[Redacted], Rusty C., 1 Complainant,v.Antony Blinken, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

May 19, 2021

Appeal No. 2020000379 (E.E.O.C. May. 19, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Rusty C.,1 Complainant, v. Antony Blinken, Secretary, Department of State, Agency. Appeal No. 2020000379 Agency No. DOS-0337-18 DECISION On September 17, 2019, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 19, 2019, final decision 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. BACKGROUND At the time of events giving rise to this complaint, Complainant served the Agency as a Sexual and Gender Based Violence Justice Advisor IV in Liberia. He was placed in the position through Integrated Justice Systems International (IJSI), a subsidiary of Tetra Tech (Contractor), a staffing firm.2 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 The Agency considered the relevant factors and found that Complainant qualified as an “employee” for the purposes of using the 29 C.F.R. Part 1614 EEO complaint process. We agree with the Agency’s finding that Complainant was an employee and the Agency had jurisdiction over the alleged discriminatory claims. See Serita B. v. Department of the Army, EEOC Appeal No. 0120150846 (November 10, 2016). 2020000379 2 On August 7, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Black/African), national origin (Trinidad and Tobago), color (Black), and reprisal for prior protected EEO activity when: 1. on or about March 1, 2018, he was demoted; 2. on April 26, 2018, he was terminated from his position with the Bureau of International Narcotics and Law Enforcement Affairs (INL); 3. the Department's non-fraternization policy pertaining to third country nationals has disparately impacted him as an employee closely associated with an African national; and 4. he was subjected to a hostile work environment, characterized by, but not limited to, intimidating comments and behaviors. The Agency dismissed claim (1), pursuant to pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. It accepted the remaining allegations and conducted an investigation, which produced the following pertinent facts: Complainant identified a Foreign Affairs Officer and the Director, INL (Director) as the responsible Agency officials. Regarding his alleged basis of reprisal, Complainant attested that he did not have a prior EEO complaint, but he filed a report about a co-worker’s criminal behavior in which she created a hostile and dangerous environment for him, and he was concerned for his safety. The Foreign Affairs Officer attested that he learned about the instant complaint when he was contacted by the EEO Counselor and he was previously aware of Complainant’s allegations of reprisal. The Director attested that she learned of the instant complaint in the fall of 2018 and she became aware of the nature of Complainant’s reprisal allegation on February 4, 2019, when she received an email from the EEO investigator in the instant case. Complainant provided a statement containing a history of the events at issue. It indicates that he began working on the INL contract in August 2016 with the previous contractor, PAE. Upon arrival in Liberia, he was informed that there was to be no fraternization with Liberian nationals, but fraternization with third country nationals was permitted. In October 2016, he began an open relationship with a Nigerian national, which was known by PAE management and staff. The statement indicates that, in November 2016, PAE lost the INL contract and, in January 2017, Complainant signed a contract with Contractor with the approval of INL. In February 2017, Contractor gave him its non-fraternization policy pertaining to third country nationals. Complainant indicated that the language of the contract was vague and referred to “certain third country nationals” and, because Contractor’s Human Resources representative (HR) could not clarify which “certain countries” were included in the policy, he crossed out the “vague and offending language” and returned it to HR, who signed it and placed it in his file. 2020000379 3 Complainant described social situations during which he and another Contractor employee (white male) included their third country national girlfriends at work events with Agency management. The other employee’s girlfriend was Asian and not an African national. The statement indicates that, in or around November 2016, Complainant was promoted to Senior Sexual and Gender Based Violence Advisor, Justice Team Leader and the INL Justice Coordinator. The statement describes a series of events involving the Gender Justice Police Advisor. It indicates that, in December 2017, Complainant asked her for a list of police officers that she vetted, and she informed him that she had not vetted anyone that she trained. Complainant reported the matter, as well as other violations she committed, to the Contractor’s Deputy Program Manager who “had some harsh words for her.” It describes subsequent alleged events involving the Gender Justice Police Advisor, such as emotional outbursts and her blocking his car. It indicates that Complainant reported the matters to the Director and the Foreign Affairs Officer and was told to find a way to get along with her and, if they could not get along, they both would be terminated. The statement indicates that, in March 2018, Complainant was demoted and instructed to remove all references to INL on his email and stop using all titles and references to INL. Further, the statement indicates that Contractor conducted an investigation into the conflicts between Complainant and the Gender Justice Police Advisor, during which Complainant was informed that the Gender Justice Police Advisor had filed a complaint against him, including that he was living with a third country national in violation of the Contractor’s policy. Complainant indicated that the investigator asked why Complainant did not sign the Agency’s policy and Complainant explained that the Contractor could not explain who was covered by this policy and he could not sign a statement unless he knew what it meant. Complainant further explained that he believed the policy was meant to target Africans. The statement indicates that, in March 2018, Complainant was presented with a reworded non- fraternization policy to sign by the Contractor’s Deputy Program Manager that indicated that employees were not to fraternize with nationals who were “African or otherwise.” Complainant indicated that he stated to Contractor’s Deputy Program Manager that this was racist, and he crossed out the offensive clause, signed the policy and gave it back to him. On April 26, 2018, Complainant was terminated. Complainant indicated that he was told that he was being terminated for fraternization with a third country national, his Nigerian girlfriend, and that the decision was reached by both Contractor and INL. He also indicated that the Contractor’s Interim Deputy Program Manager was also in the room at the time. He indicated that, an hour after he was terminated, the Gender Advisor entered the office and informed him that she was also terminated. 2020000379 4 During the investigation, Complainant provided testimony that was consistent with his statement. He also indicated that the non-fraternization policy was racist in nature, noting that the Contractor prohibited fraternization with Africans but allowed for fraternization with non- African third country nationals. He asserted that his race, ethnicity, and/or national origin were the basis for his termination because he was told by officer that it was due to his violation of the non-fraternization policy. He argued that others who were dating non-black, non-Africans were not terminated or sanctioned for fraternization. He asserted that, while he did not know if his race, color, or national origin were factors when he was disparately impacted by the policy, he does know that his girlfriend’s race, color, and national origin were. He further asserted that he was terminated as a black man for simply dating a black African woman from Nigeria and opposing a policy that was discriminatory. Complainant alleged that Officer and Director were responsible for his termination. Complainant attested to his harassment allegations. His allegations included that, in October 2017, Contractor’s management ordered him not to have anything to do with Gender Justice Police Advisor until Director spoke to her; in January 2018, after he had reported numerous incidents to the Director, she chastised him and told him to get along with the Gender Justice Police Advisor; and, in February 2018, Officer told him and all the other contractors that, it did not matter what anyone filed against another contractor because, if contractors could not get along, they would be sent home. Complainant alleged that, after he filed a report against the Gender Justice Police Advisor, he was ordered to do unnecessary work and threatened multiple times with being fired. The Foreign Affairs Officer attested that he conducted an inspection of the contract on February 12 to 16, 2018, including interviewing key Contractor employees to assess concerns. He attested that Director had expressed her concerns regarding Complainant’s performance and professionalism and he notified Contractor of these concerns and the results of his review. He attested that, during his inspection, the Gender Justice Police Advisor indicated that Complainant was violating the non-fraternization policy, specifically indicating that Complainant had a Nigerian girlfriend who was often seen at events. The Foreign Affairs Officer attested that Complainant admitted that these allegations were true. The Foreign Affairs Officer attested that, after his initial report to Director in February 2018, Director told the Foreign Affairs Officer that she knew Complainant’s girlfriend existed but had never thought about whether Contractor had cleared any fraternization policy conflicts. The Foreign Affairs Officer explained that Contractor handled HR-related activities and INL was not responsible for giving Complainant an opportunity to explain his conduct or for telling him why he was being terminated. The Foreign Affairs Officer explained that the contractual policies with Contractor prohibit Advisors from fraternizing with local nationals and even giving the appearance of fraternizing. He defined “local nationals” as Liberians and third country nations who have free movement and interest in Liberia, the Economic Community of West African States nationals, and other individuals indicated by the Post. 2020000379 5 The Foreign Affairs Officer attested that the Gender Justice Police Advisor’s comment about Complainant was included with other allegations and submitted to Contractor for an internal investigation. The Foreign Affairs Officer explained that Contractor hired the investigator and the report was provided in March 2018. The Foreign Affairs Officer attest that the report indicated Complainant had a Nigerian girlfriend, had purposefully scratched out the non- fraternization policy from his agreement, and violated corporate policies on customer contact. The Foreign Affairs Officer attested that, on March 27, 2018, he emailed Contractor’s management, highlighting all contract clauses that required them to give the Agency a full report of the investigation. He also attested that, on March 28, 2018, he asked Contractor’s Deputy Program Manager to tell Complainant to cease using INL in his signature line, as he was not employed by INL and did not directly work for INL. The Foreign Affairs Officer attested that he concurred with Director and INL Law Enforcement Personal Services Contractor’s assessment that Complainant’s purposeful scratching out of the policy and claiming it did not apply to him was disrespectful and showed contempt for INL and corporate policies. The Foreign Affairs Officer attested that the non-fraternization policy and requirements for professionalism had been addressed with Complainant on July 18, 2016 and, at that time, Complainant said he understood and had no questions. The Foreign Affairs Officer attested that, on April 20, 2018, Contractor responded with its final determination that Complainant would be terminated. The Foreign Affairs Officer attested that the Agency was notified on April 26, 2018 that Complainant was given a notice of removal. The Foreign Affairs Officer attested that INL told Contractor that the investigation findings qualified Complainant for termination, but INL made it clear to Contractor that it was their choice to make. He attested that Contractor concurred and chose to terminate Complainant and Complainant was notified of the termination by Contractor. Regarding Complainant’s general harassment allegations, the Foreign Affairs Officer attested that he was aware of Complainant’s allegations about the Gender Justice Police Advisor, who also made the same allegations against Complainant. He was aware Complainant complained that the Gender Justice Police Advisor was unprofessional, limited his ability to do his work, and physically assaulted him. The Foreign Affairs Officer attested that he asked Complainant if he wanted an internal investigation and Complainant’s allegations were added to the list of things requiring an investigation. The Foreign Affairs Officer also attested that he received reports from the field that the animosity between Complainant and Gender Justice Police Advisor escalated when they learned each had made allegations against the other. The Foreign Affairs Officer denied stating that it did not matter what anyone filed against another contractor but acknowledged telling them that the inability to be a good teammate was part of their performance assessment and reason enough not to extend a contract. Director attested that Complainant was employed and terminated by Contractor and she could not hire, terminate, promote, or demote him. She attested that Contractor recommended that Complainant be removed from the contract following their investigation. 2020000379 6 She attested that Complainant was removed for obligating INL funds, having a poor working relationship with Gender Justice Police Advisor, crossing through his contract, and misrepresentation. She attested that, while she was aware of Complainant’s relationship with a Nigerian woman, their relationship had no impact on her decision to agree to remove him from the Liberia contract. Director further attested that there had been complaints about Complainant’s poor working relationship with the Gender Justice Police Advisor, and Complainant’s behavior during Friday INL staff meetings was often inappropriate, causing other Advisors to complain. She attested that he misrepresented himself as an INL employee with foreign counterparts and inappropriately attended meetings with senior Liberian and other foreign diplomats with whom he should not have met. She attested that she also agreed to Complainant’s removal from the contract because of his poor working relationship with the Gender Justice Police Advisor which had impacted the IJSI advisory team and her ability to oversee IJSI programs/projects. Director noted that the Gender Justice Police Advisor was an equally problematic employee. Regarding Complainant’s general harassment allegations, Director attested that it was possible that Complainant said he was being harassed or subject to a hostile work environment, but he and the Gender Justice Police Advisor were equally responsible for creating it. She attested that the only claims Complainant made involved the Gender Justice Police Advisor and she did not notice a change in Complainant’s work habits. Director attested that she took Complainant’s allegations of assault seriously, but, when he made several unproven allegations and others began to complain about him, she believed he was the problem. A copy of Contractor’s Non-Fraternization Policy is of record and indicates Complainant crossed out portions relating to foreign nationals. A February 2, 2017 briefing acknowledgment indicates that Complainant crossed out portions relating to the non-fraternization with foreign nationals policy. 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. The instant appeal followed. Complainant did not submit a statement or brief in support of his appeal. The Agency has not submitted a statement or brief in response to the appeal. 2020000379 7 ANALYSIS AND FINDINGS Dismissed Claim EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The Agency dismissed claim (1), which allegedly occurred on or about March 1, 2018, for untimely EEO Counselor contact. The record shows that Complainant first contacted an EEO counselor on June 5, 2018, which is beyond the forty-five (45) day period. Complainant has not offered sufficient justification for extending or tolling the time limit. Accordingly, dismissal of this claim on this basis was proper. Disparate Treatment Claims A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Constr. 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 Tex. Dep't of Cmty. 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 Ctr. v. Hicks, 509 U.S. 502 (1993). Here, Complainant asserts that his allegations regarding his termination and having been subjected to the non-fraternization policy, give rise to claims of disparate treatment. Even if we assume that Complainant established a prima facie case of discrimination, his claims ultimately fail, as we find that the Agency articulated legitimate, non-discriminatory reasons for its actions. The Director explained that Complainant was terminated for obligating INL funds, having a poor working relationship with the Gender Justice Police Advisor, crossing through his contract, and misrepresentation. She also explained that the non-fraternization policy and Complainant’s relationship with a Nigerian national was not a factor in his termination. Complainant acknowledged that his relationship with his Nigerian girlfriend was open and generally known by Agency and Contractor employees, and he had been involved in this relationship since October 2016, without a challenge from management. We recognize that Complainant’s position essentially is that the non-fraternization policy limits his ability to have interpersonal relationships with Africans. However, he has failed to show by a preponderance of the evidence that the Agency acted because of his race, color, or national origin. 2020000379 8 While Complainant attempts to tie the non-fraternization policy to race by asserting that other employees were allowed to openly maintain relationships with non-African nationals (European or Asian nationals). However, we find that the weight of the evidence establishes that the rule was based on national security concerns prohibiting fraternization with nationals from other African countries with formal ties to Liberia. Complainant has also failed to show that, assuming he engaged in prior protected EEO activity, there was a nexus between that protected activity and the Agency’s actions at issue. See Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). Harassment Claim In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of the complainant's employment and create a hostile or abusive working environment.” See also Oncale v. Sundowner Offshore Services. Inc., 23 U.S. 75 (1998). The Court explained that an “objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive” and the complainant subjectively perceives it as such. Harris, 510 U.S. at 21-22. Thus, a claim of harassment is actionable only if, allegedly, the harassment to which the complainant has been subjected was sufficiently severe or pervasive to alter the conditions of the complainant's employment. Here, Complainant’s harassment allegations primarily reflect his disagreements with management’s exercise of its discretion in supervising employees or personality conflicts between Complainant and other employees or managers. These allegations include his disagreement with the non-fraternization policy and his workplace conflicts with the Gender Justice Police Advisor. Without evidence of an unlawful animus, we have found that similar disputes do not amount to unlawful harassment. See Complainant v. Dep't of Def., EEOC Appeal No. 0120122676 (Dec. 18, 2014) (The record established that the issues between the complainant and the supervisor were because of personality conflicts and fundamental disagreements over how work should be done and how employees should be supervised, and there is no indication that the supervisor was motivated by discriminatory animus towards the complainant's race, sex. or age); Lassiter v. Army, EEOC Appeal No. 0120122332 (Oct. 10, 2012) (personality conflicts, general workplace disputes, trivial slights and petty annoyances between a supervisor and a complainant do not rise to the level of harassment). We note that Complainant’s complaints against the Gender Justice Police Advisor were included in an internal investigation. Although Complainant asserts that the Agency acted discriminately, there is insufficient evidence to support the assertion that his race, color, national origin, or prior protected EEO activity played a role in the incidents at issue. Thus, Complainant's allegations, even if true, are insufficient to establish a claim of discriminatory harassment. 2020000379 9 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision. 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. 2020000379 10 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 May 19, 2021 Date