[Redacted], Elvis G., 1 Complainant,v.Wynn Coggins, Acting Secretary, Department of Commerce (Patent and Trademark Office (PTO)), Agency.

Equal Employment Opportunity Commission

Mar 2, 2021

Appeal No. 2020004953 (E.E.O.C. Mar. 2, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Elvis G.,1 Complainant, v. Wynn Coggins, Acting Secretary, Department of Commerce (Patent and Trademark Office (PTO)), Agency. Appeal No. 2020004953 Agency No. 20-56-50 DECISION On September 3, 2020, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an August 4, 2020 final Agency decision (FAD) dismissing his complaint of unlawful 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 Complainant was an applicant for employment with the Agency. On May 4, 2020, Complainant filed an equal employment opportunity (EEO) Complaint 3 (the complaint before us) alleging that the Agency discriminated against him based on his race (African American), age (54), and reprisal for prior protected EEO activity under Title VII when: 1. On February 24, 2020, he was notified that he was not selected for hire for the position of Patent Attorney (Law Clerk), GS-1222-11 at PTO in Alexandria, Virginia, under vacancy announcement PTAB-2019-0015; 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. 2020004953 2 2. On an unspecified date, he was not selected for hire for the position of General Attorney, GS-0905-15 under vacancy announcement OGC-2019-0017.2 Complainant was previously employed by the Agency as a Patent Examiner, GS-1224-09, from September 9, 2013, until his termination during his probationary period on September 4, 2014, for failure to meet the requirements of his position. The Agency specified that he did not demonstrate an ability to respond to feedback, consistently complete work, and behave. In May 2014, Complainant filed EEO Complaint 1 (14-56-22), as amended, alleging discrimination based on his race, sex, and reprisal when, in part, he was terminated. Following an investigation, the Agency issued a FAD finding no discrimination. Ultimately, on March 7, 2017, Complainant filed a civil action 1:17cv261 in the United States District Court for the Eastern District of Virginia, alleging in part discrimination based on his race, sex, and reprisal for EEO activity when he was terminated. On February 28, 2019, the Court upheld the removal and found no discrimination. In so doing, it determined that PTO pointed to significant evidence that he failed to perform his job satisfactorily, including not meeting PTO’s reasonable production expectations, and failed to interact in a professional way with his coworkers. 2019 WL 8918823. Complainant appealed to the United States Court of Appeals for the Fourth Circuit, which on March 12, 2020, affirmed the District Court’s decision. Meanwhile, in August 2019, Complainant filed EEO Complaint 19-56-145 (Complaint 2) alleging that he was discriminated against based on his race and reprisal for EEO activity when, in part, (a) he was not selected for hire for one of many vacancies under announcement CP-2019- 0001 for the position of Patent Examiner (Electrical Engineer), at both the GS-1224-07 and 09 levels (he was notified by separate emails on August 21, 2019, that he was referred to the selecting official but not chosen at either level), and (b) on an unidentified date he was notified 2 We have modified the definition of the EEO complaint to make it more precise. Complainant initially alleged issue 2 in prior EEO Complaint 2 (19-56-145). In a letter partially dismissing Complaint 2, the Agency dismissed this issue under 29 C.F.R. § 1614.107(a)(7) because Complainant did not respond to a written request for information and there was insufficient information to define or accept the issue for investigation. But the Agency advised that if Complainant recently learned or in the future learns he was not selected under vacancy announcement OGC-2019-0017, he may initiate EEO counseling within 45 days of learning. Shortly thereafter the Agency advised Complainant that issue 2 was like and related to claims in Complaint 2, so it was being referred for inclusion as an amendment thereto. But the Agency did not act on the referral. Complaint 2 is now pending before an Administrative Judge (AJ) with the EEOC (Hearing No. 570-2020-01293X). We take administrative notice that on February 19, 2021, in response to the AJ’s initial teleconference order, the Agency advised the AJ of the history of issue 2, represented that issue 2 was included in Complaint 3, and advised the AJ of the instant appeal. The Agency wrote the AJ that if Complainant prevailed on his appeal, it would investigate issue 2. While we did not see any explicit mention by Complainant in his Complaint 3 form or attachments thereto of issue 2, given the above we deem it to be part of Complaint 3. 2020004953 3 that he was not selected for hire for one of many vacancies under announcement CP-2019-0027 for the position of Patent Examiner, GS-1224-07/09 (he was notified by email on January 22, 2020, that he would be referred to the selecting official). There was an EEO investigation of Complaint 2. In an EEO investigative declaration, a Supervisory Human Resources Specialist stated the following. Because Complainant was considered a threat to himself or others after hitting another employee, prior to his separation he was placed on a “building restriction list” barring his access to PTO’s building and computers, which, per practice, became permanent after he was terminated. This list is colloquially known as the “ban and bar list”. Also, there is an ineligible for rehire list. Complainant was ineligible for rehire based on his performance issues. Human Resources and PTO management collaborate on whether an individual remains on the latter list. In an EEO declaration on Complaint 2, the selecting official for the position advertised under announcement CP-2019-0001 stated she determined Complainant was ineligible for rehire based on rehire analysis form, which she provided. The form regarded Complainant’s tenure at PTO and was accompanied with documentation on Complainant’s production. The form contained information completed by an Agency Employee and Labor Relations Specialist indicating Complainant was terminated for performance and inappropriate/disruptive behavior, and comments by his former direct PTO supervisor about his poor production despite coaching and his sending inappropriate emails as recently as May 2019, to examiners in his former unit and the Agency head. The selecting official completed the form by checking off a field recommending that the former examiner (Complainant) not be considered for re-employment and signed and dated it July 29, 2019. Complaint 2 is pending before an AJ with the EEOC. The Agency included in the Complaint 3 file the above two declarations. Citing 29 C.F.R. § 1614.107(a)(1), the Agency dismissed Complaint 3 because it involved the same claim as Complaint 2, i.e., both complaints concern Complainant’s ineligibility for rehire because of his ban and bar from PTO’s campus and performance regardless of the specific vacancy announcement he uses to challenge his ineligibility. Citing 29 C.F.R. § 1614.107(a)(3), the Agency also dismissed Complaint 3 because it formed the basis of a civil action in a United States District Court. The only civil action referenced stemmed from Complaint 1. In essence, the Agency found that because a Court determined Complainant’s termination was proper and nondiscriminatory, his ineligibility for rehire is res judicata. The Agency also dismissed Complaint 3 for abuse of process because, in part, Complainant was filing EEO complaints that regarded the same matter - his ineligibility for rehire. 29 C.F.R. § 1614.107(a)(9). 2020004953 4 ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.107(a)(3) requires the dismissal of a complaint that is the basis of a civil action decided by a United States District Court in which the complainant was a party. The United States District Court upheld Complainant’s September 4, 2014, termination, finding it was nondiscriminatory. We disagree with the Agency’s implicit finding that this means the Court determined Complainant was ineligible for rehire. This was a separate determination by the Agency years later. We also disagree with the Agency that Complaint 3 states the same claim as Complaint 2. Complaints 2 and 3 regard Complainant not being selected for hire under different vacancy announcements. We acknowledge the Agency’s position that both complaints regard the same thing - Complainant being ineligible for rehire. But at this point there has been no decision at the EEO administrative level or by a court finding that Complainant is ineligible, or his ineligibility is nondiscriminatory. If the AJ finds this regarding Complaint 2 and it was upheld on appeal, arguably a subsequent EEO complaint going to Complainant’s continued ineligibility could dismissed under the res judicata doctrine of issue preclusion, so long as circumstances have not changed. But this has not occurred. The Agency failed to show that Complainant misused the EEO process by filing Complaint 3 because the Agency has not shown he is misusing the process to relitigate claims already closed.3 The FAD is REVERSED. ORDER (E0618) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision was issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant’s request.4 3 The Agency found that there was not conflict of interest in the PTO EEO function processing Complaint 3. We agree. 4 If the AJ on Complaint 2 agrees to a motion to amend Complaint 2 with the allegations in Complaint 3, that would obviate this order. 2020004953 5 As provided in the statement entitled "Implementation of the Commission's Decision,” the Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the investigative file and notice of rights, and 3) either a copy of the complainant’s request for a hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did not receive a response from complainant by the end of the election period. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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. 2020004953 6 Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. Filing a civil action will terminate the administrative processing of your complaint. 2020004953 7 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 March 2, 2021 Date