Woodrow B.,1 Complainant,v.Michael R. Pompeo, Secretary, Department of State, Agency.Download PDFEqual Employment Opportunity CommissionNov 7, 20180120171813 (E.E.O.C. Nov. 7, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Woodrow B.,1 Complainant, v. Michael R. Pompeo, Secretary, Department of State, Agency. Appeal No. 0120171813 Agency No. DOS019116 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final decision dated March 30, 2017, finding no discrimination with regard to 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 decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant was contracted as an Explosive Detection K9 Handler for American K-9 Detection Services (AMK9). While working for AMK9, Complainant was assigned to the Worldwide Protective Services (WPS) Task Order 003 (TO-3) from February 28, 2013 until February 18, 2016. At the time of the events at issue, Complainant was attending a course for his Canine Handler Certification administered by the Agency at the Canine Validation Center (CVC) in Winchester, Virginia. The certification course was required as a part of the WPS TO-3. Complainant admits during the second day of training he told another handler which boxes were “hot” (containing an explosive aid) during a familiarization exercise. Thereafter, Complainant and the other handler were dismissed from the course on February 18, 2016, and Complainant was issued a Loss of Confidence (LOC) letter for an integrity violation. As a result of his dismissal from the course, Complainant was removed from the WPS TO-3 by his employer. 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. 0120171813 2 On July 11, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Caucasian) and sex (male) when on February 18, 2016, the Agency requested his removal from WPS TO-3. 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). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Thereafter, Complainant appealed and argues that his actions did not constitute an integrity violation to warrant dismissal from the CVC training and removal from the WPS TO-3. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). In the instant case, the Agency found that Complainant failed to establish that he was subjected to discrimination. Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, she must first establish a prima facie case 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. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). In a disparate treatment case, a prima facie case of discrimination based on sex many be done by Complainant's showing that she is in a protected class, and was treated less favorably than other, similarly situated employees outside her protected class. Potter v. Goodwill Industries of Cleveland, 518 F.2d 864, 865 (6th Cir. 1875). The burden then shifts to the Agency to articulate a legitimate, non-discriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000). Here, Complainant argued that an African-American, female handler was not removed from the program when she violated the cell phone policy during the course in 2015. The Agency explained the rules stated a violation of the cell phone rule was a one day removal from the course, which this individual was penalized with. 0120171813 3 In Complainant’s case, the general rule regarding standards of conduct applies, with the consequence of removal for failure to comply. We agree with the Agency’s decision that the evidence does not establish that Complainant was similarly situated with any other handler. We find that assuming, arguendo, Complainant could establish a prima facie case of race and sex discrimination, the Agency nonetheless articulated legitimate, nondiscriminatory reasons for its action. Specifically, Agency employees explained that Complainant and other handlers were told during the briefing not to discuss training scenarios with other handlers. As articulated in the Standards of Conduct and employment contract signed by Complainant, the testing requirements at the CVC and integrity of the test is paramount and anyone discovered assisting others are subject to removal from the course and ineligible for WPS canine contracts. Moreover, Complainant has failed to provide any evidence to show that similarly situated persons were treated differently or that the Agency’s action was a pretext for discrimination. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination 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 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. 0120171813 4 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 7, 2018 Date Copy with citationCopy as parenthetical citation