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

Equal Employment Opportunity Commission

Nov 13, 2018

0120171812 (E.E.O.C. Nov. 13, 2018)

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

Nida R.,1
Complainant,

v.

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

Appeal No. 0120171812

Agency No. 155605

DECISION

On April 27, 2017, 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
March 24, 2017, final decision 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. For the following reasons, the Commission AFFIRMS
the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Patent Examiner, GS-
1224-11 at the Agency’s Patents, Technology Center 2100 facility in Alexandria, Virginia.

On January 5, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the basis of reprisal for prior protected EEO activity (participation in a November
2013 sexual harassment investigation) under Title VII of the Civil Rights Act of 1964 when: 1)
Complainant was suspended for misconduct for 14 days from October 5, 2014 through October
18, 2014; and 2) the Agency gave her a rating of 1 out of 10 on the customer service element of
her 2015 mid-year review.

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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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 requested a hearing but
subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to
29 C.F.R. § 1614.110(b).

On March 24, 2017, the Agency issued a final decision, finding no discrimination. In so finding,
the Agency determined that there was no evidence of pretext regarding the suspension because the
Deciding Official issued the decision before he became aware of Complainant’s prior EEO
activity. Additionally, the Agency found that management officials complied with all applicable
policies with respect to discipline and took into account all of the required factors in imposing
discipline. The Agency concluded that Complainant failed to prove that the Agency subjected her
to discrimination as alleged.

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”).

On appeal, Complainant asserts that she has never adhered to the Agency’s time and attendance
procedures since she joined the Agency in August 2017. Complainant contends that prior to her
protected EEO activity, she could frequently work late into the night and submit retroactive leave
requests without any problems. She alleges that after she participated in a sexual harassment
investigation in November 2013, her supervisors retaliated against her by closely scrutinizing her
time and attendance, denying her requests for leave, removing her from the Agency’s flexible work
schedule program, and setting her up to fail.

In response, the Agency notes that while Complainant challenges the scope of seriousness of her
misconduct, she has not disputed the allegations of misconduct. The Agency urges the
Commission to reject Complainant’s argument that she should not be disciplined for misconduct
because she had previously engaged in similar misconduct prior to her protected activity.

Complainant may establish a prima facie case of reprisal by showing that: 1) she engaged in a
protected activity; 2) the Agency was aware of the protected activity; 3) subsequently, she was
subjected to adverse treatment by the Agency; and 4) a nexus exists between the protected activity
and the adverse treatment. See Whitmire v. Dep’t of the Air Force, EEOC Appeal No. 01A00340
(Sept. 25, 2000). A nexus may be shown by evidence that the adverse treatment followed the
protected activity within such a period and in such a manner that a reprisal motive is inferred.
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Clay v. Dep’t of the Treasury, EEOC Appeal No. 01A35231 (Jan. 25, 2005). Once Complainant
establishes a prima facie case, the burden then shifts to the Agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248,
253 (1981). Once the Agency has met its burden, Complainant bears the ultimate burden to
persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of
a prohibited reason. St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993).

The Commission has stated that adverse actions need not qualify as “ultimate employment actions”
or materially affect the terms and conditions of employment to constitute retaliation. EEOC
Compliance Manual Section 8: Retaliation, No. 915.003, at 8-15 (May 20, 1998); see Burlington
N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) (finding that the anti-retaliation provision
protects individuals from a retaliatory action that a reasonable person would have found
“materially adverse,” which in the retaliation context means that the action might have deterred a
reasonable person from opposing discrimination or participating in the EEO process).

The record reflects that the Agency articulated legitimate, nondiscriminatory reasons for
suspending Complainant for a period of 14 days from October 5, 2014 through October 18, 2014.
In the final decision, the Agency cited Complainant’s repeated absences without leave (AWOL)
and failure to follow time and attendance polices as the reasons for her suspension. The Agency
also cited to Complainant’s refusal to schedule interviews with attorneys after 4:00 p.m., as the
basis for the poor rating in the element of stakeholder interaction.

Complainant has failed to show that the Agency’s legitimate, nondiscriminatory reasons for
issuing her a 14-day suspension were pretextual. While we acknowledge Complainant’s argument
that the Agency previously allowed her to disregard time and attendance policies without
discipline, we note that she not only continued to disregard time and attendance policies after
engaging in EEO activity, but also began taking leave without authorization for extended periods.2
In her written and oral responses to the Notice of Proposed Suspension, Complainant admitted to
her misconduct.3 We agree with the Agency that her extended AWOL periods and failure to
communicate with management constitute independent bases for discipline.

Although Complainant asserts on appeal that the Deciding Official was aware of her prior EEO
activity, we are disinclined to find merit in such argument. While we acknowledge that the
Deciding Official was in the same business unit as Complainant, the record reflects that he was
the Associate Deputy Commissioner for a different Technology Center. Complainant has not
adduced any evidence to show that the Deciding Official was aware of her prior EEO activity.

2 She was not AWOL for any period prior to her November 2013 EEO activity.

3 During her oral response, Complainant admitted to being AWOL for 109 hours in January 2014.

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The record also does not support Complainant’s contention that she was treated less favorably than
other similarly-situated employees. We note that Complainant’s supervisor averred during the
investigation that he removed a similarly-situated employee (who had no prior EEO activity) from
the Agency’s flexible work schedule program after that employee admitted to timekeeping
misconduct. Thus, the record suggests that she was treated in the same manner as other similarly
situated employees.

Furthermore, we agree with the Agency’s finding of no discrimination with regard to claim (2).
Although the record reflects that Complainant returned most phone calls in a timely manner, she
consistently refused her supervisor’s directive to schedule interviews with applicants after 4:00
p.m. In refusing her supervisor’s directive, Complainant averred that discouraging applicants from
calling after 4:00 p.m. is the best strategy because they will eventually adjust to her schedule.
Complainant has not demonstrated that the Agency’s articulated reason for assessing a low mid-
year performance evaluation in the element of stakeholder interaction was a pretext for
discrimination. Consequently, the Commission finds that Complainant has failed to show that the
Agency’s explanation was a pretext for discrimination.

CONCLUSION

We AFFIRM the Agency’s decision finding no discrimination.

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.
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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. 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

November 13, 2018
Date