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

Equal Employment Opportunity Commission

Sep 17, 2019

2019004115 (E.E.O.C. Sep. 17, 2019)

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

Lazaro G,1
Complainant,

v.

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

Request No. 2019004115

Appeal No. 0120170802

Agency No. 13-56-14

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120170802 (May 17, 2019). EEOC
Regulations provide that the Commission may, in its discretion, grant a request to reconsider any
previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting
party demonstrates 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. See 29 C.F.R. § 1614.405(c).

Complainant worked at the Agency as a Patent Examiner between September 2003 and October
2004. In 2012, Complainant applied for reemployment with the Agency as a Patent Examiner
(Computer Science), GS-9, under Vacancy Announcement Number CP-2012-0187. In 2014,
Complainant applied for reemployment as a Patent Examiner (Computer Engineering), GS-7 and
GS-9, under Vacancy Announcement Numbers CP-2014-0009, CP-2014-0033, and CP-2014-
0042. He also applied for a GS-11, Patent Examiner position under Vacancy Announcement
Number CP-2014-0024.

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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On February 24, 2013, Complainant filed an EEO complaint alleging that the Agency
discriminated against him based on disability and reprisal for prior EEO activity when it failed to
select him for a Patent Examiner position. Subsequently, Complainant amended his complaint
several times with additional non-selections, as specified above.

Following an EEO investigation, at Complainant’s request, on November 14, 2016, the Agency
issued a final agency decision as to the four 2014 non-selections. The Agency found no
discrimination regarding the 2014 non-selections. On August 11, 2017, at Complainant’s
request, the Agency issued a final agency decision regarding the 2012 non-selection. The
Agency found that it discriminated against Complainant based on reprisal when it failed to select
Complainant for the 2012 Patent Examiner vacancy. The Agency concluded that retaliation was
a factor in its suitability decision for the non-selection. As remedial relief, the Agency ordered a
new suitability review for Complainant; if found suitable, an offer of employment to a GS-9
Patent Examiner position; and consideration of entitlement to damages.

An appeal from Complainant followed, which the Commission docketed as EEOC Appeal No.
0120170802. In a decision dated May 17, 2019, in EEOC Appeal No. 0120170802, the
Commission agreed with the Agency’s finding of discrimination as to the 2012 non-selection and
modified the Agency’s remedial relief order. EEOC ordered the Agency to retroactively place
Complainant in a Patent Examiner position, with appropriate career ladder promotions and back-
pay and, if appropriate, to conduct a five-year suitability re-investigation. EEOC affirmed the
Agency’s finding of no discrimination regarding the four 2014 non-selections.

The instant Request for Reconsideration from Complainant followed. In his reconsideration
request, Complainant alleged that the Commission wrongly suggests the Patent Hiring Center
Director had to have extensive influence over or participate in the decision-making process for it
to find discrimination. Complainant asked the Commission to reconsider his prior submissions in
full. Complainant stated further that the Agency did not investigate the disparate impact of its
hiring practice (utilizing Re-Hiring Analysis for Former Agency Employees form) on persons
with disabilities.

We emphasize that a request for reconsideration is not a second appeal to the Commission. See
EEO MD-110, Ch. 9, § VII.A. Rather, a reconsideration request is an opportunity to
demonstrate that the appellate decision involved a clearly erroneous interpretation of material
fact or law, or will have a substantial impact on the policies, practices, or operations of the
Agency. Complainant has not done so here.

After reviewing the previous decision and the entire record, the Commission finds that the
request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the
Commission to deny the request. We conclude that Complainant reiterated prior contentions that
were considered and/or addressed in Appeal No. 0120170802. The decision in EEOC Appeal
No. 0120170802 remains the Commission's decision. There is no further right of administrative
appeal on the decision of the Commission on this request.

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ORDER

To the extent it has not already done so, unless otherwise indicated, the Agency is ordered to
take the following remedial action within one hundred and twenty (120) days of the date this
decision is issued:

1. The Agency shall retroactively place Complainant in the Patent Examiner
(Computer Science) position, as advertised under Vacancy Announcement
Number CP-2012-0187, or a substantially equivalent position, effective
September 10, 2012. The Agency shall grant Complainant fifteen (15) days to
determine whether to accept the position. Should Complainant reject the job offer,
Complainant's entitlement to back pay shall terminate as of the date of rejection.

2. Failure to accept the offer within the time period set by the Agency will be
considered rejection of the offer, unless Complainant can show that circumstances
beyond his control prevented a response within the time limit.

3. The Agency shall determine the appropriate amount of back pay, with interest,
and other benefits due Complainant pursuant to 29 C.F.R. § 1614.501.
Complainant is entitled to any benefits to which he would have been entitled but
for the discrimination, as well as expected promotions throughout the period, i.e.,
step increases and grade increases. Complainant shall cooperate in the Agency's
efforts to compute the amount of back pay and benefits due and shall provide all
relevant information requested by the Agency. If there is a dispute regarding the
exact amount of back pay and/or benefits, the Agency shall issue a check to
Complainant for the undisputed amount within sixty (60) calendar days of the
date the Agency determines the amount it believes to be due. Complainant may
petition for enforcement or clarification of the amount in dispute. The petition for
enforcement or clarification must be filed with the Compliance Officer at the
address referenced in the statement entitled “Implementation of the Commission's
Decision.”

4. The Agency shall also pay compensation for the adverse tax consequences of
receiving back pay as a lump sum. Complainant has the burden of establishing the
amount of increased tax liability, if any. Once the Agency has calculated the
proper amount of back pay, Complainant shall be given the opportunity to present
the Agency with evidence regarding the adverse tax consequences, if any, for
which Complainant shall then be compensated.

5. The Agency shall provide training to the responsible management officials
regarding their obligation not to retaliate against employees who exercise their
rights to engage in protected EEO activity.

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6. The Agency shall consider taking appropriate disciplinary action against the
responsible management officials, including HRS1. The Commission does not
consider training to be disciplinary action. The Agency shall report its decision to
the Compliance Officer. If the Agency decides to take disciplinary action, it shall
identify the action taken. If the Agency decides not to take disciplinary action, it
shall set forth the reason(s) for its decision not to impose discipline. If any of the
responsible management officials have left the Agency's employ, the Agency
shall furnish documentation of their departure date(s).

7. The Agency shall pay Complainant reasonable attorney's fees and costs for the
work associated with Claim 1.

8. The Agency shall post a notice in accordance with the paragraph below entitled
“Posting Order.”

The Agency is further directed to submit a report of compliance in digital format as provided in
the statement entitled “Implementation of the Commission's Decision.” The report shall be
submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further,
the report must include supporting documentation of the Agency's calculation of back pay and
other benefits due Complainant, including evidence that the corrective action has been
implemented.

POSTING ORDER (G0617)

The Agency is ordered to post copies of the attached notice. Copies of the notice, after being
signed by the Agency's duly authorized representative, shall be posted both in hard copy and
electronic format by the Agency within 30 calendar days of the date this decision was issued,
and shall remain posted for 60 consecutive days, in conspicuous places, including all places
where notices to employees are customarily posted. The Agency shall take reasonable steps to
ensure that said notices are not altered, defaced, or covered by any other material. The original
signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled
“Implementation of the Commission's Decision,” within 10 calendar days of the expiration of the
posting period. The report must be in digital format, and must be submitted via the Federal
Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g).

ATTORNEY'S FEES (H1016)
If Complainant has been represented by an attorney (as defined by 29 C.F.R.
§ 1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable attorney's fees incurred in the
processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid
by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the
Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30)
calendar days of the date this decision was issued. The Agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. § 1614.501.
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IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719)
Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered
corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP)
supporting documents in the digital format required by the Commission, referencing the
compliance docket number under which compliance was being monitored. Once all compliance
is complete, the Agency shall submit via FedSEP a final compliance report in the digital format
required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must
contain supporting documentation when previously not uploaded, and the Agency must send a
copy of all submissions to the Complainant and his/her representative.
If the Agency does not comply with the Commission’s order, the Complainant may petition the
Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has
the right to file a civil action to enforce compliance with the Commission’s order prior to or
following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and
29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the
underlying complaint in accordance with the paragraph below entitled “Right to File a Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action
on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 &
Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated. See 29 C.F.R.
§ 1614.409.
Failure by an agency to either file a compliance report or implement any of the orders set forth in
this decision, without good cause shown, may result in the referral of this matter to the Office of
Special Counsel pursuant to 29 CFR § 1614.503(f) for enforcement by that agency.
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (Q0610)

This decision affirms the Agency’s final decision/action in part, but it also requires the Agency
to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which
the Commission has affirmed and that portion of the complaint which has been remanded for
continued administrative processing. In the alternative, you may file a civil action after one
hundred and eighty (180) calendar days of the date you filed your complaint with the Agency,
or filed your appeal with the Commission. 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. Filing a civil action will
terminate the administrative processing of your complaint.

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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

September 17, 2019
Date