Woodrow B.,1 Complainant,v.Michael R. Pompeo, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

Nov 7, 2018

0120171813 (E.E.O.C. Nov. 7, 2018)

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

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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

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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.
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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