Darrin H.,1 Complainant,v.John Kerry, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

Jan 4, 2017

0120141067 (E.E.O.C. Jan. 4, 2017)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Darrin H.,1
Complainant,

v.

John Kerry,
Secretary,
Department of State,
Agency.

Appeal No. 0120141067

Hearing No. 470-2012-00091X

Agency No. DOS-F-121-11

DECISION

On January 16, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s January 15, 2014, final order 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. For the following
reasons, the Commission AFFIRMS the Agency’s final order.

BACKGROUND

Complainant applied for a Passport Specialist position at the Agency’s Passport Office in
Detroit, Michigan. Although he had been tentatively selected for the position on November
20, 2009, he was notified on July 1, 2011 by the Employee Relations Specialist who chaired
the Personnel Review Panel (PRP)2 that the offer had been withdrawn due to the fact that he

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.

2 In addition to the Chair, the following individuals comprised the PRP: a representative from
the Human Resources Office of Employee Relations (HR/ER/CDS); a representative from the
Office of Personnel Security and Suitability within the Bureau of Diplomatic Security
(DS/SI/PSS); and a representative from the Human Resources Office of Recruitment,
Examination, and Employment (HR/REE). AJ’s Decision, p. 10.
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had been found unsuitable for employment. On September 8, 2011, Complainant filed an EEO
complaint in which he alleged that the three PRP members who had voted unanimously to deny
his suitability had done so because of his national origin (Lebanese). At the conclusion of the
investigation, the Agency provided Complainant with a copy of the report of investigation and
notice of his right to request a hearing before an Equal Employment Opportunity Commission
Administrative Judge (AJ). The AJ held a hearing on April 30, 2013, and issued a decision on
December 9, 2013 finding no discrimination. The Agency subsequently issued a final order
adopting the AJ’s findings and conclusions.

According to email correspondence between Complainant and an Agency Personnel Specialist,
Complainant accepted the Agency’s conditional offer of employment as a Passport Specialist
on November 20, 2009. However, on February 15, 2011, the DS/SI/PSS Adjudication
Division Chief, whose Division had been conducting Complainant’s background investigation,
referred the matter to the PRP for a suitability determination. According to the Adjudication
Division Chief, the grounds for a suitability determination included a decision by the Merit
Systems Protection Board upholding an unsuitability determination by another federal Agency,
a guilty plea to six non-capital felonies, and findings of false statements on previous job
applications concerning places of employment and financial difficulties.

On the basis of this information, the three voting members of the PRP voted unanimously to
deny Complainant’s suitability for employment on June 15, 2011. Complainant was notified of
the PRP’s decision the following day and given an opportunity to respond. After receiving and
considering Complainant’s response, together with the information uncovered during the
course of the background investigation, the PRP affirmed its decision. Complainant was
notified of that decision by letter from the PRP Chair on July 1, 2011.

STANDARD OF REVIEW

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld
if supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory intent existed is a factual
finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions
of law are subject to a de novo standard of review, whether or not a hearing was held.

ANALYSIS AND FINDINGS

The Commission cannot second-guess an Agency’s decisions involving personnel selection
unless there is evidence of a discriminatory motivation on the part of the officials responsible
for making those decisions. See Texas Department of Community. Affairs v. Burdine, 450
U.S. 248, 259 (1981). Therefore, in order to prevail on his discrimination claim, Complainant

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would have to prove, by a preponderance of the evidence, that at least one of the PRP
members who voted to deny his suitability determination on June 15, 2011, was motivated by
unlawful considerations of his Lebanese national origin. See Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 143 (2000).

In circumstantial-evidence cases such as this, Complainant can establish motive by presenting
evidence tending to show that the reasons articulated by the PRP members for voting to deny
his suitability determination were pretext, i.e., not the real reason but rather a cover for
discrimination on the basis of national origin. St. Mary’s Honor Society v. Hicks, 509 U.S.
502, 515 (1993). Pretext can be demonstrated by showing such weaknesses, inconsistencies,
or contradictions in the Agency’s proffered legitimate reasons for its action that a reasonable
fact finder could rationally find them unworthy of credence. Opare-Addo v. United States
Postal Service, EEOC Appeal No. 0120060802 (November 20, 2007), request for
reconsideration denied EEOC Request No. 0520080211 (May 30, 2008). Indicators of pretext
include discriminatory statements or past personal treatment attributable to those responsible
for the personnel action that led to the filing of the complaint, comparative or statistical data
revealing differences in treatment across various protected-group lines, unequal application of
Agency policy, deviations from standard procedures without explanation or justification, or
inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. U.S. Postal
Service, EEOC Appeal No. 0120141697 (Nov.12, 2015).

In finding in the Agency’s favor, the AJ made a number of critical factual findings. First,
Complainant had been charged with impersonating a police officer in June 2002, but the case
was closed in October 2002 after the prosecutor abandoned the charge. Second, Complainant
pled guilty to six non-capital felonies, but the case against him was dismissed at the sentencing
hearing. Third, Complainant had been tentatively selected for a law enforcement position with
the U.S. Marshals Service but in October 2008, his candidacy was terminated pursuant to an
unsuitability determination based on misconduct or negligence in a prior position. Fourth, in
August 2009, Complainant resigned from the U.S. Marine Corps after being issued a notice of
termination for negligent performance of his duties. Fifth, a routine credit check revealed that
Complainant had past due balances on a home mortgage and two credit cards totaling
approximately $14,000. Sixth, Complainant falsely reported on his application that he had
been a police cadet and a volunteer probation officer for the Dearborn Police Department.
Seventh, Complainant either failed to disclose these incidents altogether or provided inaccurate
or incomplete information concerning them. AJ Decision, pp. 5-8. The AJ concluded that the
PRP members’ unanimous decision to deny Complainant’s suitability was based entirely on the
background investigation results.

In making these findings, the AJ determined that the PRP Chair, the three PRP members, and
the Adjudication Division Chief were highly credible witnesses and accorded their affidavits
and hearing testimony great weight. An AJ’s credibility determination based on the demeanor
of a witness or on the tone of voice of a witness will be accepted unless documents or other
objective evidence so contradicts the testimony or the testimony so lacks in credibility that a
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reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9,
Section VI, Subsection B. (August 5, 2015).

When asked by the EEO investigator and again at the hearing why he believed that the PRP
members had discriminated against him because of his Lebanese ancestry, Complainant stated
his former employers had lied to those who had been conducting the background investigation,
and that all of the charges against him had been “mixed together,” or words to that effect, in
an effort to make him look like he was unsuitable for employment as a Passport Specialist.
Beyond his own speculative assertions, however, he has not presented any sworn statements or
hearing testimony from other witnesses or documents that contradict the explanations provided
by the panel members in support of their decision or which undermine their veracity or
credibility. We therefore find no basis upon which to disturb the AJ’s credibility determination
regarding the hearing testimony of the PRP members. Ultimately, we agree with the AJ that
Complainant has not sustained his burden of proof with respect to his claim of national origin
discrimination.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final order implementing the AJ’s finding that Complainant did not establish that he
had been discriminated against, as alleged.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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. The requests 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
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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
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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:

_______________________ en’s signature
Carlton M. Hadden, Director
Office of Federal Operations

January 4, 2017
Date