Virginia Lawyers Weekly//May 9, 2022
Virginia Lawyers Weekly//May 9, 2022//
Where a former patent examiner alleged the United States Patent and Trademark Office, or USPTO, retaliated against him in violation of Title VII of the Civil Rights Act of 1964, resulting in his constructive discharge, but he waited too long before contacting an equal employment opportunity, or EEO, officer, his Title VII claims were dismissed.
Shahriar Behnamian filed this matter in a pro se capacity on Sept. 10, 2021, alleging three counts styled as: (1) a petition for review of wrongful denial of an application for registration to practice before the USPTO; (2) unlawful retaliation under Title VII and (3) constructive retaliatory discharge under Title VII. This matter comes before the court on defendants Andrew Hirshfeld and USPTO’s motion to dismiss and motion for summary judgment.
Service of process
Plaintiff does not dispute that he personally served the summons and complaint upon defendants. However, plaintiff represents that the clerk advised him that his manner of service was proper. Even if such was the case, plaintiff clearly failed to consult the applicable rules. And despite defendants raising this issue, plaintiff still did not take the opportunity to serve defendants properly.
This court sees no good cause or excusable neglect in plaintiff’s failure to properly serve defendants; the complaint merits dismissal without prejudice on this ground alone. Notwithstanding this court’s finding of improper service of process, this court turns to the substance of defendants’ motions and plaintiff’s petition.
Defendants’ motions argue principally that plaintiff has failed to adequately exhaust the Title VII claims before bringing them before this court. “A federal employee who wishes to pursue a Title VII suit must ‘initiate contact’ with an EEO counselor within 45 days of the date of the allegedly discriminatory conduct or the effective date of the applicable personnel action to begin the EEO counseling process.” The undisputed record reveals that plaintiff was made aware of this 45-day requirement as part of his required training as a USPTO federal employee.
Plaintiff first sought EEO counseling on Sept. 7, 2021. Counting 45 days back leaves the plaintiff with timely raised Title VII claims for the period on or after July 23, 2021. However, the complaint only alleges violations of Title VII that preceded July 23, 2021, and therefore plaintiff’s Title VII claims are deemed untimely.
Plaintiff has also failed to make a case for equitable tolling. Nowhere in the complaint or in his briefing does plaintiff assert he was unaware of the violations at the time they allegedly occurred. Considering the dearth of evidence and the “considerable [evidentiary] burden” for imposing an equitable modification to the exhaustion requirement, this court will not consider applying such an “extraordinary remedy.”
Plaintiff takes the position in his opposition that his Title VII claims arise under the Family and Medical Leave Act, or FMLA. It appears that plaintiff has conflated Title VII protected activities with FMLA protected activities. Even if plaintiff did abandon his Title VII claims and instead sought relief under the FMLA, plaintiff has still fallen short of the requisite administrative exhaustion requirements.
At the time of the earliest alleged protected activity in the spring of 2019, plaintiff had worked at the USPTO for over a decade. Title II of the FMLA applies to federal employees who have “completed at least 12 months of service as an employee  of the Government of the United States.” For plaintiff to assert a cognizable claim under Title II, he would need to present this matter before the Merit Systems Protection Board, and any further appeals would fall within the exclusive jurisdiction of the Court of Appeals for the Federal Circuit.
A USPTO regulation prohibits an individual from registering to practice before the agency unless the Office of Enrollment and Discipline, or OED, director is satisfied that the applicant “possesses good moral character and reputation.” Here, the OED director issued a final decision denying the application on Jan. 15, 2021. Plaintiff thus had until Sept. 8, 2021 to file his petition for review with this court, but did not file within this timeframe. Moreover, while plaintiff challenges the final order on four grounds, seeing no evidence that the USPTO director’s affirmance came at the cost of an arbitrary or capricious review or application of the record, this court is without reason to dispute the final order.
Defendants’ motion to dismiss and motion for summary judgment granted. Plaintiff’s petition for review and complaint dismissed.
Behnamian v. Hirshfeld, Case No. 1:21-cv-1043, April 26, 2022. EDVA at Alexandria (Alston). VLW 022-3-182 23 pp.