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

Equal Employment Opportunity Commission

May 14, 2020

2019005351 (E.E.O.C. May. 14, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Bao S.,1 Complainant, v. Wilbur L. Ross, Jr., Secretary, Department of Commerce (Patent and Trademark Office), Agency. Appeal No. 2019005351 Hearing No. 570-2017-01393X Agency No. 17-56-04 DECISION On July 3, 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 June 4, 2019, final order concerning her 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Patent Examiner, GS- 15, at the Agency’s U. S. Patent and Trademark Office facility in Alexandria, Virginia. On March 17, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female) and age (56) 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. 2019005351 2 1. on October 2016, Complainant was not selected for the position of Supervisory Training Examiner, under Vacancy Announcement Number OTA 2016-0022 (Permanent Position); and 2. on January 9, 2017, Complainant was not selected for the position of Supervisory Training Examiner, under Vacancy Announcement Number OTA 2017-0001 (Temporary Position). At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s April 8, 2019, motion for a decision without a hearing and issued a decision without a hearing on May 24, 2019. Specifically, the AJ found that the Agency articulated legitimate, nondiscriminatory reasons for not selecting Complainant, namely that all the selectees had Electrical or Mechanical backgrounds, which the Agency preferred since the successful candidates would be training a large number of new Patent Examiners from those fields. In addition, the AJ found, the Members of the interview panels for both positions averred that the selectees performed better during the interviews than did Complainant. Finally, the AJ found that Complainant failed to establish that the Agency’s articulated reasons were a pretext for discrimination. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. 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. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. 2019005351 3 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. While Complainant has, in a very general sense, asserted that facts are in dispute, she has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor. Where, as here, complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three-part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must 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 St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804. This established order of analysis 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 Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983). For purposes of analysis we will assume, but do not find, that complainant established her prima facie case of discrimination. We next find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. With regard to the Permanent Position, the Selecting Official (SO: male, 49 years) averred that Complainant performed poorly during the interview process: There were a couple of things that were a concern. Complainant said production was the bane of her existence. For someone that was going to be a leader of new examiners, it concerned me that she was going to mentor and coach our examiners to be successful having this belief. She also stated that if an employee had an issue, she would take care of her employee first and not worry about her direct supervisor. In an interview, it is not a good practice to tell the Selecting Official that you do not care about what they think. If I needed her to take some action, I needed her to do the action, and I was concerned she may not do so when she made this statement. Complainant is a very good lecturer, but in my opinion, she is not a very good 2019005351 4 manager, and she had been coached several times on her management style in the past from multiple managers. She was a supervisor for PTA for several years, but there were these concerns about her performance while she was here. She also rambled off on a topic during the interview, and she made a comment about a gun being in a garage and used that as an analogy. I did not understand why she would bring up something like that in the workplace and I do not think she meant any harm but to me it was not appropriate to bring this up in the workplace. I did not want that to represent a manager of new examiners. SO further averred that the Selectee (S1: female, 49 or 50 years): [W]as selected as she had the best qualifications and had a great interview. She has been a manager on the employee relations team, on details in the different organizations, has been a SPE in TC 3600, and had also worked at the Patent Training Academy as a Class Manager. Her qualifications and interview brought her ahead of all the other applicants. A member of the Interview Panel for the Permanent Position (IP1: male, 48 years) averred that: In general, [Complainant] performed fine. She made some comments during the interview that could be perceived as not having managerial temperament. One wants to ensure the applicant had managerial temperament. I do not have notes on the specific comments. At times, Complainant was sarcastic or flippant with her comments. The issue is that she was rather familiar with those she was interviewing with, and some of her answers were of concern. As one example, one of the central functions of the USPTO is examining patent applications. We receive 560,000 to 580,000 patent applications every year, and we must examine them. Production is one of the primary areas the Agency focuses on, and Complainant did not demonstrate a recognition that she needed to represent the Agency's position on production. She indicated during the interview a statement to the effect that production did not matter to her. She tended to make comments in the interview that did not align with our Office's goals. Other than that, she had performed the job and had knowledge of the job. One part of this job is training and the other part is being a manager. She is a good trainer, but she had some issues in her management style when she was at the PTA. She did not demonstrate in the interview that she could exhibit the traits needed to be a manager to lead new employees to have the USPTO meet its goals. When Complainant made the flippant comments about production, after performing the job for four years, it was clear she did not understand the role of a manager is vital in ensuring the balance between quality and production, which is problematic when she would be leading new employees. 2019005351 5 With regard to S1, IP1 averred that she: [W]as determined to be the best for the fit for this job by the interview panel. All the people we hire at USPTO work in three different Disciplines: Over 50% in Electrical, 30% in Mechanical, and the other 20% are Chemical. In the PTA, the overwhelming majority (over 90%) will work in the Mechanical or Electrical Arts. Our preference was that we would hire someone into this position with an Electrical or Mechanical background, as it is preferred [sic] someone with that background to teach others to work in the Mechanical or Electrical Disciplines. We have not hired many people in the Biotechnical area, which is Complainant's area, for years. [S1] came from a Mechanical area and had a broad understanding of the different areas under Mechanical. She was an Examiner in Technology Center (TC) 3700, which is a mechanical discipline, and a Supervisory Patent Examiner (SPE) in TC 3600, so she had a broad knowledge in the Mechanical arts. We had a couple of SPE trainers that had a background in Electrical, but we do not have a lot of permanent trainers with a Mechanical background. [S1] had a lot of management experience in the various experience in management, and she performed very well in the interview. It was clear she was the best qualified person for the position. With regard to the Temporary Position, SO averred that: Complainant's interview was better than her first one, but still not as good as the other applicants. She is from a biotechnology area, TC 1600, and we have hired under 10 people under that technology in the last 3 to 4 years with no signs of hiring in TC 1600 in the foreseeable future. She stated she had trained different disciplines, which she has, but she has not trained a full lab of electrical or mechanical disciplines by herself. We had to provide her assistance from the TC she was training in when she did so in the past. The TCs want people who know the technology to train their new employees. She knew her TC was not hiring a lot of new examiners. [The two Selectees (S2: male, believed to be in his 30’s, and S3: male, believed to be in his 30’s] were both excellent. They had background [sic] we were interested in because we were hiring a lot of Electrical Patent Examiners, and they had the ability to do Mechanical as well. There were a lot of 101 [sic] rejections, and it was covering multiple areas of expertise with one hire for both hires. They both interviewed well, and when asked management questions, they were right on point with their response [sic]. Complainant had provided information that was of concern in her interview. I have a lot of details to my organization, and both had completed details to my organization. They both were given very high marks during their details. They had a good rapport with their TCs and were very highly rated by their TC. 2019005351 6 A member of the Interview Panel for the Temporary Position (IP2: female, 49 years) averred that: Complainant performed well in her interview overall. At times, she had a flippant or defensive type of attitude in the interview. We are training new employees, and we want people who will be able to help new employees live up to their PAP expectations. When we asked Complainant about production, which is in the PAP, Complainant stated it was the "bane of our existence." It was really bothersome for me to look at hiring a possible manager when they make such a statement. She also made the comment that we do not track stakeholder responsiveness. We deal with a lot of applications from the public, and we emphasize responsiveness. Someone that does not track that information would be of concern in training others, as they would not emphasize the importance of responsiveness to patent applicants. We strive to have people with a high quality with the high production, and Complainant stated that the only time we look at quality is if someone does something bad. We do not want someone that thinks we do not look for errors unless there is a big mistake. We want someone who will ensure quality is emphasized at the beginning. and look for improvements for quality at the beginning. The rest of her comments were very knowledgeable. She is very good at lecturing, but when 1 was her Class Manager, I had to coach her on several occasions to make statements that managers should not make, the specifics of which I do not recall at this time, and to work better with more difficult examiners, which was also a concern to me also. With regard to S2 and S3, IP2 averred that: These two individuals represented what we were looking for in this position. They had conducted training for their Technology Centers (TCs), and they were very knowledgeable and easy to get along with. They both seemed very nurturing, which for training new Patent Examiners, is what we need in this role. [S2] had been at PTA as a Training Assistant. While he was in that role, he had a Patent Examiner that was struggling, and he took the time to coach and mentor this individual to help them succeed. [S3] had training experience before he came to the Agency that was also considered to be an asset. The Agency having articulated legitimate nondiscriminatory reasons for its actions, the burden shifts back to Complainant to establish, by a preponderance of the evidence, that the Agency’s reasons were not its true reasons, but were pretexts for discrimination. See Hicks; Burdine; McDonnell Douglas. Following a review of the record, we find that Complainant has failed to meet its burden. The Agency declined to accept Complainant’s rebuttal statement on the grounds that it was not timely submitted. The statement, however, was included in the record and we note that Complainant reiterates many of the same arguments on appeal as those contained in her statement. We will therefore address Complainant’s rebuttal statement in this decision. 2019005351 7 With regard to the Permanent Position, Complainant first denies stating “production is the bane of my existence” during the interview and maintains that SO has no proof of her making such a comment. We note, however, that SO’s contemporaneous interview notes referenced Complainant’s “bane of existence” comment. Furthermore, IP1 essentially confirmed SO’s testimony in this regard, although IP1 did not use the same wording, stating “She indicated during the interview a statement to the effect that production did not matter to her.” Complainant next states: If I did make any related comment during the interview, for which there is no proof, I believe [SO]’s comment [sic] was taken out of context. In fact, production is the primary basis of rating examiners; it is a "critical" factor, and ALL examiners must make 88% production or they will lose their jobs as evidenced by their Performance Appraisal Plan. Saying that production was the bane of my existence was an accurate description of the situation I was in, not a complaint about it, nor the system in general. I was indicating that since having left the Patent Training Academy, I had been having trouble building a docket from scratch, that is, making production solely on new patent applications. In no way was my situation a reflection on how I would train new examiners. I never previously had any trouble making production. In fact, I made production of at least 110% for my previous twenty years' examining. [SO]’s insinuation that I was complaining about the system as a whole is misplaced. We note, however, that the fact that Complainant did not intend the comment to be a complaint and that SO and IP1 may have misconstrued or understood it out of context, while unfortunate for Complainant, does not indicate that their articulated reasons for their actions are pretextual or that their action was based on discrimination. The same rationale applies to the matter of Complainant’s indication during the interview that she did not care what her supervisor thought, a comment Complainant denies making, and her mentioning of a gun in her garage. In both cases, Complainant’s arguments that S0 misconstrued her comments we can assume to be true, but they do not establish that SO and IP1’s reasons for their actions are pretextual so as to mask discrimination based on age or sex. Complainant next maintains that her annual evaluations refute SO’s comments about her managerial abilities and further argues that her qualifications were demonstrably superior to those of S1. We note, however, that Complainant does not effectively rebut IP1’s testimony that S1 was selected, in part, because: [T]he overwhelming majority . . . (of new hires) will work in the Mechanical or Electrical Arts. Our preference was that we would hire someone into this position with an Electrical or Mechanical background, as it is preferred someone with that background to teach others to work in the Mechanical or Electrical Disciplines. We have not hired many people in the Biotechnical area, which is Complainant's area, for years. 2019005351 8 Complainant argues that she trained a wide variety of Patent Examiners and received “Outstanding” evaluations, but her rebuttal does not establish that Agency officials’ preference for candidates with Electrical or Mechanical backgrounds was so unreasonable as to establish pretext. We note in this regard that the Commission will not second-guess Agency personnel decisions, absent discriminatory animus. With regard to the Temporary Position, Complainant averred that “Contrary to [SO]'s comment about me not having trained a full lab of electrical or mechanical disciplines by myself, my very first class at the PTA was made up entirely of mechanical engineers.” We note, however, that Complainant did not state that SO was aware of this fact. Complainant next states “It is not clear to me how the electrical engineers hired for the position would be able to teach a diversity of students any better, or even as well as, I.” While Complainant may be correct in her belief, SO and IP2 both indicated that a main concern of theirs was the ability of the selectees to be able to teach Patent Examiners with electrical and mechanical engineering backgrounds, not those with a diversity of backgrounds. While Complainant maintains that her credentials and experience meant she could just as easily teach such examiners, as noted above, we find that Agency officials’ preference for candidates with Electrical or Mechanical backgrounds was not so unreasonable as to establish pretext. Complainant argues that in nonselection cases, pretext may be found where the complainant's qualifications are plainly superior to the selectee's, see Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981), and that her own qualifications are so plainly superior to those of the three selectees for the two positions that the Agency’s reasons must therefore be pretextual. We note, however, that “the bar is set high for this kind of evidence because differences in qualifications are generally not probative evidence of discrimination unless those disparities are ‘of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff for the job in question”.” Celestine v. Petroleos de Venezuela SA, 266 F.3d 343, 347 (5th Cir. 2001) citing Deines v. Texas Dept. of Prot. & Regulatory Servs., 164 F.3d 277, 281 (5th Cir.1999). We note in this regard that the Court in Bailar recognized that the hiring decision in that case “turned on comparative evaluation of capabilities considered important to performance [of the position in question]. The factors considered [by the selecting officials] generally required subjective judgments and were not measurable by objective standards.” Bailar, at 1048. Similarly in the instant case, while Complainant’s qualifications are indeed impressive, the record shows that the hiring decisions in the instant case also turned on comparative evaluation of the capabilities considered important to the position of a Supervisory Patent Examiner training Patent Examiners who were Mechanical and Electrical Engineers, and the belief by the selecting officials that degrees or backgrounds in such fields were more important than Complainant’s PhD in bioengineering and her other credentials. In addition, the hiring decision turned on the candidates’ interview performances, and those involved in the interviews averred that Complainant did not perform as well as the selectees. Given such factors we find that it cannot be said that “no reasonable person, in the exercise of impartial judgment, could have chosen” the selectees over Complainant. See Deines, at 280-81. 2019005351 9 We therefore find that Complainant has not shown, by a preponderance of the evidence, that the Agency’s articulated reasons for its actions are pretextual, or that the Agency harbored any animus towards Complainant’s protected bases. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not shown the discrimination occurred, and we AFFIRM the final order. 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). 2019005351 10 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 May 14, 2020 Date