Desire M.,1 Complainant,v.Penny Pritzker, Secretary, Department of Commerce (Patent and Trademark Office), Agency.

Equal Employment Opportunity Commission

Jun 3, 2016

0120140288 (E.E.O.C. Jun. 3, 2016)

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

Desire M.,1
Complainant,

v.

Penny Pritzker,
Secretary,
Department of Commerce
(Patent and Trademark Office),
Agency.

Appeal No. 0120140288

Hearing No. 570-2012-00620X

Agency No. 11-56-32

DECISION

The Commission accepts Complainant’s appeal from the October 2, 2013 final Agency
decision (FAD) 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. The Commission’s review is de novo.
For the following reasons, the Commission AFFIRMS the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was an applicant for
employment with the Agency. Complainant previously worked as a Patent Examiner at the
Agency from March 1998 until she resigned in January 2003. Following her time as a Patent
Examiner, Complainant had been teaching high school.

Applicants for Patent Examiner positions submit their applications online and answer questions
as part of the application process. The applications are scored by computer and the applicants
are placed into certain categories. The Office of Human Resources creates a Best Qualified
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.

0120140288

2
List (BQL) based on the scores and refers the list to the Patent Hiring Center (PHC) for further
consideration. Once the PHC received the applications from the BQL, the PHC allows the
hiring coordinators (HCs) from the relevant TCs to review the applications. The discipline on
the vacancy announcement did not control which TC received the applications and many TCs
hired across disciplines. The PHC tracked the applications reviewed by the various HCs. If
an HC indicated interest in a candidate, the PHC would note it on a master list. The PHC
flagged a candidate’s resume once he or she was under consideration by a TC so that multiple
TCs could not pursue a candidate at the same time. Any candidate flagged for consideration
was unavailable for consideration by any other HC until the HC returned the application to the
PHC. Once a TC flagged a candidate, he or she was interviewed by the HC or a Supervisory
Patent Examiner (SPE). The PHC stored interview notes for other TCs to review without
having to re-interview the candidate.

Complainant applied for numerous Patent Examiner positions under various vacancy
announcements. Complainant made the BQL for Vacancy Announcement Nos. LD-416089,
LD-415890, LD-373499, LD-373500, and LD-373501 between December 1, 2010 and January
25, 2011, and her application was forwarded to the PHC for further consideration by the HCs.
Complainant’s resume was flagged by a Supervisory Patent Examiner (SPE1) for TC 3600
under LD-373500. SPE1 had Complainant’s resume from December 3, 2010 through
February 14, 2011; therefore, she could not be considered by other TCs during this time. As a
result, the BQLs for LD-416089, LD-415890, LD-373499, and LD-373501 expired before
Complainant’s resume was unflagged in the PHC database.

SPE1 spoke briefly with Complainant’s former supervisor (SPE2) and SPE2 told him that
Complainant left the Agency suddenly and that he did not know why. SPE2 was not asked for
a recommendation and he did not provide one. SPE2 noted that he spent a lot of time training
Complainant. Ultimately, SPE1 decided not to select Complainant. Complainant was also
under consideration by TCs 1700 and 3700, and she was interviewed by an SPE from 1700
(SPE3). SPE3 concluded that Complainant was an average candidate with no recent
intellectual property experience. Complainant was not selected for any of the positions
advertised under Vacancy Announcement Nos. LD-416089, LD-415890, LD-373499, LD-
373500, and LD-373501.

Subsequently, Complainant applied for Patent Examiner positions under Vacancy
Announcement Nos. CP-2011-0003 and CP-2011-0007. Applicants needed to receive a score
of at least 85 for placement on the BQL. Complainant failed to score high enough for
placement on the BQL for both vacancy announcements and was not referred to the PHC for
further consideration.

On May 24, 2011 (and amended on October 6, 2011), Complainant filed a formal complaint
alleging that the Agency discriminated against her on the bases of race (African-American),
sex (female), color (Black), age (41), and in reprisal for prior protected EEO activity when she
was not selected for the following positions:

0120140288

3
1. On March 2, 2011, a Patent Examiner position (Materials Engineering), under
Vacancy Announcement No. LD-416089;

2. On March 2, 2011, a Patent Examiner position (Chemical Engineering), Vacancy
Announcement No. LD-415890;

3. On March 4, 2011, a Patent Examiner position (Materials Engineering), Vacancy
Announcement No. LD-373499;

4. On March 4, 2011, a Patent Examiner position (Chemical Engineering), Vacancy
Announcement No. LD-373500;

5. On March 10, 2011, a Patent Examiner position (Mechanical Engineering),
Vacancy Announcement No. LD-373501;

6. On March 25, 2011, a Patent Examiner position (Physics), Vacancy Announcement
No. LD-376697;

7. On September 16, 2011, a Patent Examiner position (Mechanical Engineering),
Vacancy Announcement No. CP-2011-0003; and

8. On September 16, 2011, a Patent Examiner position (Biomedical Engineering),
Vacancy Announcement No. CP-2011-0007.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of her right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a
hearing, but the AJ denied the hearing request on the grounds that she failed to show good
cause for her failure to comply with the AJ’s orders to submit a pre-hearing report and appear
at a pre-hearing conference. The AJ remanded the complaint to the Agency, and the Agency
issued a FAD pursuant to 29 C.F.R. § 1614.110(b).

In the FAD, the Agency assumed arguendo that Complainant established a prima facie case of
discrimination and reprisal and found that management had articulated legitimate,
nondiscriminatory reasons for not selecting Complainant for the positions at issue.
Specifically, as to position (1), the selectee was significantly more qualified than Complainant:
he had a law degree, a doctorate in the field, and a master’s degree in computer science.
Complainant had no science or engineering degree beyond her bachelor's degree. With regard
to position (2), the vacancy announcement stated that management was seeking an experienced
intellectual property candidate and that the position started at the GS-11 level. Management
noted that the position required more rigorous credentials and management eventually did not
select anyone, including Complainant from the BQL.

0120140288

4
Regarding position (3), for this vacancy, TCs 1700 and 3600 were interested, but because
SPE1 had Complainant's resume flagged in the PHC system until February, 14, 2011, the
BQL expired before Complainant could be considered. Further, three selectees had
preferential hiring status not shared by Complainant. The fourth selectee's resume showed his
most recent job to be in materials engineering, whereas Complainant had been a high school
teacher.

With respect to position (4), TCs 1600, 1700, 2800, and 3600 all considered applicants from
the BQL for LD-375500. On or about December 1, 2010, SPE1, who was hiring for TC
3600, flagged Complainant’s resume, making it unavailable to other TCs. SPE1 talked to
Complainant on the telephone in January 2011. SPE1 ultimately decided to hire individuals
with a more mechanical than chemical background. The qualifications of SPE1’s selectees all
have mechanical backgrounds.

As to position (5), TCs 2800, 3600, and 3700 were interested; however, SPE1 had
Complainant's resume flagged in the PHC system until February, 14, 2011, and the BQL
expired before Complainant could be considered. The Agency selected 33 people from the
BQL, and the resumes and interview notes show that each had qualifications for the position
and positive interview notes and scores.

Regarding position (6), TCs 2800 and 3600 were interested in the BQL for this vacancy;
however, because SPE1 had Complainant’s resume flagged in the PHC system until February
14, 2011, the BQL expired during the time of the hold. The Agency subsequently selected two
individuals from this vacancy announcement. One of the selectees was working towards a
Ph.D., and was a veteran. The other selectee had superior experience, including a stint as the
dean of the Egyptian Air Force Academy, one of Egypt’s leading schools for science and
engineering. Finally, with respect to positions (7) and (8), Complainant did not score high
enough on an automated, computer-scored assessment of qualifications to make the BQL for
further consideration. The same evaluation was applied equally to each candidate.

The Agency concluded that Complainant failed to establish that management’s reasons for its
actions were pretext for unlawful discrimination or reprisal. As a result, the Agency found
that Complainant had not been subjected to discrimination or reprisal as alleged. The instant
appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant claims that the Agency’s hiring and rehiring policies disparately
impacted her and others based upon her race, sex, age, and prior protected EEO activity.
Complainant contends that she was highly qualified for the positions at issue because she was
interviewed by SPE1. Further, Complainant argues that while her application contained no
demographic information, certain information can be “inferred” from a candidate’s
submissions. Finally, Complainant contends that she has demonstrated that the Agency’s

0120140288

5
stated justifications for not selecting her were pretextual. Accordingly, Complainant requests
that the Commission reverse the FAD.

ANALYSIS AND FINDINGS

Disparate Treatment

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating
that she 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, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. 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 pretextual. Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 519 (1993).

In the instant case, the Commission finds that, assuming arguendo that Complainant established
a prima facie case of discrimination and reprisal, the Agency articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, as to position (1), the record reveals
that management selected a candidate with a law degree, a doctorate in the relevant field, and a
master’s degree in computer science. ROI, at 298, 305-21. Complainant, on the other hand,
had no science or engineering degree beyond a bachelor’s degree. Id. at 340-49. With respect
to position (2), the Agency did not select anyone for this position. Id. at 350-535. The
Supervisor of the PHC noted that there was a low need for Chemical Engineering Patent
Examiners at the time and Complainant’s application had been flagged by TC 3600 at that
time. Id. at 147. Regarding positions (3), (5), and (6), Complainant was still flagged for
consideration by TC 3600 and was therefore unavailable to be considered under these vacancy
announcements. Id. at 146-47, 162-63. Finally, as to position (4), SPE1 confirmed that he
spoke with Complainant about the position, but decided not to select Complainant because he
sought a candidate with more of a mechanical background. Id. at 163. SPE1 acknowledged
that Complainant’s background as a Patent Examiner would have been helpful; however, to
him, the relevant technical background was more important. Id. at 164. As a result, he
selected three individuals with substantial mechanical engineering backgrounds. Id. at 163.

Finally, with respect to positions (7) and (8), Complainant was rated as qualified; however, the
Agency’s automated system scored Complainant’s resume and application materials lower than
the threshold for the BQL. ROI, at 233, 237. As a result, Complainant was not referred for
further consideration.

0120140288

6
Complainant now bears the burden of establishing that the Agency's stated reasons are merely
a pretext for discrimination. Complainant can do this directly by showing that the Agency's
proffered explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450
U.S. at 256. One way Complainant can establish pretext is by showing that her qualifications
are observably superior to those of the selectee. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th
Cir. 1981). This is simply one method and is not the only way Complainant may establish
pretext as to her non-selection claim.

The Commission finds that Complainant failed to show that her qualifications for the position
were plainly superior to those of the selectees. In this case, the selectees had attributes that
justified their selection and the selection officials involved all affirmed that they believed that
the selectees were better equipped to meet the Agency's needs. In the absence of evidence of
unlawful discrimination, the Commission will not second guess the Agency's assessment of the
candidates' qualifications. Tx. Dept. of Cmty. Affairs v. Burdine, 450 U.S. at 259.

The Commission does not have the benefit of an Administrative Judge's credibility
determinations after a hearing. Therefore, the Commission can only evaluate the facts based
on the weight of the evidence presented. The Commission finds that the record lacks evidence
that the Agency's selections or the selection process was tainted by discriminatory animus. At
all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of
the evidence that the Agency's reasons were not the real reasons and that discriminatory
animus was a factor in its actions. Complainant failed to carry this burden. As a result, the
Commission finds that Complainant has not established that she was subjected to discrimination
or reprisal as alleged

Disparate Impact

On appeal, Complainant raised arguments regarding the Agency’s hiring/rehiring practices and
its disparate impact on her protected classes. The Commission notes that such a claim was not
accepted for processing by the Agency. In addition, the record reveals that Complainant failed
to notify the Agency that she believed the accepted claim was incorrectly identified.
Furthermore, the Commission notes that Complainant did not attempt to amend her complaint
to include a disparate impact claim at any time prior to the conclusion of the investigation or
while the matter was pending before the AJ. Thus, the Commission finds that any disparate
impact claim is not part of Complainant’s instant complaint. Accordingly, the Commission
declines to address Complainant's disparate impact claim on appeal. See Turtle v. Dep’t of the
Army, EEOC Appeal No. 0120091975 (Sept. 17, 2009); Mitchell v. U.S. Postal Serv., EEOC
Appeal No. 0120071375 (May 14, 2009) (declining to address on appeal a complainant's
disparate impact claim because the agency did not accept it for processing and complainant did
not challenge the definition of the accepted claims)

0120140288

7
CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the Agency’s final decision because the preponderance of the evidence of record does not
establish that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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 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. The requests 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 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

0120140288

8
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

June 3, 2016
Date