[Redacted], Trent M., 1 Complainant,v.Gina M. Raimondo, Secretary, Department of Commerce (Patent and Trademark Office), Agency.Download PDFEqual Employment Opportunity CommissionNov 2, 2022Appeal No. 2022000776 (E.E.O.C. Nov. 2, 2022) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Trent M.,1 Complainant, v. Gina M. Raimondo, Secretary, Department of Commerce (Patent and Trademark Office), Agency. Appeal No. 2022000776 Hearing No. 570-2021-00814X Agency No. 20-56-80 DECISION On November 24, 2021, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s November 16, 2021, 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND and ANALYSIS At the time of events giving rise to this complaint, Complainant worked as a Patent Examiner at the Agency’s Patent and Trademark Office facility in Alexandria, Virginia. On September 8, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (South Asian), national origin (Bangladeshi), and religion (Muslim) when: 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. 2022000776 2 1. On June 12, 2020, the Agency terminated Complainant’s employment as a patent examiner during his probationary period. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing and over Complainant’s objections, issued a decision without a hearing on October 20, 2021. The AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its actions, i.e., that Complainant was not performing appropriate to his grade level, and that Complainant did not submit any evidence to indicate that the Agency’s reason was a pretext for discrimination. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. In rendering this appellate decision we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). We find that the AJ’s Notice of Proposed Summary Judgment (“Notice”) accurately recounted the relevant material facts and identified the legal standard for granting summary judgment. The AJ correctly determined that the record was sufficiently developed and that Complainant failed to establish a genuine dispute of material fact. We therefore find that the AJ’s issuance of a decision without a hearing was proper. We also find that the AJ’s Notice correctly identified the legal standards for Complainant to prove that he was subjected to disparate treatment on the bases of his race, national origin, and/or religion. We further find that the AJ correctly determined that, even assuming arguendo that Complainant could establish a prima facie case, the Agency articulated a legitimate, nondiscriminatory reason for terminating Complainant. The record includes Complainant’s performance assessments, conducted in January, April, and May 2020, and Complainant’s performance was rated as “needs improvement” in both the April and May assessments on such measures as “Planning field of search,” “Making proper rejections under 102 and 103,” “ability to accept instructions and respond to feedback,” and “ability to understand technology.” See Report of Investigation (ROI) at 72-75. The May 2020 assessment indicated that Complainant’s performance was not improving, as he was rated “needs improvement” in the same eight categories as in the previous assessment. See ROI at 72-74. The Notice of Termination stated that Complainant’s performance “ha[d] not progressed at the rate expected of a new patent examiner,” and that he had not “demonstrated that [he] can efficiently perform [his] assigned functions.” See ROI at 67. 2022000776 3 There is simply no evidence in the record to support Complainant’s assertions of discriminatory animus. Significantly, Complainant admitted that he was not aware of anyone outside of his protected classes who was treated differently. See ROI at 63. Neither Complainant’s subjective assessment of his own performance nor his repeated assertions of his belief that his supervisor’s evaluation of his performance was due to discriminatory animus is sufficient, without more, to establish pretext. The Commission has repeatedly stated that mere assertions or conjecture that an agency’s explanation is a pretext for intentional discrimination is insufficient because subjective belief, however genuine, does not constitute evidence of pretext. Juliet B. v. U.S. Postal Serv., EEOC Appeal No. 0120182519 (Oct. 8, 2019); Richardson v. Dep’t of Agriculture, EEOC Petition No. 03A40016 (Dec. 11, 2003). We therefore find that the AJ correctly determined that Complainant did not establish that he was discriminated against as alleged. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final order. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx 2022000776 4 Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 (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. 2022000776 5 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 November 2, 2022 Date Copy with citationCopy as parenthetical citation