Posted: 7:01 pm ET
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This is not a new case but we have not been aware of this case until we started digging around.  In 2009, a Policy Analyst with the Department of Homeland Security (DHS) worked as a liaison to the State Department (the Agency).

According to EEOC records, in and around May 2009, the DHS employee (Complainant) was on a tour of duty in Germany, working as an Agency employee. Complainant asserts that, on May 10, 2009, while visiting a friend outside of duty hours, she was sexually assaulted by an individual who, at the time, was a State Department contractor. The incident took place in a State Department-leased apartment in Prague, Czech Republic. The EEOC decision dated June 16, 2011 notes that the accused individual subsequently became a permanent employee of the Agency.

The complainant had to make several attempts to report the sexual assault. She was eventually directed to contact the EEO office at DHS, who took no action, and refused to take her case because the attacker was not a DHS employee. She was sent to the Violent Crimes Unit of Diplomatic Security, who investigated the case and referred it to DOJ for prosecution. DOJ took no action. A DS investigator advised her to contact State/OCR. She interacted with that office for 6-7 months but these “activities focused primarily on resolving the matter as opposed to exploring or clarifying the extent of any EEO implications” according to the EEOC.

Whiskey Tango Foxtrot!

Then State/OCR dismissed the case for failure to state a claim and untimely contact with an EEO counselor.

Sexual assault is a crime punishable by law. Sexual assault and sexual harassment are not the same.  Sexual assault describes the catch-all crime that encompasses unwanted sexual touching of many kinds, with links to state penal code and federal law on related crimes.  It includes rape, forcible sodomy (oral or anal sex), and other unwanted sexual contact that is aggravated, abusive, or wrongful (including unwanted and inappropriate sexual contact) or attempts to commits these acts.

FindLaw notes that Federal law directs judges to examine a number of factors, including the defendant’s criminal history and his or her acceptance of responsibility, when setting a punishment. The federal law criminalizing sexual assault sets a maximum sentence of 20 years in prison, and also provides for fines. In addition, federal law provides that those convicted of sexual assault must compensate their victims for any expenses directly related to the crime. This can include costs for medical care, physical or occupational therapy, attorney’s fees, and other related expenses.

But first, you’ve got to investigate, charge the perpetrator and find him or her guilty.

The complainant here alleged that she was sexually assaulted in USG-leased housing, why did people send her to an Equal Employment Opportunity office for godsakes? Why did DOJ take no action? If there was probable cause for Diplomatic Security to refer this case to DOJ for prosecution, how did the contractor become a State Department employee? This incident happened in 2009, the victim did not get to file her case until a year later, and the EEOC did not make a decision until 2011. At some time during this lengthy process, the victim resigned from federal service. The unnamed alleged attacker may still be in the bureaucracy.

Sure, we could call this abysmal systems failure.

But just about every part of this process was deplorably bad. And the people who worked in the system made it so.

Excerpts below from the EEOC decision (we underlined some parts for emphasis):

Reporting sexual assault — Whiskey Tango Foxtrot!

In and around May 2009, Complainant was on a tour of duty in Germany, working as an Agency employee. Complainant asserts that, on May 10, 2009, while visiting a friend outside of duty hours, she was sexually assaulted by an individual who, at the time, was an Agency contractor.1 This individual subsequently became a permanent employee of the Agency. The record does not indicate in what capacity he was employed or the date his employment began.

After making several attempts to report the sexual assault and being redirected to various components in DHS, Complainant was eventually directed to contact DHS’ EEO office, which she did on June 1, 2009. The record suggests that DHS engaged in limited EEO counseling, but took no action to process Complainant’s allegations as a potential EEO complaint.  Instead, approximately a week after her June 1 contact, DHS effectively dismissed Complainant from the EEO process, concluding that it could not entertain her issues because the alleged attacker was not its employee.  DHS then advised Complainant to contact the Agency, which she did on June 11, 2009.

Soon thereafter, a criminal investigation was initiated by the Violent Crimes Unit of the Agency’s Office of Diplomatic Security. Complainant was cautioned to refrain from discussing the May 10 incident until the investigation was complete. In October 2009, the Agency referred the matter to the Department of Justice (DOJ) for prosecution upon finding probable cause to believe Complainant’s allegations were true. For reasons not reflected in the record, DOJ took no action.

On October 23, 2009, pursuant to the advice of the Violent Crimes Unit investigator, Complainant contacted the Agency’s Office of Civil Rights (OCR). During the next six or seven months, she interacted with various OCR representatives whose activities focused primarily on resolving the matter as opposed to exploring or clarifying the extent of any EEO implications.  On May 24, 2010, Complainant filed a sparsely worded formal complaint which contained a single averment of discrimination relating to the sexual assault and several items of requested relief.

In a September 28, 2010 FAD, the Agency dismissed the May 24 complaint upon finding that it failed to state a claim and that Complainant failed to timely contact an EEO counselor.  The instant appeal followed. We note that Complainant is pro se.

Contentions on appeal

In a statement accompanying her appeal, Complainant argues that the chronology of relevant events belies the Agency’s finding that she was untimely in initiating EEO counseling. She also appears to raise questions regarding the trustworthiness of the FAD (final agency decision) by noting several errors of fact reflected in the Agency’s reasoning. The Agency filed no response.

EEOC reversed the State Department’s dismissal

The Agency does not dispute that the alleged assault occurred on May 10, 2009.  Nor does it dispute that Complainant first sought counseling on June 1, 2009 with DHS. The Agency’s finding that Complainant was untimely is premised on the apparent view that her DHS contact had no significance under subsection 105(a)(1). We conclude that it did. To rule otherwise would require the Commission to ignore the plain wording of the subsection, which provides only that aggrieved individuals contact “a” Counselor within the stated time. There is no requirement that the Counselor be from the agency that receives the complaint.3  In this case, Complainant logically initiated contact with a Counselor in the agency where she was employed.

It is self-evident that June 1, 2009 is within 45 days of May 10, 2009. We, therefore, find that Complainant’s counseling contact was timely and reverse the Agency’s dismissal on this ground.

Alleged perpetrator went from contractor to employee

The Commission’s regulation at 29 C.F.R. § 1614.107(a)(1) authorizes an agency to dismiss a complaint that fails to state a claim that can be remedied through the EEO process.  In its FAD, the Agency concluded that Complainant failed to assert a remediable claim because neither she nor her alleged attacker was functioning in work status when the “event in question” occurred. The non-work status of Complainant and her alleged attacker, on May 10, 2009,  would likely be dispositive of this appeal were we to find that the “matter” in question, when the complaint was filed, was clearly confined to the alleged assault.4 Such a finding cannot be made, however, on the basis of the current record.

We are mindful, initially, that the counseling process was unduly erratic and prolonged in this case. Indeed, more than a year had elapsed before Complainant was provided the opportunity to file a formal complaint. Several events occurred, in the interim, which are potentially relevant to the sufficiency of her complaint.

For instance, by the time the complaint was filed, there had been a change in status of the individual the Agency believed had “probably” assaulted Complainant. He went from being an Agency contractor to an Agency employee. Although it is not clear whether, as a DHS “liaison” to the Agency, Complainant had (or would have)  been required to work with (or for) this individual, we find it significant that, at some point prior to filing the complaint, Complainant resigned from federal service. The record suggests that the resignation was under duress and may have related to a requirement that she refrain from discussing her ordeal.  See Complaint File, April 21, 2010 email from Complainant to named Agency official (“I don’t want to be forced to keep [the attacker’s] secret when I’m the one being hurt and losing.”)

At this juncture, we do not know how (if at all) Complainant’s employment may have been affected by the May 2009 incident. The record is wholly undeveloped in this regard. However, we can say that, if the Agency had directed Complainant to remain silent in order to protect the alleged attacker or facilitate his employment, it could hardly be found (as the Agency did) that the incident did not “involve” any term or condition of her employment. Without suggesting that the known facts in this case, by necessity, implicate a potential claim of “sexual harassment,” it is relevant to note that the Commission has recognized that harassment which occurs outside of work may state a claim when the effect of the off-duty incident creates an “intolerable influence on the employee’s working conditions.” Kokangul v. Department of the Army, EEOC Appeal No. 01A61380 (July 6, 2006)

Deficient EEO processing — looking at you S/OCR

We make no finding with regard to the existence of a viable discrimination claim arising from the May 2009 incident. We merely find that deficiencies in processing, as well as the record, render it impossible to determine the full measure of the concerns Complainant sought to pursue through the EEO process.  The quality of the EEO counseling, provided by the Agency and DHS, left much to be desired in terms of ensuring the record would be adequate to assess the sufficiency of any formal complaint that Complainant might file.

Incomplete files

It is unclear, for example, why the Complaint File does not include the Violent Crime Unit’s report, given its obvious relevance to the matter that prompted Complainant to seek EEO counseling. Also inexplicably missing from the record is a “statement” Complainant apparently prepared during the course of the counseling process.6 The absence of this and other information renders the record insufficient to determine the nature of any claim Complainant may have sought to assert.

Should have – what, whose contractor?

Finally, we note that the Agency also relied on 29 C.F.R. § 1614.106(a) as a ground for dismissing the complaint, finding that Complainant should have filed it against DHS because the alleged attacker was a DHS contractor.7 This ground is also found to be without merit. There is nothing in the record that contradicts the statements made by Complainant and others that her attacker was a contractor (and later an employee) of the Agency—not DHS.

*

The complainant here would have been under chief of mission authority in Germany where she was assigned a tour of duty. We don’t know what would have been her status in the Czech Republic where the alleged attack took place. But the incident occurred in a State Department-leased apartment. So we expect that the State Department would have been the investigating authority.  This case happened in 2009 and decided by the EEOC in 2011.  This got us thinking on what procedure is in place for reporting sexual assault in the Foreign Service.

We’ve spent the last several days trying to locate the Foreign Service Manual or Foreign Affairs Handbook for the procedure in reporting sexual assault in the Foreign Service, but have been unsuccessful, so far. We were able to find 7 FAM 1940  REPORTING CRIME VICTIM CASES, but this section only apply to non-official, private Americans and the reporting covers only crimes reported to a consular officers abroad by victims, their families or by the host country government and which result in a consular officer or officers providing substantial assistance to the victim.

We’ve asked the State Department for its sexual assault regs and guidance; we’ve received a response but it deserves a separate post.

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