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

Equal Employment Opportunity Commission

Apr 12, 2019

2019000197 (E.E.O.C. Apr. 12, 2019)

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

Myung S.,1
Complainant,

v.

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

Appeal No. 2019000197

Hearing No. 570-2017-00477X

Agency No. 16-56-54

DECISION

On October 10, 2018, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s September 5, 2018 final order 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

During the period at issue, Complainant worked as a Legal Instrument Examiner (LIE), GS-
0963-07, at the Agency’s Office of Patent Examination Support Services (OPESS) in
Alexandria, Virginia.

On June 16, 2016, Complainant filed the instant formal complaint. Complainant claimed that the
Agency discriminated against her based on race (African-American), national origin (African-
American), sex (female), color (black), and age (over 40) 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.
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1. on March 8, 2016, she learned through a Freedom of Information Act disclosure that
the position description used by the Agency to review the Legal Examiner Series was
an inaccurate description of her job duties, resulting in her position not being
upgraded; and

2. starting in 2000 and continuing, her job duties are regularly taken away from her by
management and given to other higher graded employees in other series, resulting in
her position not being upgraded.

The record reflects that Complainant’s formal complaint is one of twelve related complaints
filed by the Legal Instrument Examiners (LIEs) which were consolidated for investigation. After
an investigation, Complainant was provided a copy of the investigative file, and requested a
hearing before an EEOC Administrative Judge (AJ). On June 21, 2018, the AJ assigned to the
case consolidated the twelve LIE complaints for adjudication and processing. Thereafter, the AJ
issued a Notice of Intent to Issue a Decision Without a Hearing on June 26, 2018. Both
Complainant and the Agency responded to the Notice of Intent. On August 27, 2018, the AJ
issued a decision by summary judgment in favor of the Agency.

The AJ found the following pertinent undisputed facts were established during the investigation
of the complaint:

Complainant had worked for the Agency for 23 years. During the relevant period, Complainant
worked in OPESS as a LIE.

In 2012, a group of LIEs and the union raised concerns with Agency management about the
classification of the LIE positions. In response, the Director of the Patent and Trademark Office
directed the Chief Administrative Officer to undertake a project to determine whether the LIE
positions were properly graded. The Agency assembled a team to undertake the LIE project.

The first step in the project was to review the Position Description (PD) for the LIEs. The
Agency employed many LIEs in different organizations within the Agency, including but not
limited to OPESS, and the project reviewed the PDs for all of them.

A group of LIEs, recommended by supervisors and the union, was brought together in focus
groups to “enumerate the duties they were actually doing on a daily basis, so as to provide us
with the most accurate information.” The managers and supervisors of the LIEs also participated
in this process to assist in properly identifying the duties of the LIEs. After this effort, a new PD
for the LIEs was developed. The new PD was validated and accepted by a joint
management/labor union working group.

The next step in the review process was to submit the new PD for classification. The Agency
assigned one of its own Classifiers to oversee the classification effort and assigned two contract
employees to perform the work. The two contract Classifiers, each with decades of experience,
were approved by the union.
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The Classifiers worked with the join union/LIE team to ensure that they understood the duties of
the LIE positions. The Classifiers also interviewed the LIEs and observed them as they
performed their duties.

Classification of positions is governed by the U.S. Office of Personnel Management (OPM)’s
Position Classification Standards. Classifiers assess nine factors to determine the appropriate
series and grade of a position.

Based on the data provided to them, the Classifiers determined that the positions were properly
classified in the 0963 series. The Classifiers next examined the proper grade for the LIE
positions. Applying the OPM criteria, the Classifiers concluded that the positions were properly
classified at the GS-7 level.

At the conclusion of the LIE Project, the Classifiers produced a Classification Report to
document their findings. Management and the union presented the conclusions to the LIEs.

The updated GS-0963-07 position description were approved in March 2014.

The AJ noted that the Chief Administrative Officer, as the senior management representative in
the LIE Project, was disappointed that the positions were not graded at a higher level. Even
though he had instructed the Classifiers to give the LIEs as much credit as possible for the work
they performed, they “simply could not grade the positions above the GS-7 level.” This initial
phase took approximately 18 months. Because of the disappointment outcome, the Chief
Administrative Officer initiated a second and third phase to seek ways to expand opportunities
for the LIEs.

The second phase was an attempt to identify alternate paths to higher grades for the LIEs.
Among the options considered was to add new duties the LIE positions. However, given the
nature of the LIE series, that initiative was judged to be impractical.

The third phase of the project was to seek opportunities for the LIEs to learn new skills which
would qualify them for positions in other career fields or job series. Options identified include
the Upward Mobility Program, the After Work Education Program, and career counseling.

The Upward Mobility Program is an Agency-wide program that allows eligible employees, GS-9
and below, to apply for available trainee positions. Successful completion of the program could
allow for reassignment or noncompetitive promotion to the target position. As applied to the
LIEs, the intention was to allow them to make a transition from the 0963 series to the 0301 series
and attain positions at a higher grade.

The After Work Education Program allows union members to be reimbursed up to $10,000.00
each year for education expenses.

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Currently, all LIEs are graded at the GS-07 level. There are Lead and Supervisory LIEs at
higher grades.

Based on this evidence, the AJ concluded no discrimination was established. The Agency issued
its final order, adopting the AJ’s decision.

The instant appeal followed.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to grant summary judgment when he or she finds that
there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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. In rendering this appellate decision, we must scrutinize the AJ’s legal and
factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. §
1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based
on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015) (providing
that an administrative judge’s determination to issue a decision without a hearing, and the
decision itself, will both be reviewed de novo).

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. Such a dispute would
indicate that a hearing is necessary to produce evidence to support a finding that the agency was
motivated by discriminatory animus. Here, however, Complainant failed to establish such a
dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a
reasonable fact-finder could not find in Complainant’s favor.

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

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Here, the undisputed facts fully support the AJ’s determination that the responsible management
officials clearly articulated legitimate, non-discriminatory reasons for its actions. Complainant
did not prove, by a preponderance of the evidence, that these proffered reasons were a pretext
designed to mask discrimination.

Claim 1

Regarding claim 1, Complainant asserted that on March 8, 2016, she learned through a Freedom
of Information Act disclosure that the position description used by the Agency to review the
Legal Examiner Series was an inaccurate description of her job duties, resulting in her position
not being upgraded.

The AJ determined that a review of the record indicates that the new position description, the
classification process and grade level determination was applied to all employees in the LIE
position, except for LEIs with supervisory duties such as Leads and supervisors.

The Chief Administrative Officer (Caucasian white male, American, over 40) stated that at the
conclusion of the LIE project, the Classifiers determined the appropriate grade for the LIE
position “by evaluating the statements related to the work that was being done; working with the
joint union/LIE teams to ensure they understood the work that was being done; and assigning
points to these duties through the lens of the nine factors that the Office of Personnel
Management (OPM) directs be used for the series. Here, unfortunately, the Classifiers
determined the grade to be GS-7. We were disappointed to not have obtained a higher grade for
the LIEs.”

Further, the Chief stated that he instructed the Classifiers “to try to find any way to allow for
growth and advancement in the series, and a higher grade, but they simply could not.”

Complainant asserted that race, national origin, sex, color and age were factors in the decision to
classify the LIE as a GS-07 grade. However, the record is clear that all LIEs without supervisory
duties, regardless of their race, national origin, color, sex or age, were subject to the same new
position description, as well as classification and grade level decisions. The Agency engaged in
an extended process concerning the classification of LIEs across the Agency and the evidence
supports the AJ’s conclusion that Complainant was treated in the same manner as all other LIEs.
As the Chief explained, “[w]e have spent a great deal of resources, in terms of money and time,
in trying to provide upward mobility and opportunity to the LIEs. The classification is highly
technical and does not have anything to do with the alleged bases. It is a rigid, technical HR
process about job duties. The process does not consider who is in the job itself; rather, it
considers only the duties and responsibilities of the position.” In sum, there is simply no
evidence to support a finding that Complainant’s race, national origin, color, sex or age played
any role whatsoever in the development of her position description and classification of her job.

Claim 2

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Regarding claim 2, Complainant alleged that starting in 2000 and continuing, her job duties were
regularly taken away from her by management and given to other higher-graded employees in
other series resulting in her position not being upgraded.

Again, the record fully supports the AJ’s conclusion that all the LEIs were treated in the same
manner regarding duties being assigned and then taken away. The evidence shows that LEIs
were upgraded from GS-05 to GS-07 when they were given more duties, but they were not
downgraded when a decision was made to later remove some duties. The evidence simply does
not support a finding that Complainant was treated less favorably because of her race, national
origin, color, sex or age.

CONCLUSION

In conclusion, for the reasons stated above, we AFFIRM the Agency’s final order, implementing
the AJ’s decision without a hearing, finding no discrimination.2

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),

2 On appeal, Complainant does not challenge the July 12, 2016 partial dismissal issued by the
agency regarding three other claims (that she was discriminated against on the bases of race,
national origin, sex, color, and age when any and all claims referenced by her about the
classification/title of other positions; any and all claims referenced by her regarding the change
of the LIE job series without changing the GS level; and any or all claims against the union and
its officers that are raised or referenced by her). Therefore, we have not addressed these issues in
our decision.

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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).

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.

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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

April 12, 2019
Date