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

Equal Employment Opportunity Commission

Dec 4, 2018

0120172667 (E.E.O.C. Dec. 4, 2018)

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

Esteban S.,1
Complainant,

v.

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

Appeal No. 0120172667

Agency No. 14-56-33

DECISION

On July 25, 2017, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s June 30, 2017 final decision concerning an equal employment opportunity (EEO)
complaint claiming 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

On November 4, 2013, Complainant was hired as a Patent Examiner at the Agency’s Art Unit,
Technology Center, United States Patent and Trademark (USPTO) in Alexandria, Virginia,
under a career conditional appointment subject to a one-year probationary period.

On August 4, 2014, Complainant filed a formal complaint alleging that the Agency discriminated
against him on the bases of race (African), color (black), national origin (Ghana), and age (over
40 years) when:

1. since March/April 2014, his supervisor has treated him differently than younger
examiners not adequately reviewing his work, subjecting him to piecemeal reviews

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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and not provided him with assistance he needs to succeed, prompting his low
production;

2. on April 9 and 24, 2014, his supervisor spoke to him in a rude and inappropriate
manner concerning work review;

3. on April 9, 2014, his supervisor told him not to seek assistance from anyone else and
on April 22, 2014, his supervisor told him that he “didn’t need to work here” when
discussing an application; and

4. on August 25, 2014, he was removed from federal service during his probationary
period.

After the investigation of the formal complaint, Complainant was provided with a copy of the
report of investigation and notice of the right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant initially requested a hearing. Complainant, however,
subsequently withdrew the hearing request. The Agency issued the instant final decision on June
30, 2017, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination.

The instant appeal followed.

ANALYSIS AND FINDINGS

Hostile Work Environment

With regard to Complainant’s hostile work environment claim, to establish a claim of hostile
environment harassment, Complainant must show that: (1) he belongs to a statutorily protected
class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct
involving the protected class; (3) the harassment complained of was based on his statutorily
protected class; (4) the harassment affected a term or condition of employment and/or had the
purpose or effect of unreasonably interfering with the work environment and/or creating an
intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing
liability. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).

In other words, to prove his harassment claim, Complainant must establish that he was subjected
to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s
position would have found the conduct to be hostile or abusive. Complainant must also prove
that the conduct was taken because of his protected bases – in this case, his race, color, national
origin or age. Only if Complainant establishes both of those elements, hostility and motive, will
the question of Agency liability present itself. Here, Complainant simply has provided no
evidence to support his claim that his treatment was the result of his race, color, national origin
or age.

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Regarding allegation 1, Complainant asserted that since March/April 2014, his supervisor has
treated him differently than younger examiners by not adequately reviewing his work, subjecting
him to piecemeal reviews, and not provided him with assistance he needs to succeed prompting
his low production.

The Supervisory Patent Examiner (Caucasian, white American, under 40 years) stated that
during the relevant period he was Complainant’s supervisor. He denied that he treated
Complainant differently than any other examiner by not adequately reviewing his work. The
supervisor stated that he reviewed Complainant’s at the same level as all other junior examiners
in his unit and “since the Complainant was struggling with his applications, I spent even more
time with him trying to help him understand each of the applications he was working on. I met
with him very often, sometimes multiple times in a day.” The supervisor stated, however,
Complainant failed to incorporate the feedback the supervisor gave him.

The supervisor also denied that he had reviewed Complainant’s work in a piecemeal fashion. He
noted that Complainant had a high level of returns because he failed to correctly apply “prior
art”2 and failed to incorporate his comments into the corrections. The supervisor noted that
Complainant’s production was low because the work he turned in was inadequate and of poor
quality and had to be redone. Furthermore, the supervisor stated that during the relevant period,
Complainant’s work quality never really improved.

The Group Supervisor (Caucasian, white American, over 40 years) was Complainant’s second-
level supervisor. The Group Supervisor stated that on April 16, 2014, she met with Complainant
and asked him whether he was getting adequate assistance from his supervisor. According to the
Group Supervisor, Complainant acknowledged he was meeting with the supervisor “every two to
three days or more often. I told him that he needed to make sure he was meeting with
[supervisor] regularly and talking about the work product before turning in the applications for
review.”

The Group Supervisor stated that on one occasion Complainant requested a different supervisor
because he said he was experiencing “piecemeal review.” The Group Supervisor explained
when she looked at the cases Complainant discussed, she determined that “there had not been
piecemeal review. Piecemeal review would have involved a single work product that was not
reviewed all at once. What I observed in the Complainant’s applications was that his supervisor
would review the whole application and return to him, but then the Complainant would
completely redo and submit a whole new work product that required a whole new review.” The
Group Supervisor stated that she and the supervisor continued to encourage Complainant to go
over the draft work products orally with the supervisors before submitting the work.
Furthermore, the Group Supervisor stated that Complainant could have avoided what he referred
to “piecemeal review” if he had followed their suggestions.

2 We note that the term “prior art” (state of the art or background art) is apparently used in patent
law to address all information made available to the public that might be relevant to a patent’s
claims of originality.
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Regarding allegations 2 and 3, Complainant alleged that on April 9 and 24, 2014, his supervisor
spoke to him in a rude and inappropriate manner concerning work review; and on April 9, 2014,
his supervisor told him not to seek assistance from anyone else; and on April 22, 2014, his
supervisor told him that he “didn’t need to work here” when discussing an application.

The supervisor denied using rude and inappropriate speech towards Complainant. The supervisor
stated that on one occasion, he approached Complainant while he was on the phone,
Complainant had informed him that he was talking with a friend about the application and he
attempted to stop Complainant from sharing information with an outside party. The supervisor
stated that it was not until later he learned that the individual on the phone was an Agency
employee.

Complainant also asserted that on April 9, 2014, while he was working with classmates in his
training class, the supervisor came into the classroom and pointed his finger in his face and
spoke to him in a rude manner. The supervisor stated, however, “I never spoke to the
Complainant about not working with his classmates in his lab and I have never stuck my finger
in his face.”

Regarding Complainant’s allegation that during the third week of April, the supervisor told him
he “didn’t need to work at the USPTO,” the supervisor stated, “I do not recall ever making that
statement in the way that it is being quoted.” The supervisor asserted there was an incident
around the same time, “when I indicated to the Complainant that we need to see that an examiner
is progressing, and that there is progression from case to case. If a supervisor doesn’t see
progression, the examiner will not be successful and they will not make it through [his or her]
probationary year.”

In sum, there is nothing in the evidence of record that suggests that the events at issue were in
anyway effected by Complainant’s race, color, national origin of age, rather than concerns on the
part of management about his work performance and development as a new examiner. As such,
he cannot prove a critical element – motive – of his hostile work environment claim.

Termination

A claim of disparate treatment is examined under the three-part 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).
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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).

This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, 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 Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

Here, we find that responsible management witnesses articulated legitimate, non-discriminatory
reasons for the decision to remove Complainant from his position during his probationary period.

The supervisor stated that while he was not the deciding official to terminate Complainant during
his probationary period, Complainant “was not progressing in the work. We did not see much if
any improvement, certainly not the improvements that we were expecting. The decision was
based on the Complainant’s performance in the last few months of his employment.”

The Group Director explained that her decision to terminate Complainant during his
probationary period was based on his inability to incorporate feedback, his inability to work
independently, and his inability to improve his production. The Group Director stated that
another examiner, a named female employee, from Complainant’s November class was also
terminated for poor performance.

The record contains a copy of the September 18, 2014 Notification of Termination During
Probationary Period. Therein, the Group Supervisor placed Complainant on notice that he was
being terminated from his Patent Examiner position during his probationary period because he
failed to meet the requirements of his position. The Group Supervisor stated that based on his
ten months with the Agency, Complainant’s performance “has not progressed at the rate
expected of a new patent examiner. Your progress has been slow and showing no improvement
after consultations with your supervisor. You have not demonstrated that you can efficiently
perform your assigned functions, including planning field of search, conducting searches and
making proper rejects under 35 § U.S.C. 102 (a)(b) and 103 with supporting rationale or
determining how claim(s) distinguish over prior art.” Furthermore, the Group Supervisor noted
that despite training and supervisory guidance, Complainant had not demonstrated “a level of
performance appropriate to your grade level, which indicates little potential for growth and
development as a career employee at the USPTO.”

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After careful review of the record, we conclude that Complainant failed to prove, by a
preponderance of the evidence, that management’s explanations for the disputed actions were a
pretext for discrimination or motivated by discriminatory or retaliatory animus. As already
discussed earlier in this decision, there is no indication that discriminatory factors played any
role in how Complainant was trained, supervised and treated during his tenure with the Agency.
Rather, the weight of the evidence indicates that concerns about his development as an examiner
and poor work performance led to his removal during his probationary period.

CONCLUSION

We AFFIRM the Agency’s finding no discrimination because the preponderance of the evidence
of record does not establish that discrimination occurred.

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.
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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

December 4, 2018
Date