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

Equal Employment Opportunity Commission

Oct 4, 2019

2019002735 (E.E.O.C. Oct. 4, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Tod P.,1
Complainant,

v.

Wilbur L. Ross, Jr.,
Secretary,
Department of Commerce
(Patent and Trademark Office),
Agency.

Appeal No. 2019002735

Agency No. 18-56-05

DECISION

On April 11, 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
March 12, 2019, 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Patent Examiner,
GS-14, at the Agency’s US Patent and Trademark Office facility in Alexandria, VA.

On January 18, 2018, Complainant filed an EEO complaint alleging that the Agency subjected
him to a hostile work environment and discriminated against him on the bases of race
(Caucasian), color (tan), national origin (Egyptian), religion (Christian), and reprisal for
protected EEO activity (this complaint) under Title VII when:

1. On August 29, 2017, Complainant received a Letter of Counseling for allegedly not
completing the mandatory Fiscal Year 2017 Information Technology (IT) Security
Training;

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.
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2. On or about September 17, 2017, and on-going, Complainant’s supervisor has denied
Complainant’s request for “Other Time” related to IT issues and participating in
Office of Human Resources processes and has also overly scrutinized Complainant’s
time and attendance;
3. On September 22, 2017, Complainant’s supervisor “maintained one (1) Charged
error,” notifying Complainant nearly three (3) months after Complainant submitted
the rebuttals (6/30/17) and too late in the fiscal year for Complainant to address the
issue;
4. On or about November 30, 2017, Complainant’s supervisor withdrew three (3)
allowances, without notifying Complainant that he had lost those “counts /
production;”
5. On or about December 7, 2017, an attorney from the Office of General Law contacted
Complainant to conduct an inquiry based on allegations that Complainant improperly
assisted friends with their patent applications;
6. On or about January 22, 2018, Complainant’s second-line supervisor altered his detail
interest form to change the language from “If selected this employee may participate
in a career development detail, Patent Examining Professional, as announced under”
to “TC Director acknowledges that the employee has applied for a career
development detail;”
7. On or about March 6, 2018, Complainant received a Notice of Proposed Seven (7)
Day Suspension for alleged improper conduct;
8. On or about May 1, 2018, Complainant received an unfairly negative mid-year
evaluation which contained mistakes with respect to his production score and
improperly charged him with errors; and
9. On or about August 14, 2018, Complainant received a Decision on Proposed
Suspension, suspending him for five (5) days based on alleged misconduct.

Complainant focuses his appeal primarily on claim 5, regarding the ethics inquiry by the Office
of General Law.

The pertinent record reveals the following facts. As a Patent Examiner, Complainant’s duty was
to review patent applications to determine if they are patentable (allowed) or not (rejected). As a
“primary” Patent Examiner, Complainant has full signatory authority to issue official actions on
behalf of the Agency.

Complainant’s first-line supervisor was the Supervisory Patent Examiner (SPE). His second-line
supervisor was the Group Director for Technology Center (Group Director). His third-line
supervisor was the Assistant Deputy Commissioner for Patent Operations (ADC).

During a routine review of Complainant’s timesheet in April of 2017, the SPE asked
Complainant about one of Complainant’s timesheet entries. ROI at 250, 265. Complainant told
the SPE that he entered some time spent assisting friends and business associates with patent
matters. Believing this violated the Agency rules, the SPE informed the Group Director, who
advised the SPE to disapprove the time and to instruct Complainant to cease such activities.
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That same month (April of 2017), Complainant averred that he verbally opposed management’s
conduct that he believed to be discriminatory. He made EEO contact on October 5, 2017.

In October of 2017, while gathering documents related to Complainant’s EEO case, the SPE re-
discovered Complainant’s email about assisting friends with patent matters. The SPE, who had
just completed ethics training a few weeks prior, became concerned the conduct might constitute
an ethics violation. The SPE contacted an Agency ethics attorney, which resulted in the inquiry
from the Agency’s Office of General Law on December 7, 2017.

In December of 2017, the Group Director instructed Complainant to review and comply with the
Manual of Patent Examination Procedures (MPEP) regarding email communications with
applicants and attorneys. The Group Director discovered that Complainant was not following her
instructions. Based on evidence, on March 6, 2018, the Group Director issued Complainant a
Notice of Proposed Seven Day Suspension for his improper use of email for communications
with patent applications. During his oral reply, Complainant acknowledged that his conduct was
improper. ROI at 437. The seven-day suspension was reduced to a five-day suspension.

The management officials were aware of his EEO opposition. The SPE averred that she learned
that Complainant contacted the EEO office in November of 2017. Report of Investigation (ROI)
at page 251. The other named management officials became aware of his EEO activity in April
and May of 2018. ROI at 277, 283.

Seven other patent examiners were disciplined for misconduct by the Group Director and / or the
ADC in the past two years. ROI at 452. Of the seven, two of the comparator employees had prior
EEO activity.

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).

Agency Decision

The Agency found that it did not discriminate against Complainant. The Agency concluded that
the totality of the evidence failed to show that the Agency subjected him to discrimination or
harassment based on his race, color, national origin, religion, or prior EEO activity. The Agency
reasoned that the review of his work productivity, as well as consideration of assisting friends
with their patent applications were an exercise of his supervisors’ legitimate authority. The
Agency also reasoned that it had legitimate reasons for its actions. The Agency found that
Complainant failed to rebut the reasons proffered by management to show pretext.

This appeal followed. On appeal, Complainant focuses on his claim 5, that the Office of General
Law contacted him about an ethics issue. He asserts that he would not have been having
discussions with his Director about his patent applications, if it were not for his initial EEO
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activity. He states that those communications subsequently led to his suspension. During the
conversation with his supervisor, Complainant stated that his supervisor told him that his
“assisting friends with their patent applications” was a possible ethics violation, but the
supervisor did not report the “issue,” until after Complainant made EEO contact regarding this
complaint. Complainant states this was evidence of the claimed retaliation.

ANALYSIS AND FINDINGS

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”).

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 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. See McDonnell Douglas, 411 U.S. at 802, footnote 3.
The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its
actions. See Texas Dep’t of Community 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 a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993);
Burdine, 450 U.S. at 256.

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 the personnel action
at issue, 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. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and
Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the
Navy, EEOC Petition No. 03900056 (May 31, 1990).

We will assume for purposes of our analysis that management was aware of Complainant’s
protected bases and that Agency management was aware of his EEO activity, when he was
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subjected to the ethics inquiry and suspension at issue. In this case, however, we find that the
record does not otherwise substantiate his claims.

Specifically, we find that the record evidence does not support his claim that he was subjected to
undue scrutiny, because five others, not in his protected groups, were similarly disciplined for
misconduct by the Group Director or ADC.

Moreover, the responsible management officials articulated legitimate, non-discriminatory
reasons for each of its actions. The investigation was initiated after an internal investigation
concluded that Complainant’s conduct (spending time assisting friends and business associates
with patent matters) was inconsistent with the recent ethics training that the management had
received. The Agency also stated that the Agency’s need to uncover suspected misconduct and
ethics violations constitutes a legitimate, nonretaliatory reason to initiate an investigation. In
addition, management discovered that Complainant had not followed the Group Director’s
instructions regarding the proper use of email.

Complainant contends that the Agency’s reason for initiating an ethics inquiry is pretextual,
because the Agency did not initiate the inquiry until several months after it learned of his
misconduct. The mere fact of a delay between learning of the problematic conduct and initiating
an ethics inquiry does not establish pretext in this case. There is no evidence that others who
were similarly situated were treated better.

For these reasons, we find that Complainant failed to prove, by a preponderance of the evidence,
that the Agency’s proffered reasons were a pretext for unlawful discrimination. Stated
differently, he did not show that the Agency failed to make its actions free of discrimination
through evidence proving that a protected basis – in this case, that his race, color, national origin,
religion, and/or prior EEO activity was a factor in its decisions.

Harassment

To establish a claim of hostile environment harassment, a complainant must show that: (1) he or
she belongs to a statutorily protected class: (2) he or she was subjected to harassment in the form
of unwelcome verbal or physical conduct involving the protected class; (3) that harassment
complained of was based on his statutorily protected class; (4) the 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; and
(5) there is a basis for imputing liability. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir.
1982); Will K. v. Dep’t of Veterans Affairs (Veterans Health Administration), EEOC Appeal
0120142904 (Oct. 18, 2016).

In other words, to prove his harassment claim, Complainant must establish that he was subjected
to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s
position would have found the conduct to be hostile or abusive. Complainant must also prove
that the conduct was taken because of a protected basis – in this case, his race, color, national
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origin, religion or retaliatory animus. Only if Complainant establishes both of those elements –
hostility and motive – will the question of Agency liability present itself.

We note that Complainant perceived the alleged events to be hostile and that he disagreed with
the Agency’s reasoning for initiating an ethics investigation and the subsequent suspension.
Although Complainant believed that he was subjected to retaliatory harassment, we find that he
failed to provide sufficient evidence to show that the alleged incidents occurred as he stated or
that the incidents occurred because of the protected bases alleged in his complaint.

Therefore, based upon our review of the record, we find that Complainant failed to meet his
burden of establishing that the alleged events occurred because of his protected bases and/or
prior EEO. Consequently, we conclude that the Agency correctly determined that the
preponderance of the evidence did not establish that Complainant was discriminated against by
the Agency as alleged.

CONCLUSION

Accordingly, we AFFIRM the Agency’s Final Decision.

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 tends 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
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(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.
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

October 4, 2019
Date