously worked as a Patent Examiner at the Agency from March 1998 until she resigned in January 2003. Following her time as a Patent Examiner, Complainant had been teaching high school. Applicants for Patent Examiner positions submit their applications online and answer questions as part of the application process. The applications are scored by computer and the applicants are placed into certain categories. The Office of Human Resources creates a Best Qualified 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 0120140288 2 List (BQL) based on the scores and refers the list to the Patent Hiring Center (PHC) for further consideration. Once the PHC received the applications from the BQL, the PHC allows the hiring coordinators (HCs) from the relevant TCs to review the applications. The discipline on the vacancy announcement did not control which TC received the applications and many TCs hired across disciplines. The PHC tracked the applications reviewed by the various HCs. If an HC indicated interest in a candidate, the PHC would note it on a master list. The PHC flagged a candidate’s resume once he or she was under consideration by a TC so that multiple TCs could not pursue a candidate at the same time. Any candidate flagged for consideration was unavailable for consideration by any other HC until the HC returned the application to the PHC. Once a TC flagged a candidate, he or she was interviewed by the HC or a Supervisory Patent Examiner (SPE). The PHC stored interview notes for other TCs to review without having to re-interview the candidate. Complainant applied for numerous Patent Examiner positions under various vacancy announcements. Complainant made the BQL for Vacancy Announcement Nos. LD-416089, LD-415890, LD-373499, LD-373500, and LD-373501 between December 1, 2010 and January 25, 2011, and her application was forwarded to the PHC for further consideration by the HCs. Complainant’s resume was flagged by a Supervisory Patent Examiner (SPE1) for TC 3600 under LD-373500. SPE1 had Complainant’s resume from December 3, 2010 through February 14, 2011; therefore, she could not be considered by other TCs during this time. As a result, the BQLs for LD-416089, LD-415890, LD-373499, and LD-373501 expired before Complainant’s resume was unflagged in the PHC database. SPE1 spoke briefly with Complainant’s former supervisor (SPE2) and SPE2 told him that Complainant left the Agency suddenly and that he did not know why. SPE2 was not asked for a recommendation and he did not provide one. SPE2 noted that he spent a lot of time training Complainant. Ultimately, SPE1 decided not to select Complainant. Complainant was also under consideration by TCs 1700 and 3700, and she was interviewed by an SPE from 1700 (SPE3). SPE3 concluded that Complainant was an average candidate with no recent intellectual property experience. Complainant was not selected for any of the positions advertised under Vacancy Announcement Nos. LD-416089, LD-415890, LD-373499, LD- 373500, and LD-373501. Subsequently, Complainant applied for Patent Examiner positions under Vacancy Announcement Nos. CP-2011-0003 and CP-2011-0007. Applicants needed to receive a score of at least 85 for placement on the BQL. Complainant failed to score high enough for placement on the BQL for both vacancy announcements and was not referred to the PHC for further consideration. On May 24, 2011 (and amended on October 6, 2011), Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), color (Black), age (41), and in reprisal for prior protected EEO activity when she was not selected for the following positions: 0120140288 3 1. On March 2, 2011, a Patent Examiner position (Materials Engineering), under Vacancy Announcement No. LD-416089; 2. On March 2, 2011, a Patent Examiner position (Chemical Engineering), Vacancy Announcement No. LD-415890; 3. On March 4, 2011, a Patent Examiner position (Materials Engineering), Vacancy Announcement No. LD-373499; 4. On March 4, 2011, a Patent Examiner position (Chemical Engineering), Vacancy Announcement No. LD-373500; 5. On March 10, 2011, a Patent Examiner position (Mechanical Engineering), Vacancy Announcement No. LD-373501; 6. On March 25, 2011, a Patent Examiner position (Physics), Vacancy Announcement No. LD-376697; 7. On September 16, 2011, a Patent Examiner position (Mechanical Engineering), Vacancy Announcement No. CP-2011-0003; and 8. On September 16, 2011, a Patent Examiner position (Biomedical Engineering), Vacancy Announcement No. CP-2011-0007. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing, but the AJ denied the hearing request on the grounds that she failed to show good cause for her failure to comply with the AJ’s orders to submit a pre-hearing report and appear at a pre-hearing conference. The AJ remanded the complaint to the Agency, and the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b). In the FAD, the Agency assumed arguendo that Complainant established a prima facie case of discrimination and reprisal and found that management had articulated legitimate, nondiscriminatory reasons for not selecting Complainant for the positions at issue. Specifically, as to position (1), the selectee was significantly more qualified than Complainant: he had a law degree, a doctorate in the field, and a master’s degree in computer science. Complainant had no science or engineering degree beyond her bachelor's degree. With regard to position (2), the vacancy announcement stated that management was seeking an experienced intellectual property candidate and that the position started at the GS-11 level. Management noted that the position required more rigorous credentials and management eventually did not select anyone, including Complainant from the BQL. 0120140288 4 Regarding position (3), for this vacancy, TCs 1700 and 3600 were interested, but because SPE1 had Complainant's resume flagged in the PHC system until February, 14, 2011, the BQL expired before Complainant could be considered. Further, three selectees had preferential hiring status not shared by Complainant. The fourth selectee's resume showed his most recent job to be in materials engineering, whereas Complainant had been a high school teacher. With respect to position (4), TCs 1600, 1700, 2800, and 3600 all considered applicants from the BQL for LD-375500. On or about December 1, 2010, SPE1, who was hiring for TC 3600, flagged Complainant’s resume, making it unavailable to other TCs. SPE1 talked to Complainant on the telephone in January 2011. SPE1 ultimately decided to hire individuals with a more mechanical than chemical background. The qualifications of SPE1’s selectees all have mechanical backgrounds. As to position (5), TCs 2800, 3600, and 3700 were interested; however, SPE1 had Complainant's resume flagged in the PHC system until February, 14, 2011, and the BQL expired before Complainant could be considered. The Agency selected 33 people from the BQL, and the resumes and interview notes show that each had qualifications for the position and positive interview notes and scores. Regarding position (6), TCs 2800 and 3600 were interested in the BQL for this vacancy; however, because SPE1 had Complainant’s resume flagged in the PHC system until February 14, 2011, the BQL expired during the time of the hold. The Agency subsequently selected two individuals from this vacancy announcement. One of the selectees was working towards a Ph.D., and was a veteran. The other selectee had superior experience, including a stint as the dean of the Egyptian Air Force Academy, one of Egypt’s leading schools for science and engineering. Finally, with respect to positions (7) and (8), Complainant did not score high enough on an automated, computer-scored assessment of qualifications to make the BQL for further consideration. The same evaluation was applied equally to each candidate. The Agency concluded that Complainant failed to establish that management’s reasons for its actions were pretext for unlawful discrimination or reprisal. As a result, the Agency found that Complainant had not been subjected to discrimination or reprisal as alleged. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant claims that the Agency’s hiring and rehiring policies disparately impacted her and others based upon her race, sex, age, and prior protected EEO activity. Complainant contends that she was highly qualified for the positions at issue because she was interviewed by SPE1. Further, Complainant argues that while her application contained no demographic information, certain information can be “inferred†from a candidate’s submissions. Finally, Complainant contends that she has demonstrated that the Agency’s 0120140288 5 stated justifications for not selecting her were pretextual. Accordingly, Complainant requests that the Commission reverse the FAD. ANALYSIS AND FINDINGS Disparate Treatment To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). In the instant case, the Commission finds that, assuming arguendo that Complainant established a prima facie case of discrimination and reprisal, the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, as to position (1), the record reveals that management selected a candidate with a law degree, a doctorate in the relevant field, and a master’s degree in computer science. ROI, at 298, 305-21. Complainant, on the other hand, had no science or engineering degree beyond a bachelor’s degree. Id. at 340-49. With respect to position (2), the Agency did not select anyone for this position. Id. at 350-535. The Supervisor of the PHC noted that there was a low need for Chemical Engineering Patent Examiners at the time and Complainant’s application had been flagged by TC 3600 at that time. Id. at 147. Regarding positions (3), (5), and (6), Complainant was still flagged for consideration by TC 3600 and was therefore unavailable to be considered under these vacancy announcements. Id. at 146-47, 162-63. Finally, as to position (4), SPE1 confirmed that he spoke with Complainant about the position, but decided not to select Complainant because he sought a candidate with more of a mechanical background. Id. at 163. SPE1 acknowledged that Complainant’s background as a Patent Examiner would have been helpful; however, to him, the relevant technical background was more important. Id. at 164. As a result, he selected three individuals with substantial mechanical engineering backgrounds. Id. at 163. Finally, with respect to positions (7) and (8), Complainant was rated as qualified; however, the Agency’s automated system scored Complainant’s resume and application materials lower than the threshold for the BQL. ROI, at 233, 237. As a result, Complainant was not referred for further consideration. 0120140288 6 Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256. One way Complainant can establish pretext is by showing that her qualifications are observably superior to those of the selectee. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). This is simply one method and is not the only way Complainant may establish pretext as to her non-selection claim. The Commission finds that Complainant failed to show that her qualifications for the position were plainly superior to those of the selectees. In this case, the selectees had attributes that justified their selection and the selection officials involved all affirmed that they believed that the selectees were better equipped to meet the Agency's needs. In the absence of evidence of unlawful discrimination, the Commission will not second guess the Agency's assessment of the candidates' qualifications. Tx. Dept. of Cmty. Affairs v. Burdine, 450 U.S. at 259. The Commission does not have the benefit of an Administrative Judge's credibility determinations after a hearing. Therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. The Commission finds that the record lacks evidence that the Agency's selections or the selection process was tainted by discriminatory animus. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons were not the real reasons and that discriminatory animus was a factor in its actions. Complainant failed to carry this burden. As a result, the Commission finds that Complainant has not established that she was subjected to discrimination or reprisal as alleged Disparate Impact On appeal, Complainant raised arguments regarding the Agency’s hiring/rehiring practices and its disparate impact on her protected classes. The Commission notes that such a claim was not accepted for processing by the Agency. In addition, the record reveals that Complainant failed to notify the Agency that she believed the accepted claim was incorrectly identified. Furthermore, the Commission notes that Complainant did not attempt to amend her complaint to include a disparate impact claim at any time prior to the conclusion of the investigation or while the matter was pending before the AJ. Thus, the Commission finds that any disparate impact claim is not part of Complainant’s instant complaint. Accordingly, the Commission declines to address Complainant's disparate impact claim on appeal. See Turtle v. Dep’t of the Army, EEOC Appeal No. 0120091975 (Sept. 17, 2009); Mitchell v. U.S. Postal Serv., EEOC Appeal No. 0120071375 (May 14, 2009) (declining to address on appeal a complainant's disparate impact claim because the agency did not accept it for processing and complainant did not challenge the definition of the accepted claims) 0120140288 7 CONCLUSION After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0416) 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 Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 0120140288 8 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations June 3, 2016 Date Copy with citationCopy as parenthetical citation