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

Equal Employment Opportunity Commission

Sep 4, 2019

0120181920 (E.E.O.C. Sep. 4, 2019)

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

Sammy R.,1
Complainant,

v.

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

Appeal No. 0120181920

Agency No. 17-56-84

DECISION

Complainant timely 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 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the
Agency’s final decision.

ISSUES PRESENTED

The issues presented are (1) whether the Agency properly dismissed Complainant’s claim that
the Agency discriminatorily demoted him and removed his supervisory duties, and (2) whether
Complainant established that the Agency's proffered explanation for issuing him a Letter of
Reprimand (LOR) was pretext to mask discrimination based on his protected classes.
BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Supervisory Patent
Classifier (SPC), GS-15, at the Agency’s Classification Standards and Development (CSD)
Division, Office of International Patent Cooperation (OIPC) in Alexandria, Virginia. Report of

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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Investigation (ROI), at 19. Complainant’s duties as a supervisor included management of
employees holding Chemical Classifier positions.

In July 2016, management received a report from a CSD employee that Complainant acted
unprofessionally at times and sometimes “disturbed” employees. ROI, at 81. Management was
reportedly informed that Complainant went into employees’ offices, closed the door, made staff
members cry, and yelled at and reprimanded his employees over trivial matters. Id. at 24, 28.
Several of Complainant’s subordinate employees apparently reported to management that they
were afraid to work with Complainant due to his conduct towards them. Id. As a result,
Complainant was relieved of his supervisory duties and the Agency’s Employee Relations (ER)
division initiated an investigation into the allegations against Complainant. Another manager
(M1) took over supervising the employees whom Complainant previously supervised.

Thereafter, on February 2, 2017, several management officials held an investigatory meeting
with Complainant regarding the complaints about him. Id. at 66. During this meeting, according
to Complainant, the ER Specialist asked him if he said to CSD employees, “I hate [the] European
Patent Office (EPO)” and “I would take some EPO representatives to South East DC and show
them the streets.” Id. Complainant denied making such comments to employees, and believed the
implication was racially offensive towards him. At the end of the meeting, according to
Complainant, his first-level supervisor (S1) instructed him to avoid discussing the ER complaint
and investigation with any employee of the CSD. Id. However, both S1 and the ER Specialist
attested that Complainant was also specifically instructed to completely avoid contacting his
former subordinate CSD employees. Id. at 76, 88.

In March 2017, M1 sent an email to CSD staff, including Complainant, stating that she would be
leaving the CSD on April 3, 2017, to take another position within the Agency. Id. at 23.
Complainant assumed that, with M1’s departure, he would again be placed in his former
supervisory position. Id. However, S1 never responded to Complainant’s inquiry as to whether
he would again be placed back in his supervisory role. Id.

On March 13, 2017, Complainant contacted the Agency’s EEO office, expressing his concern
that the Agency was subjecting him to harassment by making false allegations against him with
respect to the ER investigation. Id. at 22. During this time, Complainant requested to be
transferred to a position with the Office of Patent Quality Assurance (OPQA), believing that the
position would provide him relief from the harassment against him. Id. The Agency granted
Complainant’s request and Complainant was transferred into the position on May 1, 2017. Id.

Meanwhile, on April 5, 2017, Complainant received two CSD emails with specific instructions
for Chemical Classifiers on how to perform their positions. Id. at 67. Complainant believed the
two emails were important, so he forwarded the emails to his former subordinate Chemical
Classifiers, and also copied management on the emails. Id.

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Subsequently, on May 8, 2017, management issued a LOR to Complainant, writing that
Complainant’s April 5, 2017, emails to the CSD classifiers constituted a failure to follow the
February 2, 2017, instruction directing him to have no contact with members of his previous
staff. Id. at 107-08. The LOR advised that Complainant had engaged in improper conduct and
that any further similar conduct may result in further disciplinary action, including the removal
from federal service. Id.

Complainant contacted an EEO Counselor on May 8, 2017, and filed an EEO complaint on
August 9, 2017, alleging that the Agency discriminated against him on the bases of race
(African-American), age, and reprisal for prior protected EEO activity when:

1. On May 8, 2017, he was issued a Letter of Reprimand (LOR); and

2. In July 2016, he was demoted, and his supervisory duties were removed.

On September 7, 2017, the Agency issued a letter of Partial Acceptance/Dismissal of
Complainant’s complaint. Therein, the Agency accepted claim 1 for investigation, but dismissed
claim 2 for untimely EEO Counselor contact.

Following 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.

The Agency specifically found that Complainant did not establish a prima facie case of
retaliation or discrimination. The Agency further found that management articulated a legitimate,
nondiscriminatory reason for issuing Complainant the LOR, which Complainant did not show
was pretextual. In so finding, the Agency noted that all managers at the February 2, 2017,
meeting attested that Complainant was instructed to have no contact with the CSD employees.
The Agency also noted that Complainant maintained that non-African-American and younger
supervisors were also subject to employee complaints, but they were not given a LOR as he was.
The Agency however found no evidence of such complaints and no evidence that similarly
situated supervisors failed to follow instructions, as Complainant did. The Agency further found
that management granted Complainant’s request to be reassigned to the OPQA, which weakened
Complainant’s claim that the discipline was pretext for discrimination.

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CONTENTIONS ON APPEAL

On appeal, Complainant requests that the LOR be removed from his personnel file and that the
Commission take any other actions “deemed to be appropriate under the law.” Complainant also
states that his appeal relates to the Agency’s Partial Acceptance/Dismissal of his complaint, but
he does not specifically address the Agency’s reasons for dismissing claim 2. The Agency did
not file a statement in opposition to the appeal.

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 Chap. 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”).

ANALYSIS AND FINDINGS

Procedural Dismissal (Claim 1)

EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination be
brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45)
days of the date of the matter alleged to be discriminatory or, in the case of a personnel action,
within forty-five (45) days of the effective date of the action. The Commission has adopted a
“reasonable suspicion” standard (as opposed to a “supportive facts” standard) to determine when
the forty-five (45) day limitation period is triggered. See Howard v. Dep’t of the Navy, EEOC
Request No. 05970852 (February 11, 1999). Thus, the time limitation is not triggered until a
complainant reasonably suspects discrimination, but before all the facts that support a charge of
discrimination have become apparent.

The Agency relieved Complainant of his supervisory duties in July 2016, but he did not contact
an EEO Counselor until May 8, 2017, which is well beyond the forty-five (45) day limitation
period. Complainant states on appeal that he is challenging the dismissal of claim 1, but he has
not presented any persuasive arguments or evidence warranting an extension of the time-limit for
initiating EEO Counselor contact. Accordingly, we find that the Agency properly dismissed
claim 2 for untimely EEO Counselor contact.

Disparate Treatment (Claim 2)

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To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). A complainant must initially establish a prima facie case by demonstrating that he was
subjected to an adverse employment action under circumstances that would support an inference
of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima
facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S.
at 802 n.13. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory
reason for its actions. Texas Dep't of Cmty, Affairs v. Burdine, 450 U.S. 248, 253 (1981). To
ultimately prevail, a 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 Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

After a review of the record, assuming without so finding that Complainant has established a
prima facie case of discrimination based on his protected classes, we find that the Agency has
articulated a legitimate, nondiscriminatory reason for issuing the LOR to Complainant. The
Agency issued the LOR because Complainant contacted former employees who were previously
under his supervision after he management instructed him not to do so in the February 2, 2017,
meeting. The HR Specialist specifically explained that she concluded that Complainant’s emails
had been sent by Complainant to his former staff, violating the instruction from management.
ROI, at 92-93. The HR Specialist further explained that, after reviewing disciplinary policies for
pertinent guidance and consistency, she found that the LOR was the appropriate action and
drafted the LOR, which she sent to S1 for issuance to Complainant. Id.
The burden now shifts to Complainant to establish that the Agency's nondiscriminatory reasons
were pretext for discrimination. Burdine, at 254. In an attempt to show pretext, Complainant
stated that the April 5, 2017, emails he relayed to the Chemical Classifiers did not have any
personal text from him, nor did the emails have any reference to the ER investigation.
Complainant averred that the emails were not directed to any specific members of his staff who
were “involved in the ongoing matter” against him, but he said that he was never told who in the
CSD had allegedly made complaints against him. Complainant also averred that the underlying
ER case against him, the source of the February 2, 2017, instruction, closed with no findings of
misconduct on his part. Complainant moreover maintained that two younger Caucasian SPCs
were not similarly disciplined and removed from their supervisory positions when complaints
were made against them as well. Complainant stated that he was the only African-American
SPC, and he believed that certain members of his staff felt uncomfortable with having him as a
supervisor due to his race. Complainant further averred that it was only after he had contacted
the EEO office regarding the ER investigation and harassment that he received the LOR. He
further asserted that he received a picture of a “Fig Newton,” from another Caucasian SPC,
which he believed was discriminatory.
Upon review, we find that Complainant has not established that the Agency’s reason for issuing
him the LOR were pretextual based on his protected classes. In so finding, we note that multiple
management officials attested that they received complaints about Complainant’s management
style.
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Multiple management officials were also present at the February 2, 2017, meeting, and they
attested that Complainant was instructed to have no contact with his former subordinate
employees. While Complainant may have simply forwarded an important work email where he
did not reference the ER investigation, he still contacted his former subordinate employees. We
find that Complainant has not shown that management was motivated by discriminatory or
retaliatory animus in providing him with the LOR. Specifically, the record reflects that it was the
HR Specialist who made the decision to issue Complainant with the LOR, and we find that
Complainant has not established that the HR Specialist’s decision was motivated based on his
race, age, or protected EEO activity.

As Complainant did not request a hearing before an EEOC AJ, we do not have the benefit of an
AJ's credibility determinations of the witnesses in this case. Complainant bears the burden to
prove, by a preponderance of the evidence, that he was subjected to discrimination. When the
evidence is at best equipoise, Complainant fails to meet that burden. See Complainant v. Dep't of
Health and Human Servs., EEOC Appeal No. 0120122134 (Sept. 24, 2014) (citing Lore v. Dep't
of Homeland Sec., EEOC Appeal No. 0120113283 (Sept. 13, 2013) and Brand v. Dep't of Agric.,
EEOC Appeal No. 0120102187 (Aug. 23, 2012).

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 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 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.
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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.
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 4, 2019
Date