0120130466
05-19-2015
Complainant, v. Penny Pritzker, Secretary, Department of Commerce (Patent and Trademark Office), Agency.
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 an 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.
Complainant filed a formal EEO complaint alleging unlawful retaliation with respect to the performance appraisal he received on October 28, 2009, for Fiscal Year (FY) 2009. Complainant alleged that management used a retaliatory "production plan"1 when determining his rating for the production element (in which he was rated as Fully Successful) of his appraisal. He received an overall rating of Commendable for FY 2009. As a result, in December 2009, Complainant alleged he received a lower monetary amount than he would have had he received had he received a higher rating.
The Agency accepted the complaint and conducted an investigation. 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, including discriminatory conduct on a variety of bases, by a Supervisory Petitions Examiner which resulted in an HR investigation. Complainant stated that he did not sign either memorandum.
Later, management adopted objective production plans for employees in the Office of Petitions. Complainant alleged that the Supervisory Petitions Examiner created a new production plan that made it more difficult for Petitions Attorneys because of the 2002 petition. The Supervisory Petitions Examiner was not in Complainant's chain of command, but was the author of the production plan used by Complainant's supervisors. Complainant had also filed numerous previous EEO complaints involving the implementation of this new production plan, which have included appeals to the Commission.2
The production plan was used for evaluations for fiscal years 2007, 2008 and 2009. For his FY 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 Director of the Office of Petitions stated that during the relevant period he was Complainant's supervisor ("the Supervisor"). The Supervisor stated that he was Complainant's rating supervisor for FY 2009. The 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 Supervisor stated that he used a written report for the Production element of Complainant's evaluation, noting 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."
Finally, the Supervisor sated that when the production plan was being negotiated with the union, Complainant submitted an alternative plan, but it was not adopted. On appeal, Complainant disputes that management engaged in negotiations with the union over the production plan.
The Director of the Office of PCT Legal Administration ("the Director") was the approving official for Complainant's FY 2009 performance appraisal. The Director stated that Complainant was rated "Fully Successful" in the element of productivity because Complainant's 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 five 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 Patent 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
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.
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).
In this case, the rating officials stated that Complainant received a Fully Successful on the production element of his performance plan as a result of the neutral application of the office's numerical standards in its production plan that were applied to his work during the relevant period. Complainant does not contest this fact, or argue that some kind of error occurred in the application of the production plan to his work. Rather, on appeal, Complainant's main argument is that a hearing is necessary to resolve whether or not the facially neutral production plan that resulted in Complainant receiving a Fully Successful in the production element of his appraisal had been created to unlawfully retaliate against the attorneys in his office because of the complaints they lodged against the Supervisory Petitions Examiner in 2002. Complainant does not claim that his rating supervisor was motivated by retaliatory animus. Rather, in essence, he argues that the rating supervisor was locked into mechanically applying the production plan that had been created in retaliation for the attorneys in the office accusing the author of the production plan with misconduct.
It is undisputed that the production plan was applied to all attorneys performing the same job as Complainant regardless of whether or not they have had prior EEO activity. Complainant makes no allegation that he was treated differently from those who had no prior EEO activity. Moreover, while Complainant claims that almost all the attorneys, including himself, had engaged in protected EEO activity by 2009, he has also argued that the retaliatory production plan was created in response to the 2002 memoranda complaining about the Supervisory Petitions Examiner, memoranda which Complainant did not sign. In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. Complainant has argued that it is disputed whether or not the union was actively involved in the implementation of the production plan, and has also argued that the production plan treats attorneys performing one function more favorably than attorneys performing another function. However, in the end, we agree with the AJ that Complainant has failed to point to evidence that he could present at a hearing which would show that his performance appraisal was impacted by the fact that he had engaged in prior protected EEO activity.
The Agency's final order implementing the AJ's decision without a hearing, finding no unlawful retaliation proven, 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
May 19, 2015
__________________
Date
1 According to Complainant's brief, a production plan identified the credit, as a time value, to be given an employee for issuing decisions in response to various types of petitions.
2 We note that Complainant previously raised the same claim concerning the alleged retaliatory nature of the production plan in an earlier EEO complaint. In Agency No. 0756110, he alleged a claim identical to the one alleged in the instant complaint, although it concerned his FY 2007 performance appraisal. In that earlier case, Complainant withdrew his complaint concerning the impact of the alleged retaliatory production plan at the hearing level. Complainant v. Commerce, EEOC Appeal No. 0120093342 (September 13, 2011).
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120130466
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120130466
7
0120130466