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

Equal Employment Opportunity Commission

Jan 25, 2021

Appeal No. 2019000641 (E.E.O.C. Jan. 25, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Leonarda S.,1 Complainant, v. Wilbur L. Ross, Jr., Secretary, Department of Commerce (Patent and Trademark Office), Agency. Request No. 2020005507 Appeal No. 2019000641 Hearing No. 570-2017- 01174X Agency No. 01-56-37 DECISION ON REQUEST FOR RECONSIDERATION Complainant requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2019000641 (August 19, 2020). EEOC regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). During the relevant time, Complainant worked as a Patent Examiner at the Agency’s Technology Center in Arlington, Virginia. Believing that she was subjected to discrimination and harassment based on her race (African-American), sex (female), and in reprisal for prior protected EEO activity, Complainant filed a formal EEO complaint on May 18, 2001. While the case was pending before an EEOC Administrative Judge (AJ), the Agency filed a motion for summary judgment. Over Complainant’s objections, the AJ granted the motion and issued a decision without a hearing. 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. 2020005507 2 In her September 10, 2018 decision, the AJ found no discrimination. The Agency issued a decision fully implementing the AJ’s decision. Complainant filed an appeal with the Commission. In the prior decision, the Commission agreed with the finding of no discrimination. See EEOC Appeal No. 2019000641 (August 19, 2020). As an initial matter, the Commission found that the AJ properly issued a decision without a hearing as no genuine issues of material fact existed. See id. Turning to the merits of the case, evening assuming that Complainant had presented a prima facie case, the Commission found that the Agency had presented legitimate, non-discriminatory reasons for its actions. See id. After setting forth each of the proffered reasons, the burden returned to Complainant to establish the reasons were pretextual. See id. The Commission concluded that Complainant failed to do so. See id. Further, the Commission found that she did not provide any evidence that any of her protected basis were considered by the Agency. See id. As for her claim of unlawful harassment, the Commission found that the alleged events were not sufficiently severe or pervasive to have established a hostile work environment. See id. Complainant filed the instant request. In her request Complainant, through her attorney, argues that our earlier decision applied the incorrect standard and analytical framework in upholding the AJ’s summary judgment decision. In so arguing, Complainant cites the language used in the “Issue Presented” portion of the decision.2 According to Complainant, the appropriate standard was whether there were disputed issues of material fact. Even a cursory review of our decision in EEOC Appeal No. 2019000641, however, reflects that this standard was referenced and applied in concluding that the AJ properly granted the motion for a decision without a hearing. Further, Complainant argues that the Commission improperly upheld the summary judgment decision by “weighing assertions by the Agency over evidence supporting Complainant.” In the pages that follow, Complainant reiterates her version of the events in each claim and simply concludes “so there are disputed issues of material fact”. However, as previously determined, in many instances the Agency does not dispute Complainant’s version of events. Where there is a dispute as to a fact, for example in claim (8), whether Complainant’s supervisor threw a stack of papers in her face or the papers slipped and fell in her face, it is not a “material”. Even if the papers were thrown, as Complainant alleged, she has not shown any connection to this incident and her race, sex, or prior EEO activity. In another instance, claim (6), Complainant points to purported inconsistencies between testimony from her first-line supervisor and second-line supervisor regarding whether mechanical engineers could receive accelerated promotions. As noted by the Agency, the reason Complainant was not issued an accelerated promotion was based on her performance. Consequently, the alleged dispute did not concern a “genuine issue of material fact”. In sum, the evidence of record fully supported the AJ’s determination that Complainant did not establish any connection between the Agency’s actions and her protected bases. The instant request, which largely repeats the contentions made on appeal, fails to even argue that a nexus exists between the Agency’s actions and Complainant’s race, sex, and prior EEO activity. 2 “The issue presented in this case is whether the AJ erred in finding that Complainant was not subjected to discrimination and/or harassment with respect to a series of work place incidents.” 2020005507 3 There is no evidence in the record to support Complainant’s belief that the Agency’s actions were motivated by discrimination. Even if Complainant were able to establish a prima facie case, the Agency provided legitimate, non-discriminatory reasons, which Complainant was ultimately unable to show were pretext for discriminatory animus. In order to merit the reconsideration of a prior Commission decision, the requesting party must submit written argument or evidence which tends to establish that at least one of the criteria of 29 C.F.R. §1614.407(c) is met. The Commission's scope of review on a request for reconsideration is narrow. Lopez v. Department of the Air Force, EEOC Request No. 05890749 (September 28, 1989). A request for reconsideration is not merely a form of a second appeal. Regensberg v. USPS, EEOC Request No. 05900850 (September 7, 1990). Instead, it is an opportunity to submit newly discovered evidence, not previously available; to establish substantive error in a previous decision; or to explain why the previous decision will have effects beyond the case at hand. Lyke v. USPS, EEOC Request No. 05900769 (September 27, 1990). After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 2019000641 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610) This decision of the Commission is final, and there is no further right of administrative appeal from the Commission’s decision. 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. 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. 2020005507 4 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 January 25, 2021 Date