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

Equal Employment Opportunity Commission

Aug 19, 2020

2019000636 (E.E.O.C. Aug. 19, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Valery G.,1 Complainant, v. Wilbur L. Ross, Jr., Secretary, Department of Commerce (Patent and Trademark Office), Agency. Appeal No. 2019000636 Hearing No. 570-2017-00277X Agency No. 16-56-73 DECISION On November 5, 2018, 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 September 12, 2018, final order 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order which fully implemented the Equal Employment Opportunity Commissions Administrative Judge’s (AJ) decision which determined that Complainant did not demonstrate that she was subjected to discrimination. ISSUES PRESENTED The issue presented in this case is whether the Agency erred in implementing the AJ’s decision which found that Complainant did not show that she was subjected to discrimination with regard to the Agency’s job classification of her position, new position description, and GS-7 grade level. 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. 2019000636 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Legal Instruments Examiner (LIE) at the Agency’s Office of Patent Examination Support Services facility in Alexandria, Virginia. Complainant was one of twelve employees that filed complaints brought by the LIEs regarding the classification of their positions, their position description and their grade level. Complainant argued that the Agency’s investigation regarding the classification of the LIE position, the position description and GS-7 grade level was inaccurate and was not based on the Office of Personnel Management (OPM) mandates, which resulted in Complainant and the other LIEs not being upgraded to a higher GS level. On May 20, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), color (Black), and age (over 40) when: 1. On March 1, 2016, Complainant learned through information from 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, Complainant's 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. 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 timely requested a hearing. The AJ consolidated the twelve individual complaints for investigation and possible hearing.2 The AJ determined sua sponte that the complaint did not warrant a hearing and over Complainant's objections, issued a decision without a hearing on September 10, 2018. The record showed that the LIEs believed that the Agency had incorrectly classified their position at the GS-7 level when they should have been graded at the GS-9 level. A joint investigation was conduct by the Agency and the union. Contract investigators spoke with the LIEs, and examined the tasks performed by them. At the completion of the investigation, a new position description was created, and the LIEs continued to be classified at the GS-7 grade level. Complainant argued that the position description that was developed by the Agency and the union did not reflect the complexity of the LIE position. The GS-7 grade level was improper, as well as the methods used to determine the position description. 2 The AJ issued separate decisions for each complaint finding no discrimination with regard to all of the complaints. Seven of the twelve employees filed an Appeal with the Commission. The Commission has thus far issued five of the seven decisions, (EEOC Appeal Nos. 2019000195, 2019000197, 2019000279, 2019000196, and 2019000637), all finding no discrimination. The last complaint, EEOC Appeal no. 2019000639 is currently pending 2019000636 3 The AJ found however that Complainant did not show how her assertions were linked to her protected bases, other than her argument that most of the LIEs were African American, and she was over the age of 40. This standing alone, the AJ determined. was not evidence that the Agency’s reasons were pretext for discrimination, as the classification of the new position description and grade level was applied to all employees in the LIE position, except those with supervisory duties, regardless of race, sex, disability, age or prior protected EEO activity. Further, with respect to Complainant’s contention that the LIEs had their duties taken away, the Agency explained that the duties were given and then taken away years before 2012 because the LIEs were not performing them satisfactorily. The AJ noted that these duties were the reason why the LIEs were upgraded from a GS-5 to GS-7, but the LIEs were not downgraded after the duties were removed. The AJ found that Complainant did not demonstrate that the Agency’s reasons regarding the classification, new position description, GS-7 grade level, and the taking away of duties were pretext for discrimination, as Complainant did not provide any evidence that the Agency’s actions were linked to her protected bases. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. CONTENTIONS ON APPEAL On appeal, Complainant, contends among other things, that the Agency discriminated against her based on race, fragmented her complaint by not giving her a workable performance description, and did not follow the OPM mandate to reclassify jobs in accordance with OPM policy. Complainant asserts that she was harmed for many years as she performed automated duties and extensive examinations that should have warranted a GS-9. Complainant maintains that no real steps were taken to produce an accurate performance appraisal. In response, the Agency contends, among other things, that contract classifiers worked with a joint union/management team and observed the LIEs in the performance of their duties. Applying the OPM’s position classification standards, the classifiers concluded that the LIE positions were properly classified in the 0963 series at the GS-7 grade. The Agency maintains that Complainant, while articulating that she wanted to be graded at a higher level, did not provide any evidence that the AJ erred in finding that the Agency set forth legitimate reasons and Complainant failed to show that the reasons were pretext for discrimination or that discriminatory animus was involved. ANALYSIS AND FINDINGS Standard of Review 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 2019000636 4 MD-110), at Chap. 9, § VI.B. (Aug. 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). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (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”). We first determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute. Here, Complainant contends that there are material facts at issue regarding whether the classification of the position, the job series, and grade of the position were correct. We find that there are no material facts at issue as the facts she identified as being in dispute related to matters unrelated to issues presented by her complaint. The issues identified by Complainant are related to the application of the regulations governing the OPM position evaluation process and are immaterial to the issues of pretext presented here. As noted below, Complainant adduces no evidence of pretext. Accordingly, we find that there are no issues that required a hearing. 3 3 Complainant argued that there were issues regarding whether the Agency’s investigation used OPM’s 1992 mandate for reclassification, or if OPM’s 1997-2002 mandate which ordered reclassification of jobs, based on duties, responsibilities and skills was used. These issues are immaterial to the question of whether the Agency’s explanation for its action was a pretext designed to conceal discriminatory animus. 2019000636 5 Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, 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 Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to the Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is her obligation to show 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); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983). Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that even if we assume arguendo that Complainant established a prima facie case of discrimination as to all bases, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely that the duties actually performed by LIEs were properly graded as GS-7 and would not support the GS-9 level sought by Complainant. According to the Agency, this conclusion was reached after an extensive investigation into the duties actually performed by incumbents in the LIE position and an analysis of how those functions should be rated under applicable OPM-issued criteria. All of the information supporting the conclusion that GS-7 was the appropriate grade for the LIE position was disclosed to Complainant and is contained in the record. Report of Investigation at 312-480. The Factor Evaluation Statement setting out the evaluators’ final analysis is attached as an exhibit to Complainant’s summary judgment opposition submitted to the AJ. We find that, other than Complainant’s conclusory statements, she has not provided any evidence which demonstrates that the Agency’s reasons were pretext for discrimination. Complainant provided no evidence other than her beliefs that the position should have been rated at a higher GS level. She does not challenge the factual underpinnings of the position evaluation process or the procedures employed in the course of that process. Complainant did not provide any evidence which showed that the Agency’s actions were based on discriminatory factors or that discriminatory animus was involved in the Agency’s decision. CONCLUSION Accordingly, we AFFIRM the Agency’s final order which found that Complainant did not demonstrate that she was subjected to discrimination. 2019000636 6 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. 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. 2019000636 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 August 19, 2020 Date