Hill v. Pompeo: An African-American DS Agent, Offensive Baboon Gear, and a Removal From Leadership Position

This is a Title VII of the Civil Rights Act of 1964 lawsuit involving an African-American Special Agent in the Bureau of Diplomatic Security who joined the State Department in 2002. In September 2013, he joined State’s Office of Mobile Security Deployments (MSD). Excerpt below from the May 31, 2020 Memorandum of Opinion by Judge Dabney L. Friedrich of the U.S. District Court for the District of Columbia:
Summary:
Viewing the complaint in the light most favorable to Hill, it alleges facts to support all three elements of this type of race discrimination claim. First, it alleges that “Hill and Whitaker were the only African American Team 2 members and that the Caucasian Team members had been complaining about them, admitting they did not respect them, and requesting transfers to get away from them since the month after Hill took over as Team Leader.” Compl. ¶ 118. The complaint enumerates multiple instances where the Caucasian team members complained about Hill, see, e.g., id. ¶¶ 23, 24, 31, 39, 42, and sought his removal from his leadership position, see, e.g., id. ¶¶ 45, 46, 49. And the ongoing dispute over the Caucasian team members’ use of the baboon logo and their joking references behind Hill’s back to the baboon logo as “racist,” id. ¶ 19, give rise to a reasonable inference that the Caucasian team members’ treatment of Hill was racially discriminatory. Second, “State admits it removed Hill based on the complaints from the Caucasian Team 2 members, making their complaints the proximate cause of the actions taken against Hill.” Id. ¶ 117. Third and finally, a fair inference can be drawn that Collura and Rowan, Hill’s supervisors, should have known that the Caucasian team members’ complaints were racially motivated. See id. ¶ 120. The complaint alleges: (1) a clear fissure between Hill and Whitaker and the Caucasian team members from the very start of Hill’s tenure, see id. ¶¶ 19–29; (2) that Hill complained to his supervisors about team members defying his order not to use the racially offensive baboon logo, see id. ¶ 47; and (3) that several of the Caucasian team members’ complaints about Hill had a questionable basis, see, e.g., id. ¶ 37, 43; yet, (4) “[m]anagement acted on the Team’s accusations against Hill without investigating the facts,” id. ¶ 120. Accepting all of these allegations as true, Collura and Rowan acted negligently by not investigating the Caucasian team members’ complaints before removing Hill from his leadership role.3 And because Collura and Rowan acted negligently with respect to the information the Caucasian team members provided, the racial bias of the team members is imputed to them. See Vasquez, Inc., 835 F.3d at 276. Accordingly, the Court will deny the Secretary’s motion to dismiss the race discrimination claim based on Hill’s removal from his leadership position. 4
4 In contesting this conclusion, the Secretary places heavy reliance on Tallbear v. Perry, 318 F. Supp. 3d 255 (D.D.C. 2018). In that case, the Court dismissed a Title VII race discrimination claim by a plaintiff who alleged that her co-workers had continued to use the word “Redskins” in spite of her objection to the term. Id. at 260–61. But Tallbear’s co-workers used the term in the context of discussing the Washington Redskins, a local professional football team, and there was no indication that they used the word as a racial slur or directed it at Tallbear herself. Id. at 261. Here, in stark contrast, Hill has alleged that his team members explicitly referred to the baboon logo as “racist” and ordered hundreds of dollars’ worth of baboon-branded gear behind his back after he, the team leader, explained why the logo was offensive and ordered the team to stop using it. Compl. ¶ 19. Moreover, and more importantly, Hill’s co-workers engaged in extensive and targeted efforts to remove him from his supervisory role, see id. ¶¶ 23, 24, 31, 39, 42, 45, 46, 49, and those efforts ultimately succeeded, id. ¶ 56.
Background excerpted from court record:

The Office consists of several teams of agents who deploy worldwide to provide specialized training to overseas personnel, as well as security support for potential and actual crises. Id. ¶ 10. At all times relevant to this case, Hill’s first-level supervisor was Justin Rowan, and his second-level supervisor was Nicholas Collura, Deputy Director of the Office. Id. ¶ 11. Both Rowan and Collura are Caucasian. Id.

In March 2014, Hill was assigned to Team 2 of the Office as its Team Leader. Id. ¶ 12. Another Special Agent, Steven Whitaker, was assigned to Team 2 at that same time. Id. ¶ 15. Both Hill and Whitaker are African American. Id. When Hill and Whitaker joined Team 2, the team consisted of four members, all of whom were Caucasian. Id. ¶ 14. The four Caucasian team members described themselves as close friends. Id.

When Hill and Whitaker joined Team 2, each of them found a printed image of a baboon—the team’s unofficial logo—at their new desks. Id. ¶ 16. Both Hill and Whitaker were offended by the logo. Id. When Hill officially took over as Team Leader in May 2014, Hill held a team meeting. Id. ¶ 18. At this meeting, Hill explained that he found the baboon logo offensive because of the history of racially derogatory references to apes. Id. Hill instructed the members of Team 2 to stop using the baboon as the team logo. Id.

The Caucasian members of Team 2 continued to use the baboon logo nevertheless. Id. ¶ 19. After Hill banned the logo, the Caucasian team members used their government email accounts to order hundreds of dollars’ worth of baboon coins, badges, stickers, and hats. Id. They jokingly referred to the baboon logo and the word baboon as “racist.” Id. They did not tell Hill or Whitaker that they were ordering the baboon gear. Id. Hill soon discovered that his team members were disregarding his order, though; one agent’s phone lock screen was the baboon image and another agent was handing out baboon coins to soldiers and local contacts. Id. ¶ 20

After Hill banned them from using the baboon logo, the Caucasian members of Team 2 began discussing requests to transfer off Team 2. Id. ¶ 21. Some team members wrote copious notes in support of their requests. Id. For instance, Special Agent Dan Balocki complained that Hill “deferred to Whitaker” on tactical decisions, and that Hill gave more credence to Whitaker’s suggestions than to Balocki’s. Id. ¶ 24. Special Agent Steve Stockl described a meeting in which Whitaker had taken a “very hostile tone” with the Caucasian team members and Hill had failed to reprimand him; Stockl claimed that he “totally lost respect” for Hill as a result. Id. ¶ 23.

On June 5, 2014, Team 2 was completing a training exercise down a flight of stairs under simulated fire. Id. ¶ 25. Hill lost his balance and placed his hand on the shoulder of the team member standing in front of him, Balocki. Id. At the bottom of the stairs, Balocki turned to Hill and cursed at him; Hill cursed back and told Balocki to continue the drill. Id. ¶ 26. After the training, Stockl and Balocki met with Rowan (Hill’s first-level supervisor). Id. ¶ 27. Stockl told Rowan that he did not want to work with Hill or Whitaker and did not want to attend an upcoming training with them. Id. Later that day, Rowan discussed the incident with Hill but declined to reprimand or discipline him. Id. ¶ 28.

In August 2014, several State employees trained together at a shooting range for their upcoming deployment. Id. ¶ 30. While the agents joked about the way they looked in the required bulletproof gear, Hill jokingly referred to agent Jennifer Socha as fat. Id. Socha took offense and Hill apologized. Id. Nevertheless, Socha mentioned the situation to her supervisor, Special Agent Jeffrey Titus, id. ¶ 31, who spoke with Hill after the training and requested that he not speak to Socha that way, id. ¶ 32.

On September 9, 2014, Team 2 deployed to the Central African Republic. Id. ¶ 35. Stockl began documenting events immediately upon his arrival in the Central African Republic

and attributed numerous problems with the deployment to Hill, regardless of whether Hill was the individual actually responsible. Id. ¶ 37. A few days after arriving in the Central African Republic, Stockl began communicating with Balocki and other agents about requesting a transfer off of Hill’s team. Id. ¶ 38. Balocki and Stockl discussed and coordinated the language and timing of their requests. Id. On October 1, 2014, Stockl sent Rowan a transfer request in which he stated that Hill “still has not earned my trust or respect.” Id. ¶ 39.

On October 10, 2014, while escorting two protectees to the airport, Team 2 encountered a road block and reversed course. Id. ¶ 40. Upon their return to the embassy compound, Hill and Whitaker had a short argument about a tactical decision, and Stockl joined in. Id. During the argument, Hill told the other agents to take the discussion “out back” to avoid disturbing the Acting Ambassador. Id. Immediately following the incident, Hill spoke with Collura (his second-level supervisor), but Collura did not document the event or mention it to Hill again during the remaining three weeks while Collura was deployed with the team. Id. ¶ 41.

Later that same day, Stockl emailed Rowan regarding the incident. Id. ¶ 42. Stockl accused Hill of “attempt[ing] to instigate a fight” between them and claimed that Hill had told Stockl, “let’s go out back and handle this like real men.” Id. Stockl reiterated his previous transfer request to Rowan. Id. On October 16, 2014, Balocki emailed Assistant Team Leader Palmer Jones about using the October 10 incident to persuade Rowan to remove Hill from Team 2. Id. ¶ 45. On October 28, Jones emailed Rowan requesting a meeting upon the team’s return from the Central African Republic; Jones’s email copied all Team 2 members except for Hill and Whitaker. Id. ¶ 46.

On November 5, 2014, Hill saw Jones with baboon coins. Id. ¶ 47. Hill emailed Rowan, Collura, and the other members of Team 2 and expressed his dismay that the Team had not followed his direct order to stop using the baboon logo. Id. He included links to articles explaining why such images offend African Americans. Id. Later that day, Collura emailed Office staff banning the use of unofficial team symbols, but Office staff continued to use the symbols after Collura’s email. Id. ¶ 48.

On November 10, 2014, the four Caucasian members of Team 2 informed David Jordan, an Office supervisor, that they were not willing to remain on a team led by Hill. Id. ¶ 49. Jordan told them that Rowan would speak with Hill and that there was a “very good chance” that Hill would not continue to be their Team Leader. Id.

On December 8, 2014, Socha emailed Titus (her own supervisor) to make new allegations about Hill. Id. ¶ 51. She claimed, for the first time, that Hill had made a comment about rubbing sunscreen on her during the August 2014 training. Id. Soon thereafter, Titus informed Rowan of this additional allegation. Id. ¶ 53.

On December 11, 2014, Rowan met with Hill and informed him that he had been the subject of “complaints.” Id. ¶ 54. He informed Hill, for the first time, that Socha had filed a complaint against him for allegedly harassing her and patting her stomach on the shooting range in August 2014. Id. This was the first time that Hill had heard that Socha alleged that he touched her. Id. Rowan asked Hill to leave Team 2 voluntarily, id., but Hill declined to do so, id. ¶ 55. On December 15, Rowan told Hill that he would not be allowed to train or deploy with Team 2. Subsequently, Collura and Rowan removed Hill from his leadership position and issued him a letter of admonishment. Id. ¶ 56. Upon his removal as Team Lead, Hill was offered a non-supervisory position, which he declined. Id. ¶ 58. After that point, he held no position and was not assigned any official duties for a time, before he was assigned to training duties. Id.

On October 5, 2014, Hill received notice of a proposed one-day suspension based on one charge of Improper Personal Conduct. Id. ¶ 67. The three specifications supporting this charge arose from allegations about Hill’s conduct toward Socha during the August 2014 training session. Id. Hill admitted to calling Socha “fat” in the context of banter among the agents, but did not make any other comment about her weight, touch her stomach, or make any comment about sunscreen. Id. ¶ 68. On January 8, 2016 a Deputy Assistant Secretary for State’s Bureau of Human Resources sustained the one-day suspension against Hill. Id. ¶ 69.

On March 12, 2015, Hill filed a formal race discrimination and reprisal complaint with the Equal Employment Opportunity Commission (EEOC) concerning his removal from team leadership, restriction from travel and training, issuance of a letter of admonishment, and subjection to a hostile work environment. Id. ¶ 81; see also Dkt. 9 (Mot. to Dismiss) Ex. 12 at 1 (EEOC letter listing these four “Accepted Allegations”). Hill’s complaint “did not seek to overturn the one-day suspension” that he had sustained following Socha’s allegations. Compl. ¶ 76. In 2018, an EEOC Administrative Judge held a hearing on Hill’s complaint, but as of the commencement of this litigation, no final agency decision had been issued. Id. ¶ 82.2

Separately, Hill appealed his one-day suspension to the Foreign Service Grievance Board (the Board). The Board found that State did not establish, by a preponderance of the evidence, that Hill had made the alleged sunscreen comment. Id. ¶ 71. The Board found it inherently improbable that the sunscreen comment occurred as State claimed it did, given that State’s various witnesses testified inconsistently regarding the alleged comment. Id. But the Board concluded that State had established by a preponderance of the evidence that Hill made the alleged comment regarding Socha’s weight and touched Socha’s stomach. Id. ¶ 72. On April 4, 2018, the Board upheld Hill’s one-day suspension on those two grounds. Id. ¶ 71.

Before the Board, Hill argued that his suspension should be overturned because the witnesses against him were motivated by racial animus. Dkt. 9, Ex. 7 (Board Decision) at 12. In order to allow the Board to consider this and other related allegations, the parties filed a joint memorandum distinguishing Hill’s challenge to his suspension from the racial discrimination claims then pending in the parallel EEOC proceeding. Id. Ex. 13 (Joint Memorandum). In that memorandum, Hill and State jointly stipulated that the matter before the Board did “not involve a claim of racial discrimination, and thus there is no need for the Board to determine whether it is permitted to address any such claim.” Id. at 1–2. The memorandum subsequently reiterated that Hill “has not argued that his one-day suspension should be overturned because it was racially discriminatory.” Id. at 2.

Notwithstanding these representations, the Board concluded that it was precluded from considering Hill’s claims that the witnesses against him were racially biased given the overlap between those claims and the ones at issue before the EEOC. Board Decision at 18–20. Hill requested that the Board reconsider its decision concerning the preclusion of his biased-witness arguments. Compl. ¶ 77. But on August 1, 2018, the Board reaffirmed its decision, again stating that it was precluded from considering Hill’s claims of bias. Id

CONCLUSION

For the foregoing reasons, the Court grants in part and denies in part the Secretary’s Partial Motion to Dismiss. Dkt. 9. Specifically, the Court grants the motion with respect to Count II (the Title VII race discrimination claim regarding Hill’s one-day suspension), which is dismissed for failure to exhaust administrative remedies, but denies the motion with respect to Counts III (the Title VII race discrimination claim regarding Hill’s removal from his leadership position) and IV (the Title VII retaliation claim). Count I (the APA claim regarding the Board’s decision), which the Secretary did not challenge, survives in full. A separate order consistent with this decision accompanies this memorandum opinion.

Read in full here: https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2018cv2518-20