[Redacted], Woodrow B., 1 Complainant,v.Antony J. Blinken, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

Mar 29, 2021

Appeal No. 2020001061 (E.E.O.C. Mar. 29, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Woodrow B.,1 Complainant, v. Antony J. Blinken, Secretary, Department of State, Agency. Appeal No. 2020001061 Agency No. DOS-0430-18 DECISION On November 7, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 17, 2019 final decision concerning an 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. BACKGROUND During the relevant time, Complainant worked as a Personnel Security Specialist (PSS) at the Agency’s Baghdad Diplomatic Support Center (BDSC) located in Baghdad, Iraq. He was placed in the position by the Security Services Company, SOS-USA (“SOC”), LLC, that held a contract with the Agency to provide security services. During the relevant time, Complainant stated that the Sergeant, who was his immediate supervisor, as well as his second-line supervisor, were both SOC employees. On December 12, 2018, Complainant filed a formal EEO complaint alleging the Agency discriminated against him based on color (Black) when, on July 18, 2018, he was removed from his assignment in Baghdad, Iraq. 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 2020001061 After the investigation of the claim, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge. In accordance with Complainant’s request, the Agency issued a final decision on October 17, 2017, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination had occurred as alleged. The instant appeal followed. ANALYSIS AND FINDINGS A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she 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). During the investigation into the complaint, the responsible Agency officials articulated legitimate, non-discriminatory reasons for the disputed action as detailed below. The Agency’s Regional Security Officer (“Security Officer”) (Black) stated that during the relevant period, the Embassy Liaison Unit (ELU) was not part of his security portfolio, and that he did not manage any aspect of the ELU program or the contractors who staff the program for SOC. He stated, however, he was instrumental in the changing of the security escorting protocols pertaining to the U.S. Department of Defense’s protection team called “Phantom” when it operated on the BDSC, a State Department compound. 3 2020001061 The Security Officer explained that one of the major activities assigned to the ELU was to provide direct and personal escorts for motorcades and visiting personnel at BDSC. He stated that the ELU was composed of contractors from SOC. The Security Officer further stated that SOC makes the decision on who to hire, how and when they are paid, and the decision to retain or not retain their employees. The Security Officer stated that on July 17, 2018, Complainant was assigned as the first point of contact for incoming visits and was responsible to ensure that proper escort services were provided. However, on that date, Phantom personnel arrived, but Complainant only recorded their arrival and did not arrange for escort services. Ultimately, an event occurred involving Phantom personnel that resulted in some damage to the facility, and the issue reached the level of the Ambassador. The Security Officer stated that this incident would not have occurred if Complainant had adhered to the well-established security protocols for escorting the Phantom team. The Security Officer stated that the Contracting Officer Representative (COR) was made aware of the incident and asked Complainant to meet and discuss what had occurred to see if proper procedures were followed when the Phantom team was granted access to BDSC. The Security Officer stated that on July 18, 2018, Complainant and the COR had a meeting, but he was not initially part of the meeting. He noted, however, that the meeting was in close proximity to his desk. According to the Security Officer, he heard the COR ask Complainant about his understanding of the escorting rules for the Phantom team and, “I could clearly hear as well as see the Complainant becoming immediately defensive and belligerent toward [the COR] in reference to such a simple question of explaining the policy of scoring the “Phantom” Team. Complainant was either argumentative or non-responsive to [the COR].” The Security Officer further stated that after observing the dialogue between Complainant and the COR, “I interceded and asked Complainant to calm down and answer the questions. Instead, Complainant became even more belligerent and non-responsive. I was most concerned with Complainant’s attitude and seemingly out of control personality…during the whole 15-20 minute conversation, [the COR], [the Government Technical Monitor, who was also present], and I remained calm while Complainant was clearly out of control, insubordinate and belligerent towards both SOC-USA and the Department of State.” The Security Officer stated that when Complainant left the office, it was determined by the COR, the Government Monitor and himself that Complainant “willfully disregarded all security protocols as it related to escorting the ‘Phantom’ Team, dereliction of his security duties by abandoning his security post when he failed to escort the ‘Phantom’ Team in accordance to the established protocols.” Moreover, the Security Officer stated the parties agreed that, based on the events of these two days, they had lost confidence in Complainant’s ability to perform his security functions at BDSC. The COR (Black) stated that during the relevant period his role was to ensure SOC’s compliance with contract standards. He confirmed that a directive from the Security Officer had been given to the ELU, a three-man team that included Complainant. He said, “[t]he directive for an ELU person to escort the DOD ‘Phantom’ Team on the Baghdad Diplomatic Support Center was conveyed to Senior SOC leadership.” 4 2020001061 He explained that the changes were made because of several incidents that occurred with the U.S. Army General’s personnel security protective team that caused the Security Officer to require someone from ELU escort the team while on BDSC to ensure Embassy rules were followed and adhered to. Thereafter, the COR summoned Complainant to discuss why no ELU personnel were present with the Phantom team while at the BDSC on the date in question and “that an incident occurred with the Phantom team that resulted in damage to Embassy property that could have been avoided if rules and directives were followed.” He noted that Complainant was annoyed and upset that he was called to the office, and “he would not look at me, continued to walk around, almost pacing in the office and would not engaging in any small talk conversation.” In addition, the COR stated that when the Security Officer asked Complainant several questions to understand the sequence of events that lead to property being damaged by a Phantom team member, Complainant appeared annoyed by the questions and “abruptly interrupted [the Security Officer] and stated a few times ‘you have it all wrong…, you have it all wrong….’” He stated that when Complainant was asked if he was assigned to provide liaison escort duties for the Phantom team and he replied “yes, but I decided to stop escorting the visitors when they entered the Pas-Terminal because they all had blue badges, so I departed.” The COR added that while [the Security Officer] was talking, Complainant abruptly interrupted and stated, “Listen I’m not aware of the door damage, I left because they all had blue badges and you don’t know what you are talking about, I’ll call my DoD point of contact to get you the truth about what occurred.”2 Following the meeting, the COR said it was determined that Complainant could no longer be trusted in his position at the BDSC. That same day, July 18, 2018, Complainant departed the BDSC. Here, Complainant failed to meet his ultimate burden of proving, by a preponderance of the evidence, that Agency management acted on the basis of a prohibited reason. In sum, Complainant has simply provided no evidence to support his claim that his treatment was the result of his color rather than the incidents that occurred on July 17-18, 2018. While Complainant may believe that he was treated unfairly by the Agency officials because he believed the Phantom team members had “blue badges” indicating escorts were not required, he has provide no evidence whatsoever that his color played any role in the decision to remove him from his position. See Jackson v. City of Killeen, 654 F.2d 1181, 1186 (5th Cir. 1981) (“Title VII is not a shield against harsh treatment at the workplace; it protects only in instances of harshness disparately distributed. The essence of the action is, of course discrimination.”). CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 2 The reference to “blue badges” relates to an Agency policy that had once held that personnel wearing blue badges did not require escorts. 5 2020001061 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 6 2020001061 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 March 29, 2021 Date