Samuel R.,1 Complainant,v.Wilbur L. Ross, Jr., Secretary, Department of Commerce (Patent and Trademark Office), Agency.

Equal Employment Opportunity Commission

Aug 19, 2020

2019001557 (E.E.O.C. Aug. 19, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Samuel R.,1 Complainant, v. Wilbur L. Ross, Jr., Secretary, Department of Commerce (Patent and Trademark Office), Agency. Appeal No. 2019001557 Agency No. 18-56-37 DECISION On January 29, 2019, 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 December 21, 2018, final decision 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 decision. ISSUE PRESENTED The issue presented is whether Complainant has shown by a preponderance of the evidence that the Agency subjected him to discrimination based on his religion and in reprisal. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Patent Examiner, GS- 1224-13, in Art Unit 3685 at the Agency’s facility in Alexandria, Virginia. On April 9, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of religion (Zen Buddhism) and reprisal for prior protected EEO activity (instant complaint) 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. 2019001557 2 1. on or about November 27, 2017, Complainant was denied a religious accommodation when he was not given time to prepare a rebuttal to proposed errors in his work as part of the Partial Signatory Authority (PSA) Program when the time to submit the rebuttal was during a mandatory religious retreat;2 2. on or around December 14, 2017, the Agency issued Complainant’s Denial of Permanent Signatory Authority (PSA); 3. since on or about January 4, 2018 and continuing, Complainant’s supervisor has been issuing him an unreasonable and excessive number of errors and returns on his work, which resulted in Complainant’s loss of Auto-count privileges; 4. on or about February 6, 2018, Complainant received a Letter of Counseling;3 5. on or about March 15, 2018, Complainant received a Letter of Reprimand; and, 6. on or about March 19, 2018, the Agency issued Complainant a second Denial of Permanent Signatory Authority. The investigative record reflects the following pertinent matters relating to the subject claims. Complainant named his former first line supervisor, the Supervisory Patent Examiner as the responsible management official (RMO1). Complainant’s second-line supervisor was the Technology Center (TC) Group Director. On May 28, 2017, Complainant began participation in the PSA Program, for which RMO1 had recommended him. The program was set to end on November 25, 2017. The PSA Program gives qualified patent examiners six months to have limited signatory authority during which they are evaluated for permanent PSA status. To pass the PSA Program, examiners must stay below a certain error rate. At the end of the program, participants are given a list of errors made during the program. Participants can then rebut any proposed errors before they are officially charged. A “Signatory Program Information” memorandum dated July 2017 incorporated the contents of various agreements regarding the PSA Program. The memorandum stated that a final decision on whether a PSA Program participant is granted permanent PSA status must be delivered to the participant “no later than 2 [pay periods] after the trial period ends,” and that “[t]he decision to grant or deny the signatory authority will be rendered by the Technology Center Director and notified to the examiner no later than the last day of the second pay period after the program ends.” 2 Claims 1 and 2 were accepted on the basis of religion only. 3 Claims 4 - 6 were accepted on the basis of retaliation only. 2019001557 3 On September 15, 2017, while in the PSA Program, Complainant submitted a request to RMO1 to use religious compensatory time to attend a religious retreat between November 29, 2017 and December 15, 2017. RMO1 told Complainant that he did not have any religious compensatory time accrued, but that he could approve it under his regular accrued compensatory time. RMO1 also reminded Complainant that the Agency would have to decide on the grant of permanent PSA status no later than two bi-weeks of the end of the PSA Program. The PSA Program was set to end on November 25, 2017. On November 27, 2017, RMO1 sent a letter to Complainant outlining his errors during the PSA Program. The letter stated that a detailed review of seventeen applications were completed by an independent panel. RMO1 did not review the cases himself. The panel’s findings were forwarded to the TC Group Director, who made the final decision on permanent PSA based on the errors found. Each application was reviewed by two independent reviewers. The letter stated that any rebuttals to errors were due no later than December 4, 2017. The letter informed Complainant that a final decision on the grant of permanent PSA would be determined by December 22, 2017. Complainant responded by asking for a general extension as he would be away on a religious retreat. That same day, RMO1 requested a specific date for the extension. Complainant did not respond until after his return. On December 14, 2017, Complainant was denied permanent PSA via email. RMO1 noted that the decision was posted that week because the TC Group Director was on leave the following week, and decisions had to be submitted prior to the deadline. The email informed Complainant that he could appeal the decision, and still rebut the errors. On December 15, 2017, Complainant returned from his religious retreat. On January 3, 2018, and January 10, 2018, RMO1 sent Complainant emails reminding him that he had an opportunity to rebut the errors found by the panel and appeal the denial. Complainant did not respond to either emails From January 2018 until his transfer in April 2018, Complainant received numerous returns on his work from RMO1. Complainant noted that once he transferred, he has seen no issues, and the returns he did get were reasonable. Complainant states the excessive and inappropriate criticism of his work by RMO1 caused him to lose his Auto-count privileges. Complainant stated that the Auto-count privileges instantly counted his submitted cases as completed work, but that without Auto-count, his cases were not counted until they have been reviewed. He indicated that this negatively affected his Docket Management and Production scores. He stated that he had Auto- count privileges for the last four or five years. He noted that he has received monetary awards in the past for having outstanding docket management scores. However, losing the Auto-count privileges created a spiraling effect, and he has not been able to catch up on his cases. RMO1 asserted that he was paying closer attention to Complainant’s work because he had failed the PSA Program. RMO1 thought that if he helped Complainant catch errors early on, he might have a higher chance of passing the PSA Program the second time. RMO1 acknowledged that he was finding more errors, but only because he was paying closer attention. 2019001557 4 He acknowledged that in 2015, he returned 76 cases to Complainant; in 2016, it was 57 returns; in 2017 it was 36 returns; and, in 2018, it was 76 returns. RMO1 stated that Complainant lost his Auto-count, not because of the number of returns, but because he did not timely correct the errors once the work was returned. It was the action of letting the cases sit that caused Complainant to lose his Auto-count privilege. RMO1 noted he supervised another individual who also lost his privileges, but that once he started to clear his errors, the Auto-count was returned to him. On February 6, 2018, RMO1 issued Complainant a Letter of Counseling (LOC) for making inappropriate comments regarding a meeting agenda. Complainant disputed they were inappropriate. The LOC was issued because Complainant had sent several emails to other employees complaining about certain examiners in the art unit and their performance, which RMO1 found to be inappropriate and unprofessional. On February 21, 2018, Complainant submitted his rebuttal to the errors charged during the PSA Program review. The same panel that reviewed Complainant’s original work was convened to review his rebuttal. The panel agreed with Complainant on one of the errors and it was removed; however, Complainant still had too many overall errors to pass the PSA Program. The TC Group Director agreed with the panel and did not find that Complainant had sufficiently rebutted the errors to allow him to obtain permanent PSA. On March 15, 2018, RMO1 issued Complainant a Letter of Reprimand for acting inappropriately toward a co-worker; Complainant disputed it was inappropriate. Here, Complainant had sent an email to RMO1 and another examiner stating that the examiner “may want to consider your options moving forward. You may be in hot water and not realize it.” RMO1 felt that Complainant’s email was harassing towards his coworker. Complainant argued that he was merely concerned of unfair behavior happening in the workplace. On March 19, 2018, Complainant received a second denial of permanent PSA, which explained with specificity why Complainant’s rebuttals were not sufficient. 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). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. CONTENTIONS ON APPEAL Complainant argued that the Agency clearly discriminated against him based on his religion and subjected him to retaliation once he brought his claims forward. Complainant provided a detailed brief, partially reiterating facts in the record, and partially arguing that the Agency’s provided reasons were pretext for discrimination. 2019001557 5 For example, Complainant asserted that the PSA Program was set to end on November 25, 2017, and that based on that date, the Agency should have given him until December 20, 2017 to respond with any concerns, as the decision due date was not until December 23, 2017. Instead, Complainant asserted that he was only given until December 4, 2017 to respond, even though management was fully aware that he was away at a religious retreat on that date. Complainant also argued that the Agency’s effort to accommodate him was also made in bad faith, and merely an attempt to appear accommodating. Complainant asserted it was clear that management targeted him, knowing that he would be absent due to his religious retreat. Complainant also argued that the Agency’s portrayal of an extension and acceptance of his rebuttals on February 19, 2018, was not gesture of good faith, but a result of Complainant initiating the EEO process. The Agency asserted that the final decision should be affirmed because Complainant failed to demonstrate that he was subjected to discrimination based on his religion or retaliation for his prior EEO activity. More specifically, the Agency argued that Complainant failed to establish, below or on appeal, that he was denied a religious accommodation when he was not given sufficient time to rebut errors before he was denied Permanent PSA because the Agency made a good faith attempt to accommodate him. Additionally, the Agency argued that Complainant’s claim of religious discrimination must also fail because the official who denied his PSA was unaware of his religious beliefs. Moreover, the Agency argued that there was no evidence to demonstrate the Agency’s asserted legitimate reasons for its actions were pretextual. Lastly, the Agency noted that the memorandum specified that the results, of whether a participant is granted permanent PSA status, must be delivered to the participant “no later than 2 [pay periods] after the trial period ends,” and that “[t]he decision to grant or deny the signatory authority will be rendered by the Technology Center Director and notified to the examiner no later than the last day of the second pay period after the program ends.” The Agency argued that it was appropriate for management to seek rebuttals well before the end of two pay periods specified in the memorandum, and that it was not required to wait until the last minute, as Complainant suggested, to seek rebuttals. STANDARD OF REVIEW As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “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”). 2019001557 6 ANALYSIS AND FINDINGS Disparate Treatment Complainant alleges that he was subjected to disparate treatment. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he must first establish a prima facie case 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. McDonnell Douglas, 411 U.S. at 802, n. 13; 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. 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. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for its actions, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983). Religious Accommodation Under Title VII, employers are required to accommodate the religious practices of their employees unless a requested accommodation is shown to impose an undue hardship. 29 C.F.R. § 1605.2(b)(1). The traditional framework for establishing a prima facie case of discrimination based on religious accommodation requires complainant to demonstrate that: (1) he has a bona fide religious belief, the practice of which conflicted with his employment; (2) he informed the agency of this belief and conflict; and (3) the agency nevertheless enforced its requirement against him. Baum v. Social Sec. Admin., EEOC Appeal No. 01A05985 (March 21, 2002) (citations omitted). “A refusal to accommodate is justified only when an employer … can demonstrate that an undue hardship would in fact result from each available alternative method of accommodation.” 29 C.F.R. § 1605.2(c). Pursuant to 29 C.F.R. § 1605.2(d), alternatives for accommodating an employee's religious practices include, but are not limited to, voluntary substitutes and swaps, flexible scheduling, and lateral transfers and job changes. To show undue hardship, an employer must demonstrate that an accommodation would require more than a de minimis cost. Baum, EEOC Appeal No. 01A05985 (citation omitted). 2019001557 7 Reprisal Complainant also alleges that the Agency retaliated against him. In accordance with the burdens set forth in McDonnell Douglas, and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). Analysis Regarding Complainant’s disparate treatment and religious accommodation claims, if we assume, arguendo, that Complainant established a prima facie case of discrimination based on his religion and protected EEO activity, we find that the Agency has articulated legitimate, nondiscriminatory reasons for its actions. Here, Complainant asserted that he was denied a religious accommodation when he was not given the proper time to prepare a rebuttal for errors found while he was part of the PSA Program. Complainant argued that failure to accommodate his religious needs directly affected the Agency’s decision to deny him permanent signatory authority. Complainant also argued extensively, particularly on appeal, his belief that the July 2017 memorandum allowed Complainant, and other participants, a certain window for responding with a rebuttal. Specifically, Complainant argued that he should have had until at least December 20, 2017 to respond. Complainant asserted that RMO1 was well aware that he would not return from his religious retreat until December 15, 2017, and yet chose to have his rebuttal due on December 4, 2017. Here, the record demonstrated that Complainant requested leave in September 2017 for a religious retreat from November 29, 2017 to December 15, 2017. Two days after the close of the program, on November 27, 2017, RMO1 sent a letter to Complainant outlining his errors during the PSA Program. The letter stated that a detailed review of seventeen applications were completed by a separate panel, which found numerous errors. RMO1 set the rebuttal date to December 4, 2017. While Complainant had two days to respond prior to his leave, he asked RMO1 for an extension. Complainant did not provide a specific date. That same day, RMO1 responded that it would be possible, but he would need a specific date for the extension as the deadline was coming up. Complainant did not respond. On December 14, 2017, the Agency issued him a denial of permanent PSA status based on the errors made during the program. Nevertheless, Complainant was provided with an opportunity to rebut the errors and appeal the denial. The record demonstrated that RMO1 sent Complainant two emails reminding him of this opportunity on January 3, and 10, 2018. Complainant did not respond to either email. However, on February 21, 2018, Complainant submitted his rebuttal to the errors charged. Despite the length of time that had passed, management allowed for the rebuttal. The same panel that reviewed Complainant’s original work was re-convened to review his rebuttal. The panel agreed with Complainant on one of the errors, which was removed. However, Complainant still had too many overall errors to pass the PSA Program. 2019001557 8 The TC Group Director agreed with the panel and did not find that Complainant had sufficiently rebutted the errors to allow him to obtain permanent PSA. Based on the record, the Agency was under a clear time constraint to submit all decisions by December 22, 2017 (December 23, 2017 was a Saturday). However, the Agency noted that due to the TC Group Director’s planned leave, officials were further constrained to make decisions by December 15, 2017. While this was one week earlier than the memorandum required, the memorandum’s specifications were only that decisions needed to be made within two bi-weeks. It was the Agency’s choice to make decisions a week earlier than required. Complainant argued that management, and RMO1 knew he would be away but chose to set the rebuttal date during his leave. We note that Complainant had two days prior to his leave to respond to the errors. Additionally, RMO1 did attempt to accommodate Complainant and asked for his extension date, but Complainant failed to respond prior to going on leave. Moreover, even though a decision was made while he was away, Complainant was still given an opportunity to respond to the errors and the denial when he returned. We agree with the Agency that it made a good faith effort to accommodate Complainant, therefore, we find that Complainant was not discriminated against based on his religion Complainant also asserted that he was retaliated against for initiating this complaint in the forms of losing his Auto-count privileges and receiving a Letter of Counseling (LOC) and Letter of Reprimand (LOR). In each instance, the Agency has provided a legitimate, nondiscriminatory reason for its action. Regarding the Auto-count privileges, RMO1 acknowledged that he was reviewing Complainant’s work more closely. RMO1 explained that he felt if he helped Complainant catch mistakes early on, he might have a better chance of succeeding in the PSA Program the second time. The record demonstrated that RMO1 returned 75 matters to Complainant for review. Additionally, the action of returning the work did not cause Complainant to lose his Auto-count privilege. It was Complainant’s delay in responding to those matters. RMO1 was not responsible for removing or adding Auto-count privilege, and it was noted that he had another subordinate temporarily lose Auto-count before it was added back on. Regarding the LOC and the LOR, the record demonstrated that Complainant had made unprofessional comments towards the same coworker. RMO1 felt that it was disrespectful and issued the LOC and LOR. In each instance, Complainant disagreed and argued that LOC and LOR were clear examples of retaliation, and that any reason provided was pretext. However, the record simply does not support an inference of pretext. Based on the foregoing, we conclude that the preponderant evidence does not establish that the Agency acted with discriminatory or retaliatory animus regarding the subject claims. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed or referenced herein, we AFFIRM the Agency’s finding that it did not discriminate against Complainant as alleged. 2019001557 9 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request 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 agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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. 2019001557 10 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 August 19, 2020 Date