Geoffrey R. Akers, Complainant, v. Carlos M. Gutierrez, Secretary, Department of Commerce, (Patent and Trademark Office), Agency. Appeal No. 01200637231 Agency No. 04-56-86 DECISION Complainant filed an appeal from the agency's May 22, 2006 final decision concerning his 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. The appeal is accepted pursuant to 29 C.F.R. § 1614.405(a). During the relevant time, complainant was employed as a Primary Patent Examiner, GS-1224-14, at the agency's Technology Center 3600, Commissioner for Patents, in Alexandria, Virginia. 2 On December 1, 2004, complainant filed the instant formal EEO complaint. Therein, complainant claimed that he was the victim of unlawful employment discrimination on the bases of race (American Indian/Alaskan Native), 3 sex (male), and age (D.O.B. 7/28/46) when, on August 18, 2004, he was not selected for the position of Supervisor Patent Examiner (SPE) under Vacancy Announcement No. PTO-04-078. At the conclusion of the investigation, complainant was provided with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing before an AJ. The AJ issued an Order which denied complainant's hearing request and remanded the case to the agency for a final decision, after the AJ determined that complainant repeatedly failed to respond to the agency's attempts to depose him, and failed to comply with the AJ's December 21, 2005 Order to appear at his deposition. The agency subsequently issued the instant final decision on May 22, 2006, finding no discrimination. In its final decision, the agency found that complainant established a prima facie case of sex and age discrimination. However, the agency found that management articulated legitimate, non-discriminatory reasons for complainant's non-selection. The agency found that complainant did not establish that, more likely than not, management's articulated reasons were a pretext to mask unlawful discrimination. A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie 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. See 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. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the 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. See St. Mary's Honor Center 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. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). The agency articulated legitimate, non-discriminatory reasons for its actions. Eight candidates, including complainant, were considered as "qualified" for the position of Supervisory Patent Examiner (SPE), GS-1224-14. A three-member ranking panel reviewed the application packages of all candidates, and rated them. The panel certified five out of the eight candidates to the Selecting Official (SO) as being promotion-eligible based on their rating scores. Complainant was not one of the five certified candidates. The record reflects that complainant was ranked sixth with an overall score of 48 points, while the selectee was ranked second with an overall score of 66 points. The record contains an affidavit from one of the three panelists (P1). P1 stated that there were five "Crediting Plan Evaluation Factors" as follows: (1) Ability to Supervise and Perform Administrative Duties, Including Effectively Motivating, Leading and Training Patent Examiners and Other Employees; (2) Knowledge of Scientific and Technical Matters Associated with the Patent Process in the Designated Art Area; (3) Knowledge of Legal Matters Associated with the Patent Process in the Designated Art Area which includes Demonstrated Competence on Examination Practice and Procedure, or Comparable Experience in the Patent Field; (4) Knowledge of Patent and Trademark Office Strategic Direction, Short and Long Term Goals, Policies and Programs and their Impact on the Organization; and (5) Ability to Communicate Effectively, Orally and in Writing. P1 stated that complainant received 15 points for the first factor, which was the midrange of the "Highly Satisfactory" level. P1 further stated that, in his application, complainant provided seven bullets in the first factor labeled as (a) - (g). P1 stated that regarding bullet (a), he found that the work complainant performed was "no more than what is required of the typical primary examiner." P1 further stated that while complainant provided a list of prior work experience and activities outside of the agency, he determined that his prior work experience fell under the highly satisfactory level. P1 stated that complainant's write-up was insufficient "in demonstrating evidence of experience in supervising, performing administrative duties, motivating and training." P1 stated that bullets (f) and (g) showed no specific supervisory experience and abilities, performance of administrative duties or accomplished results. P1 stated that complainant's mentoring experience listed in bullet (f) was "broad and no examples were provided." With respect to complainant's assertion that he worked as an Acting Supervisory Patent Examiner and trained several junior examiners in the art unit, P1 stated this was not indicated on the application materials submitted by complainant. Regarding complainant's assertion that he was a professor and mentor at seven universities, P1 stated that in his write-up complainant only mentioned two universities (bullets (f) and (g)). Regarding complainant's assertion that he was a member of two professional organizations and was listed in the International Professionals Directory, P1 stated that this information was not included in his application under the first factor. Regarding the second factor, P1 stated that complainant received 11 points, which was the base level of "Outstanding." P1 further stated that "this score was appropriate for the following reasons: [Complainant's] application merely stated that he had a number of degrees, and in particular, a Master of Science in Nuclear Engineering. Also, he broadly indicated that he worked in the design of some reactors for submarines for the Navy." P1 stated that complainant's degree in Nuclear Engineering was sufficient to place him in the "Outstanding" level. P1 stated however complainant's write-up under the second factor "lacked any evidence of 'providing guidance and advice on scientific or technical issues' in this area or 'recognition by others' for his expertise and competency in the patent field, other than a Masters degree." With respect to complainant's assertion that he designed methods for Master Level Examinations, taught at a technical seminar, and had delivered sixteen scientific papers, P1 stated that none of this information was in his application under the second factor. Regarding the third factor, P1 stated that complainant received 8 points, which was the midrange of "Highly Satisfactory." P1 stated that, in his application, complainant provided five bullets identified as bullets (a) - (e). P1 further stated that "all but one of these bullets are either typical requirements of a primary examiner or not related to this factor." P1 stated that bullet (a) listed complainant's Master Ratings, which only demonstrated expertise in the technological art, but not knowledge of legal matters. P1 stated that bullet (b) demonstrated complainant's technical expertise, but not the legal competency. P1 stated that bullet (c) showed complainant's completion of an agency sponsored legal studies "which only qualify him for the Highly Satisfactory score as set forth in the Crediting Plan." P1 stated that bullet (e) listed complainant's production achievement, but contained nothing about his legal competency. P1 stated that bullet (d) showed that complainant participated in a special project-detail in the Trilateral Patent Exchange, but there were "no details given as to what this project involved and how it relates to this factor." With respect to complainant's assertion that he had re-examination and sixteen publications in the technology field as well as membership in a number of professional societies, P1 stated that none of these were mentioned in his application under the third factor. Regarding the fourth factor, P1 stated that complainant received 6 points, which was the "Highly Satisfactory" level. P1 further stated that although complainant did not specifically mention all of the five goals "namely 1.) Enhancing quality of our products; 2.) improving the quality of our services; 3.) optimizing our process time; 4.) enhancing our employees' well being; and 5.) integrating our business practices into electronic-government, [Complainant] has presented information on activities related to at least one of the goals." With respect to complainant's assertion that he was a Community Day champion and a member of the EEO board for Advancement of Native Americans, P1 stated that none of these items were indicated in the write-up under the fourth factor. Regarding the fifth factor, P1 stated that complainant received 8 points, which is at the "Outstanding" level. P1 further stated that while complainant indicated that he wrote 16 publications in various fields and delivered a single oral presentation, his application "falls short in that it does not demonstrate the quality of any first draft of his work, i.e., whether or not it required any type of revision before publication." With respect to complainant's attack of the selectee's experience for the subject position, P1 stated that although the vacancy announcement was seeking experience in the nuclear field, "this was not an absolute requirement." With respect to complainant's assertion that one of the two other panelists (P2) holds a grudge against complainant [and] was the head of the panel, P1 denied complainant's claim. P1 stated that the panel, comprised of three Supervisory Patent Examiners, "worked as a team in deciding the final scores. No one SPE had any final authority over any other SPE." Furthermore, P1 stated that complainant's sex and age were not factors in the panel's deciding scores in any of the five ranking factors. The record also contains an affidavit from P2. With respect to complainant's assertion that P2 headed the panel, P2 stated that it was not true. With respect to complainant's assertion that P2 held a grudge against him, P2 stated she found complainant's claim "false and completely unfounded." Regarding complainant's assertion that on one occasion P2 looked at him directly and "said something like, 'some of you are not going to make it to the Patent Office,'" P2 denied making the statement. P2 stated that having 250 to 400 students a year, she does not remember having complainant in any of her classes. Regarding complainant's assertion that P2 was his former co-worker, P2 stated that she does not perceive herself as complainant's co-worker. P2 stated that she does not recall having any contact with complainant. P2 stated that complainant's sex and age were not factors in the panel's deciding scores in any of the five ranking factors. Based on a thorough review of the record, the Commission concludes that complainant has not shown, by a preponderance of the evidence, that the agency's articulated reasons, as discussed above, were a pretext for discrimination. The Commission determines that the agency's final decision finding no discrimination was proper and is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0701) 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), 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. 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 (S0900) 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 (Z1199) If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request that the Court appoint an attorney to represent you and that the Court permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File A Civil Action"). FOR THE COMMISSION: ______________________________ Carlton M. Hadden, Director Office of Federal Operations October 19, 2006 __________________ Date 1 Due to a new data system, this case has been re-designated with the above referenced appeal number. 2 The record reflects that on January 5, 2005, complainant retired from agency employment. 3 The record reflects that complainant dropped race as a basis during the investigation of his complaint. ?? ?? ?? ?? 2 01A63723 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P. O. Box 19848 Washington, D.C. 20036 7 0120063723 8 01A63723