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

Equal Employment Opportunity Commission

Dec 13, 2018

0120171133 (E.E.O.C. Dec. 13, 2018)

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

Foster M.,1
Complainant,

v.

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

Appeal No. 0120171133

Agency No. 16-56-43

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s January 6, 2017,
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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. § 791 et seq. For the reasons which follow, the Commission AFFIRMS, as
modified, the Agency’s decision.

ISSUES PRESENTED

Whether the Agency’s dismissal of one of the claims of the complaint was proper and whether
Complainant has proven by a preponderance of the evidence that the Agency subjected him to
unlawful harassment.

BACKGROUND

At the time of the complaint, Complainant was a Patent Examiner, GS-9, in the Agency’s
Technology Center 2100, U.S. Patent and Trademark Office (USPTO), Art Unit 2162 in
Alexandria, Virginia. Complainant began working as a Patent Examiner in June 2014.

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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He apparently began experiencing work-related stress in January 2015. Complainant filed a
workers’ compensation claim on February 9, 2015. He was cleared to return to work on April 13,
2015, but he submitted Family Medical Leave Act (FMLA) documentation that indicated that he
would be incapacitated from April 13, 2015 through July 6, 2015. Complainant was granted 480
hours of FMLA leave. On July 30, 2015, Complainant filed a second workers’ compensation
claim for injuries that he suffered on July 13, 2015. Complainant was placed in a provisional
Office of Workers’ Compensation Programs (OWCP) “continuation of pay” status. On September
17, 2015, the OWCP denied the July 30, 2015 claim. At the conclusion of the FMLA period,
Complainant did not return to work. Complainant has not performed any work for the Agency
since February 2015.

Complainant initiated contact with an EEO Counselor on March 8, 2016. On April 9, 2016, he
filed a discrimination complaint. On May 4, 2016, the Agency issued an Amended Notice of
Investigation and Partial Dismissal (Amended Notice) (Exhibit C-3). The claims of the complaint
were defined as:

1. Whether Complainant was subjected to discrimination on the basis of reprisal when on an
unspecified date, he was threatened with removal from federal service when an Employee
Relations (ER) Specialist told him to “drop the hostile work environment [sic] because you
will soon be more than year on leave away from work, and if you don’t drop the hostile
work environment, the Agency will soon initiate proceedings to remove you.”
2. Whether Complainant was subjected to a hostile work environment on the bases of race
(African American), national origin (St. Vincent and the Grenadines), disability, and
reprisal when he was contacted by members of the Agency’s Office of Human Resources
regarding his claims of a hostile work environment.

In the Amended Notice, the Agency dismissed claim 2 for failure to state a claim. The Agency
stated that the allegations of a hostile work environment were neither severe nor pervasive enough
to state a claim of harassment. The Agency alternatively dismissed the claim on the grounds that
Complainant was alleging dissatisfaction with the processing of a prior complaint that was not
separately actionable.

At the conclusion of 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 EEOC Administrative Judge
(AJ) or the issuance of an Agency decision. Complainant requested an Agency decision. In
accordance with Complainant’s request, the Agency issued a decision pursuant to 29 C.F.R.
§ 1614.110(b) and concluded that it had not discriminated against Complainant.

In its decision, the Agency reiterated its dismissal of claim 2. Regarding claim 1, the Agency
found that Complainant failed to prove that the ER Specialist had made the statement, explaining
that the ER Specialist denied having made the statement. Accordingly, the Agency concluded that
Complainant failed to establish a prima facie case of reprisal. Having so concluded, the Agency
decided that it did not need to address whether the Agency had articulated a legitimate,
nondiscriminatory reason for its action.
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CONTENTIONS ON APPEAL

Complainant argues that the dismissed claim was part of an overall pattern of harassment. He
also argues that the Agency discriminated against him on the basis of race, color, national origin,
age and subjected him to a pattern of harassment.

The Agency urges that it decision be affirmed. It maintains that its dismissal of claim 2 was proper
because it failed to state a claim of harassment and that Complainant failed to establish a prima
facie case of reprisal.

ANALYSIS AND FINDINGS

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 Chapter 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”).

Upon review, we affirm the Agency’s finding of no discrimination.

In claim 1, Complainant alleged discrimination based on reprisal. Specifically, in a reprisal claim,
a complainant may establish a prima facie case of reprisal by showing that: (1) he engaged in a
protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he was
subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity
and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340
(Sept. 25, 2000).

Adverse actions need not qualify as “ultimate employment actions” or materially affect the terms
and conditions of employment to constitute retaliation. Lindsey v. U.S. Postal Serv., EEOC
Request No. 05980410 (Nov. 4, 1999). Instead, claims based on statutory retaliation clauses are
reviewed with a broad view of coverage. Under Commission policy, a complainant is protected
from any retaliatory discrimination that is reasonably likely to deter a complainant or others from
engaging in protected activity. Maclin v. U.S. Postal Serv., EEOC Appeal No. 0120070788 (Mar.
29, 2007).

The Commission has held that certain actions may constitute per se reprisal. See Binseel v. Dep't
of the Army, EEOC Request No. 05970584 (Oct. 8, 1998). Statements that on their face have a
chilling effect on participation in the discrimination process could constitute reprisal.

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See EEOC’s Enforcement Guidance on Retaliation at II.B.1.(“[r]etaliation expansively reaches
any action that is ‘materially adverse,’ meaning any action that might well deter a reasonable
person from engaging in protected activity”); Sofia W. v. Dep’t of Veterans Aff., EEOC Appeal
No. 0120151077 (May 26, 2017) (complainant had not shown that she was dissuaded from
processing her complaints as a result of comments made by EEO Specialist); Charlie K. v. Equal
Employment Opportunity Comm., EEOC Appeal No. 0120142315 (Jan. 24, 2017).

Complainant stated in his affidavit that the ER Specialist called him in January 2016 explaining
that he was investigating his claim of a hostile work environment that Complainant had made to
the Agency’s Office of Equal Employment Opportunity and Diversity (OEEOD). Complainant
also stated that when the ER Specialist called him, the ER Specialist told him that he should drop
his claim of harassment because he was close to finishing his probationary period and close to one
year since he had been out sick from work which could affect his workers’ compensation claim,
and that the Agency might initiate disciplinary action against him to terminate his employment.

Regarding claim 1, the alleged threat claim, we conclude that Complainant failed to present a
prima facie case by establishing that a threat was in fact made by the ER Specialist. While
establishing a prima facie case is not onerous, Complainant has failed to establish that the conduct
that he alleges was discriminatory even occurred.

In his affidavit, the ER Specialist, who began working for the USPTO in 2014 in ER, Office of
Human Resources, explained that he was not assigned to investigate any harassment. He denied
making a statement or comment attempting to convince Complainant to drop any harassment
claim. The ER Specialist explained that around February 2015, he received a request from
Complainant’s supervisor regarding Complainant’s absences from work. He stated that his several
conversations related to Complainant’s need to take time off from work due to work-related stress.
He also explained that he tried to assist Complainant with information on medical options that he
had as an employee.

Complainant has not produced additional evidence to support his allegations. Complainant bears
the burden to prove that the statements were made. Moreover, we have held that when the evidence
is at best equipoise, a complainant fails to meet that burden. See Harford v. Dep’t of the Army,
EEOC Request No. 0520140513 (July 24, 2014); Brand v. Dep’t of Agriculture, EEOC Appeal
No. 0120102187 (Aug. 23, 2012) (complainant failed to establish that his coworker had made
offensive comment in a “he said, she said” situation where complainant requested an agency
decision and an administrative judge did not make credibility determination). Also, Complainant
chose not to request a hearing. Accordingly, the Commission does not have the benefit of an AJ’s
credibility determinations after a hearing. Therefore, the Commission can only evaluate the facts
based on the weight of the evidence presented. Marielle L. v. Soc. Sec. Admn., EEOC Appeal No.
0120162299 (Mar. 29, 2018); Lore v. Dep't of Homeland Security, EEOC Appeal No. 0120113283
(Sept. 13, 2013) (complainant failed to establish that witnesses made false statements where he
withdrew his request for a hearing and credibility determinations were unable to be made).

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Complainant has also made no showing that even if the statements were made by the ER Specialist,
it had a chilling effect on him by dissuading his participation in protected activity.

The Commission also notes that even if the ER Specialist called Complainant to investigate the
harassment claim, the allegation would not state a claim. The Agency has a duty to investigate
claims of harassment. See Lelah T. v. U.S. Postal Serv., EEOC Appeal No. 0120150363 (Feb. 8,
2017) (when agency becomes aware of alleged harassment, it has a duty to investigate), req. to
reconsider denied, EEOC Request No. 0520170239 (May 25, 2017); Complainant v. Dep’t of
Health and Human Svcs., EEOC Appeal No. 0120123338 (Sept. 11, 2014); Rogers v. Dep’t of
Defense, EEOC Request No. 05940157 (Feb. 24, 1995) (claim which arose from agency’s
investigation of harassment failed to state claim because agency legally obligated to investigate a
claim of harassment).

Regarding claim 2, the Agency dismissed the claim on the grounds that it failed to state a claim of
harassment. The incidents of alleged harassment in claim 2 concern allegations Complainant made
involving a Human Resources (HR) Specialist.2 Complainant stated that when the HR Specialist
called him, she misled him into believing that she was from the Agency’s Office of Equal
Employment Opportunity and Diversity (OEEOD) and was investigating his hostile work
environment claim. Subsequently, he found out that she did not work with the OEEOD and
therefore he stopped cooperating with her. We find that claim 2 does not rise to the level of stating
a claim of a hostile work environment.3 As noted earlier, an agency’s internal investigation into a
harassment claim, without more, does not state a claim.

Complainant, as with claim 1, failed to establish that the actions occurred as he alleged. Even if
Complainant showed that the conduct occurred as he alleged, Complainant has also failed to show,
beyond assertions, that the Agency’s actions were unlawfully based on his protected groups or
reprisal. The HR Specialist stated in her affidavit that she began corresponding with Complainant
by email regarding a harassment claim about which Complainant had written to his congressman.
She stated that she emailed Complainant that she was investigating the claim he had brought to the
attention of his Congressman. They exchanged several emails to schedule a meeting to discuss the
claim. A February 9, 2016 email from the HR Specialist to Complainant reveals that she
introduced herself to him as an HR Specialist. She also explained that she had received his hostile
work environment complaint that he had sent to his senator and that she wanted to schedule a
meeting with him. We find that it was the congressional inquiry that caused an investigation to be
opened and that the Agency had a duty to investigate.

2 Complainant’s claims concerning leave, reasonable accommodation, and removal issues are not
before us in this complaint and will not be addressed in this appeal.
3 An individual incident of alleged discrimination, standing alone, may not state a claim. However,
when one incident is considered together with other incidents of alleged harassment, the complaint
may state a claim. Therefore, claims should not be analyzed on a piecemeal basis. See Meaney
v. Dep’t of the Treasury, EEOC Request No. 05940169 (Nov. 3, 1994) (an agency should not
ignore the ““pattern aspect” of a complainant's claims and define the issues in a piecemeal manner
where an analogous theme unites the matter complained of).
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We find that Complainant has failed to show that the Agency discriminated against him on any
basis.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed or referenced herein, the Agency’s decision is AFFIRMED.

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 13, 2018
Date