0520160066
04-11-2016
Stan G.,1 Complainant, v. Penny Pritzker, Secretary, Department of Commerce (Patent and Trademark Office), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Stan G.,1
Complainant,
v.
Penny Pritzker,
Secretary,
Department of Commerce
(Patent and Trademark Office),
Agency.
Request No. 0520160066
Appeal No. 0120143184
Agency No. 14-56-09
DECISION ON REQUEST FOR RECONSIDERATION
Complainant timely requested reconsideration of the decision in Stan G. v. Department of Commerce, EEOC Appeal No. 0120143184 (Oct. 9, 2015). EEOC regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision 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).
BACKGROUND
Complainant was hired by the Agency's Patent and Trademark Office as a probationary patent examiner, GS-9 step 5.
Complainant was in the Patent Training Academy for approximately three and a half months before being assigned to a Supervisory Patent Examiner (SPE). As an examiner, he received a case, reviewed it, drafted a recommendation and submitted that draft to the Primary Examiner (PE1) for review. In July 2013, PE1 was on leave and Complainant was assigned to PE2. Under PE2, Complainant began having problems. Complainant sought assistance from the SPE, but believed that he had little or no time for him. In November, Complainant was called into the Group Director's office and was informed that he would be terminated effective November 5, 2013.
On January 23, 2014, Complainant filed an EEO complaint alleging that he was subjected to discrimination based on age when, on November 5, 2013, he was removed from federal service during the probationary period, after he was not assisted in the same way by his supervisor as other coworkers.
At the conclusion of the investigation on the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of his right to receive a final decision from the Agency or to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a final agency decision. On August 8, 2014, the Agency issued a decision on Complainant's complaint finding no discrimination had been established. Complainant appealed to this Commission.
In the previous decision, we dismissed Complainant's appeal pursuant to 29 C.F.R. �1614.403(c). The decision noted that the Agency's final decision was received at Complainant's address of record on August 11, 2014. A review of the final decision reveals that the Agency properly advised Complainant that he had 30 calendar days after receipt of its final decision to file his appeal with the Commission. Therefore, in order to be considered timely, Complainant had to file his appeal no later than September 10, 2014. However, Complainant filed his appeal on September 12, 2014.
In his request for reconsideration, Complainant indicated that he sent an email to EEOC on September 2, 2014, seeking clarification on if he could get an extension or if he should file the appeal. He received an automatic response that did not provide him with the information he needed. Also, based on the automatic response, he expected to receive a more specific response from EEOC. However, he did not receive one. Therefore, he contacted EEOC via phone and based on the information provided, he was told that so long as his appeal was received by September 15, 2014, his appeal would be considered timely. As such, he filed his appeal on September 12, 2014.
In order to merit the reconsideration of a prior decision, the requesting party must submit written argument that tends to establish that at least one of the criteria of 29 C.F.R. � 1614.405(c) is met. The Commission's scope of review on a request for reconsideration is narrow and is not a second appeal. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) (rev. Nov. 9, 1999), at 9-17; see, e.g., Lopez v. Dep't of Agriculture, EEOC Request No. 0520070736 (Aug. 20, 2007). We determine that Complainant's request meets the regulatory criteria of 29 C.F.R. � 1614.405(c). Given that Complainant relied on information he received from EEOC stating that long as his appeal was received by September 15, 2014, his appeal would be considered, we find that the previous decision improperly dismissed his appeal as untimely. Thus, we reopen the previous decision. Because we are reopening our previous decision, we will now consider the merits of the underlying case, as well as arguments the parties originally submitted on appeal below.
In support of his appeal filed from the Agency's final decision, Complainant asserted that he was subjected to discrimination because he was treated less favorably than a similarly situated younger comparator. He stated that although his comparator was a GS-7 while he was a GS-9, they had the same training, pay, job description, and art class. He also indicated that the comparator was later promoted to the GS-9 level while Complainant was still at the Agency. As such, he believed that they should have had similar expectations. Therefore, Complainant asserted that the comparator was in fact similarly situated and treated better based on his age. Further, he then asserted that he established that the Agency's reasons for his removal were pretext for discrimination.
In response, the Agency argued that Complainant failed to establish a prima facie case of age discrimination noting that the comparator, assuming that he was otherwise similarly situated, performed better than Complainant. Therefore, the comparator was not terminated. The Agency also indicated that it provided legitimate, nondiscriminatory reasons for removing Complainant from his position, namely his marginal performance. The Agency noted that Complainant claimed on appeal that the Agency officials were not truthful about him and worked to stonewall him. However, the Agency asserted that Complainant failed to provide evidence to establish that the Agency's reasons were pretext for age discrimination. Therefore, in response to Complainant's appeal, the Agency asked that the Commission affirm its final decision finding no discrimination.
ANALYSIS
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 (EEO MD-110), Chap. 9 - 16. (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").
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie case 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. 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. 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 responsibility 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 Ctr. v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Upon review of the record, we find that the Agency articulated legitimate, nondiscriminatory reasons for removing Complainant during his probationary period. The record indicated that during the course of Complainant's employment, he received only 1s ("Needs Improvement") and 2s ("Meets Expectations") on his periodic evaluations. His performance scores in major quality activities decreased from "2" in his first evaluation to "1." The SPE noted that Complainant continued to have major deficiencies with respect to his work performance. SPE, PE1 and PE2 indicated they provided feedback to Complainant through the course of his employment, but he did not improve his performance. PE1 indicated that she notified Complainant of problems with his work but he did not make the necessary changes. Further, PE1 and PE2 said they spent an excessive amount of time reviewing Complainant's work and his work required several revisions. The Group Director suggested that Complainant transfer to another case area but he failed to make any request. Despite the meetings with the SPE and the Group Director, witnesses indicated that Complainant still did not make progress. As such, the Agency terminated Complainant.
Finding that the Agency has articulated legitimate, nondiscriminatory reasons for its termination action, we turn to Complainant to establish that the Agency's reasons were pretext for discrimination. On appeal, Complainant asserted that management "stonewalled" him. He indicated that other younger examiners were given different types of cases. However, he referred to the Comparator who was a GS-7 while Complainant was a GS-9. Complainant failed to provide any other evidence to support of his claim that the Agency's reasons were pretext for age discrimination. Therefore, we conclude that Complainant has not shown that his termination during his probationary period constituted unlawful age discrimination.
CONCLUSION
After reconsidering the previous decision and the entire record, the Commission finds that the request meets the criteria of 29 C.F.R. 1614.405(c), and it is the decision of the Commission to GRANT the request. We VACATE our pervious decision and AFFIRM the Agency's final decision finding of no discrimination. Because the propriety of the Agency's final order has been addressed herein for the first time, the parties will be given reconsideration rights.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. 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, P.O. Box 77960, Washington, DC 20013. 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 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
April 11, 2016
__________________
Date
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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