Herman F.,1 Complainant,v.Michael R. Pompeo, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

Nov 29, 2018

0120172059 (E.E.O.C. Nov. 29, 2018)

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

Herman F.,1
Complainant,

v.

Michael R. Pompeo,
Secretary,
Department of State,
Agency.

Appeal No. 0120172059

Hearing No. 570-2016-00598X

Agency No. DOS-0398-15

DECISION

On Tuesday, May 30, 2017, following the Memorial Day holiday, Complainant timely filed an
appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant
to 29 C.F.R. § 1614.403(a), from a final Agency decision (FAD) dated April 26, 2017, on 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant had direct personal services
contract with the Agency to work as an Acquisition Management Analyst, starting on January 25,
2015, at the Bureau of Diplomatic Security, International Programs Directorate, Office of Overseas
Protection Operations, Worldwide Protective Services Division in Rosslyn, Virginia.

On October 2, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated
against him based on his national origin (Asian-Indian) and age (66) when, on August 18, 2015, it
terminated him effective September 18, 2015. He ceased working on August 18, 2015.

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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Following an investigation, the Agency provided Complainant with a copy of the report of
investigation (ROI) and notice of his right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). He requested a hearing, which was denied
by the AJ as a sanction for his failing to comply with his discovery obligations in the AJ’s Case
Management Order and the AJ’s Order Compelling Complainant to Appear for Deposition, despite
repeated warnings of the possibility of sanctions if he did not do so. The AJ remanded the
complaint to the Agency for issuance of a FAD.

In its FAD, the Agency assumed without finding that Complainant made out a prima facie case of
national origin and age discrimination. It found that management gave a legitimate, non-
discriminatory reason for exercising the clause in the service contract terminating his contract at
any time upon at least 30-days written notice, as follows. Complainant reviewed and processed
incoming invoices on a contract with annual expenditures of over $550 million. On August 17 or
18, 2015, the Chief of the Operational Support Division, GS-15 (“S1”) (age 39, national origin
United States), who was Complainant’s first line supervisor, was contacted by DS/CAP (office
that handles personal service contractors in Diplomatic Security) and informed that in 1998,
Complainant was disbarred by the Indiana Supreme Court for chronically deceptive behavior, a
willingness to knowingly falsify legal documents, and a serious lack of candor and trustworthiness.
S1 was unwilling to entrust someone with these character problems to perform acquisition-related
activities on this critical program, so he recommended that Complainant be terminated to the CAP
Division Chief/Contracting Officer, GS-14 (age 64, Scottish and Slovak descent). On August 18,
2015, the Contracting Officer decided to terminate Complainant effective September 18, 2015.
The Contracting Officer stated that he terminated Complainant because of the derogatory
information that came to light. The Agency ruled that Complainant did not prove management’s
explanation was pretext to mask discrimination, and found no discrimination.

The instant appeal followed.

Complainant argues that his disbarment in 1998, for actions that occurred in 1994, was too remote
in time to justify his termination in 2015, and he has been rehabilitated, as evidenced by his
unblemished job performance through the date he was terminated. He contends that the CAP
Support Section Chief/Deputy Contracting Officer (age and national origin unidentified) googled
him and learned of the negative information, and forwarded this to his first line supervisor.
Complainant contends that the Deputy Contracting Officer googled him without authorization, that
she did not google people who were younger and of other national origins, and this was because
of bias. He contends that no one questioned the Deputy Contract Officer.

ANALYSIS AND FINDINGS

As an initial matter, we find that the Agency’s investigation of Complainant’s complaint was
sufficient. In her investigative summary, the EEO investigator indicated that she did not take an
affidavit from the Deputy Contract Officer because while Complainant identified her as being
involved in his termination, he did not indicate to the investigator how she was involved, and the
Contract Officer was the decision-maker. A review of the record shows this is accurate. Given this,
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we decline to find the investigation was inadequate. We note that the record does not reflect when
Complainant learned of the alleged google search – it could have been at the hearing stage in
response to a discovery request by Complainant. But assuming this is so, Complainant gave up his
chance to develop the matter at the hearing stage by not complying with the AJ’s orders.

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he was
subjected to an adverse employment action under circumstances that would support an inference
of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry
may be dispensed with in this case, however, since the Agency articulated legitimate and
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460
U.S. 711, 713-17 (1983). To ultimately prevail, Complainant must prove, by a preponderance of
the evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519
(1993).

Agency management articulated its reason for terminating Complainant’s contract, as recounted
above. Complainant contends that this explanation is pretext to mask discrimination, since the
actions by him that concerned the Agency occurred many years before his termination,
undermining the Agency’s explanation.

DS/CAP provided S1 a link to the Supreme Court of Indiana’s 1998 published decision disbarring
Complainant, which found as follows. To take advantage of bar reciprocity agreements allowing
five years of continuous law practice in a reciprocal state to be substituted for taking the written
bar exam in the target application state, Complainant submitted dishonest and deceptive
information. Specifically, for his June 1991 Pennsylvania bar application he made a statement,
which he represented was true, that he was living in and practicing law as a sole practitioner in
Indiana since 1985, except for a suspension, when in fact two weeks after being admitted to the
Indiana bar in October 1994, he moved to Washington, D.C., and neither worked in nor lived in
Indiana from January 1985 to June 1991. Complainant made a like misrepresentation under oath
in his 1994 Maryland bar application, this time claiming that he lived in and practiced law in
Indiana from January 1985 to February 1992, when he did not do so and lived elsewhere. Further,
for his Maryland bar application, Complainant procured or forged a certification from a “David
Rivera,” allegedly a member of the Minnesota Bar, that Complainant practiced law in the District
of Columbia from January 1993 to December 1993, when he did not. Also, on his Maryland bar
application, Complainant represented that he was suspended from the Indiana bar from 1989 to
December 1990, but it was from September 1988 to January 28, 1991, and misrepresented the
nature and seriousness of the conduct for which was suspended. Specifically, Complainant
represented that he was suspended for misstating his date of birth on an employment application,
when in fact he was previously found by the Court to have also altered and falsified the dates he
attended George Washington University on a copy of his transcript, then submitted the transcript,
with its alteration, to a federal agency. Further, for his Maryland bar application Complainant
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falsely wrote that the Indiana authorities did not conduct a formal hearing prior to suspending him,
when in fact a formal hearing was held.

In the absence of evidence of discrimination, we decline to substitute our judgment for that of
Agency management. S1 believed that the actions for which Complainant was disbarred showed
that he could not be entrusted with acquisition activity on an over $550,000,000 contract, which
included paying incoming invoices, even though the activity for which he was disbarred occurred
about 21 years and more prior to his removal. The Indiana Supreme Court decision shows that
Complainant repeatedly engaged in deliberately deceptive conduct from at least 1988 into 1994,
even when he verified or stated under oath it was true, and in situations where truthfulness was
expected, required, and necessary. Complainant’s job at the Agency was a position of trust, so the
activities recited above are relevant.

Complainant argues on appeal that the Deputy Contract Officer was not authorized to google him,
was biased against him, and did not google people with his age or national origin. There is no
information in the record supporting these claims, nor does Complainant support them on appeal
with particularized argument that suggests he has a basis for these assertions.

Complainant has failed to prove pretext or discrimination. Accordingly, the FAD is AFFIRMED.

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
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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.
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

November 29, 2018
Date