@StateDept to Hold “Harassment in the Workplace” Session But First, Read This FSI Sexual Harassment Case

Posted: 3:40 am ET

 

For those attending the event, here are a few items to read though this is not an exhaustive list. Help us ask these presenters questions that State/PA and State/DS have long ignored:

While we are on the subject, let us revisit a classic case of sexual harassment, where the State Department, specifically one of the presenting offices in the January 11 session had determined that “the alleged acts of sexual harassment did not occur” only to be reversed by the EEOC.

On January 4, 2012, Complainant filed Complaint 24 alleging that the Agency discriminated against her based on her national origin (Arabic/Iraqi), sex (female), religion (Christian), color, and in reprisal for prior protected EEO activity under Title VII when:

3. Her teaching contract was not renewed after August 5, 2011;

4. She was subjected to a hostile work environment characterized by, but not limited to, name calling and sharing an office.  She specifically asserted that since her conversion to Christianity, she was taunted by her Iraqi colleagues, who called her a “peasant,” a “prostitute,” a “bitch,’ and a “daughter of a dog.” She asserted further that she had been told that she had “sold her religion” and had a shoe thrown at her.  Complainant further asserted that she had been the victim of an unsolicited sexual overture by a colleague; and

5. On September 23, 2011, she was not selected for a full time teaching position.

The Agency completed its initial investigation on Complaint 1 in November 2012.  It did not complete an investigation on Complaint 2.  On Complaint 2, according to the Agency, Complainant did not submit an affidavit for the investigation.  Around that time – on March 14, 2013 – Complainant signed forms withdrawing Complaints 1 and 2.5  The Agency ceased processing Complaint 2, but went ahead and issued a FAD on Complaint 1 on May 13, 2013.

In its FAD, the Agency found no discrimination on Complaint 1.  Complainant filed an appeal.  On appeal, the Agency did not note that Complainant previously withdrew her complaint.

In EEOC Appeal No. 0120132236 (May 16, 2014), we recounted that Complainant was provided the right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge, but there was no evidence she did so.  We reversed the FAD on the ground that the investigation was inadequate.  Unaware that that Complainant withdrew Complaints 1 and 2, we ordered the Agency to do a supplemental investigation and to consolidate Complaint 2 with Complaint 1 if the Agency was still processing Complaint 2 and had not yet issued a final decision thereon.

In its request for reconsider EEOC Appeal No. 0120132236, the Agency argued that it issued its FAD on Complaint 1 in error, and that Complainant previously withdrew Complaints 1 and 2.  It submitted a copy of its letter to the EEOC compliance officer about the withdrawal of Complaint 1, and Complainant’s signed withdrawals.  We denied the request on the ground that it was untimely filed, and repeated our order in EEOC Appeal No. 0120132236.

Following a supplemental investigation on Complaint 1, the Agency issued a new FAD finding no discrimination therein.  The Agency found that Complainant was not denied the opportunity to attend training and to proctor tests, and the alleged acts of sexual harassment did not occur.  The Agency recounted that it ceased processing Complaint 2 after she withdrew it.6

The EEOC’s decision says that the “Complainant was not subjected to discrimination regarding issue 2” but it determined that “Complainant was subjected to discrimination based on her sex regarding issue 1 – sexual harassment.”

This case which was filed in 2010 was decided by the EEOC on July 7, 2016. Six years. The State Department was ordered to take the following remedial actions within 150 days after the decision became final, and was directed to submit a report of compliance, as provided in the statement entitled “Implementation of the Commission’s Decision.”  The report shall include supporting documentation of the agency’s calculation of back pay and other benefits due complainant, including evidence that the corrective action has been implemented.”

1. The Agency is directed to conduct training at FSI, School of Language Studies for all management and staff in the Arabic Section.  The training shall focus on how to identify and prevent sexual harassment connected with employment.14

2.  If S2 is still employed with the Agency, it shall consider taking disciplinary action against him.  The Agency shall report its decision.  If the Agency decides to take disciplinary action, it shall identify the action taken.  If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline.

3.  The Agency shall gather evidence on compensatory damages, including providing Complainant an opportunity to submit evidence of her pecuniary and non-pecuniary damages regarding being sexually harassed.  For guidance on what evidence is necessary to prove pecuniary and non-pecuniary damages, the parties are directed to EEOC Enforcement Guidance: Compensatory and Punitive Damages Available Under § 102 of the Civil Rights Act of 1991 (July 14, 1992) (available at eeoc.gov.)  Thereafter, the Agency shall calculate damages, pay Complainant any damages awarded, and issue a new FAD on damages appealable to the Commission.

The State Department was also directed to post the EEOC order:

The Agency is ordered to post at its Foreign Service Institute, School of Language Studies copies of the attached notice.  Copies of the notice, after being signed by the Agency’s duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted.  The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material.  The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled “Implementation of the Commission’s Decision,” within 10 calendar days of the expiration of the posting period.

Continue reading

Advertisements

Coming Soon – Accountability Review Board Havana For Mysterious Attacks in Cuba

Posted: 3:34 am ET

 

The State Department’s new Under Secretary for Public Diplomacy and Public Affairs Steve Goldstein  did a press gaggle on January 9 and was asked about the convening of an Accountability Review Board for the attacks against American diplomats in Havana. He said that he expects announcements of the chair and the members of the board available for release within the next week. He also told the press “We believe that the Cuban Government knows what occurred, and so what we’d like them to do is to tell us what occurred so we can ensure this doesn’t happen again.”

He told members of the media that the USG “is not considering restoring the staff” at US Embassy Havana, and that the State Department is “providing extensive medical care to people that need it,” and that the agency “have also made it clear that if people do not want to serve in that particular embassy, they do not have to.”

When asked about Senator Marco Rubio’s comments that it’s against the law that it took –rather than 60 or 120 days– almost a year to stand up ARB Havana, U/S Goldstein responded:

UNDER SECRETARY GOLDSTEIN: Right. Well, I – we have great respect for the senator, and he shares our concern about trying to reach resolution on this matter. It took time to set up the accountability review board because we were hopeful that we would be able to know what occurred. We were – the investigation has taken longer than we anticipated, and – but it is now time to go forward. And again, we would expect the – I would expect the names to be announced over the next several days. I do have the names, I just can’t – I’m not – I want to make sure that the people have been notified.

QUESTION: — by failing to announce or create this review board back in July, that the – that you had confirmed that people were seriously wounded by March or May, that the law requires if you know that a State Department personnel is seriously wounded, that you create a review board within 60 days or tell Congress why you’re not doing so. That is the clear letter of the law. You did not follow it. That’s what he claims. What is your response to that?

UNDER SECRETARY GOLDSTEIN: Right. We don’t agree with that. The assistant secretary today made clear, and we have said too, that it took us time to get the investigation in place. The investigation is continuing, and we believe that we have the – had the authority to determine when the accountability review board should be set in place. I think let’s not lose focus here. There’s 24 people that had injuries, and those people are receiving treatment, and we’ve had over 20 conversations with the people of Cuba. We’ve – the government investigators have been down four times; they’re going down again within the next few weeks. And so our primary goal at the present time is to find out why this occurred, to prevent it from happening again in Cuba and the embassy of Cuba or in any other place where American citizens are located.

When an ARB should be convened is in the rules book once it was determined that the incident was security-related with serious injury.  For folks who want a refresher, per 12 FAM 030, the Accountability Review Board process is a mechanism to foster more effective security of U.S. missions and personnel abroad by ensuring a thorough and independent review of security-related incidents.

Security-related incidents are defined as “A case of serious injury, loss of life, or significant destruction of property at or related to a U.S. government mission abroad, or a case of a serious breach of security involving intelligence activities of a foreign government directed at a U.S. mission abroad (other than a facility or installation subject to the control of a U.S. area combatant commander), and which does not clearly involve only causes unrelated to security.”

(See U.S. Diplomats in Cuba Sonic Attacks: As Serious as Mild TBI/Central Nervous System Damage?)

12 FAM 032.1 updated in October 2017 notes that the ARB/Permanent Coordinating Committee will, “as quickly as possible after an incident occurs, review the available facts and recommend to the Secretary to convene or not convene a Board.  (Due to the 1999 revision of the law requiring the Secretary to convene a Board not later than 60 days after the occurrence of an incident, except that such period may be extended for one additional 60-day period, the ARB/PCC will meet within 30 days of the incident if enough information is available.) In addition, the ARB/PCC will meet yearly to review the ARB process, existing policies and procedures, and all past ARB recommendations, and ensure that any necessary changes are effected.”

So we gotta ask an uncomfortable question for the Tillerson State Department — is it possible that no ARB Havana was convened because the eight positions who are members of the PCC, an entity tasked with making recommendations to the Secretary was not filled or only partially filled?

Did the ARB/PCC meet on the Havana incidents last year? What recommendations were made to the Secretary? Why are they convening an ARB just now?

#

Amb. Hoekstra Presents His Credentials to the King, Then Gets Properly Grilled By the Dutch Press

Posted: 2:44 am ET
 

 

So the new U.S. Ambassador to the Netherlands Peter Hoekstra presented his credentials to King Willem-Alexander on January 10. The same day, he also faced a grilling from members of the Dutch press. And if that’s not memorable enough, the Dutch Review has a screaming headline that says “It’s Lying Pete Hoeskta’s first day as the US Ambassador in the Netherlands.”

We are having a brain freeze trying to remember if anything like this ever happened before.  Oh, we can’t remember anything. Just that there was no way the embassy could have avoided this incident. Had Ambassador Hoesktra offered a fuller apology after that meltdown of an interview, he would not have been facing a fiery press on his first official day as representative of the United States to the Kingdom of the Netherlands.

NLtimes reported that when asked about his previous controversial comments, he announced, “I won’t comment on the matter anymore”. Apparently, he told the press that “now that he is a representative of the American administration, his personal opinions or comments are no longer what matters.” As if somehow “the matter” would simply go away.  It won’t. And Dutch reporters will not stop asking just because Ambassador Hoekstra refuses to comment. And with every future event, we will get similar video clips.  So we doubt very much if this is the end of it. He will get a reminder about this at his every encounter with the Dutch press.

Also see New U.S. Ambassador Peter Hoekstra Makes Splash With Whoppers on Dutch TVAmb. Designate Hoekstra Issues an “Apology,” Gets Roasted on TwitterNomination: Ex-Congressman Peter Hoekstra to be U.S. Ambassador to the Netherlands).

#

PSA For New Ambassadors Preparing to Ditch Their DCMs, Yo – Be Careful What You Wish For

Posted: 1:53 am ET

 

Remember in 2011 when we posted about the search queries in our blog for “Ambassador window of time to ask DCM to leave” and “When can the ambassador ask the DCM to leave”? (see Which Ambassador is planning to unload his/her DCM shortly and other curtailment news).

The Ambassador-DCM relationship is among the most important in determining the success of a diplomatic mission. At some point if it doesn’t work, a former DCM and now retired FSO who spoke from experience told us, “it’s better to move on.”  But that’s altogether different from not even giving the new working relationship a chance to work.

We have it in good authority that a reminder is needed about tossing out a deputy ambassador without considering the consequences. Below is a post from 2011 that we are reposting as a Public Service Announcement for the newbies:

In diplo-speak, the query is about curtailment which means shortening an employee’s tour of duty from his or her assignment. It may include the employee’s immediate departure from a bureau or post.  In this instance, possibly that of the deputy chief of mission in some unknown embassy (where about a third of total posts are encumbered by political ambassadors).

The Foreign Affairs Manual, fondly known as the FAM says that curtailment is an assignment action, not a disciplinary one. Ha-ha! Oops, did I laugh out loud? Hookay, it may not be a disciplinary one but it follows the employee around, kind of like a dark cloud that follows Eeyore all over the place.

Now on to the law of unintended consequences —

Remember the U.S. Ambassador to Denmark who according to the OIG report asked her DCM to leave post in January 2010?  That resulted in a DCM staffing gap of 9 months. That’s 270 days where the chief of mission (that is, the ambassador) even with an acting DCM may be forced to function as her/his own executive officer dealing with the nuts and bolts of running an embassy.

The regs says that the ambassador can initiate an involuntary curtailment, which gives the chief of mission wide authority over this matter.  In fact, one political ambassador went though five DCMs during his tenure as George W’s ambo in paradise. The whole two Bush terms. We even wrote a tanka about it.  Another political ambassador went through seven permanent and temporary DCMs in less than one presidential term.  Only one served more than six months! That one deserves a super tanka, I know, just haven’t got around to writing it.

Anyway, kicking out the embassy’s #2 officer may seem easy enough – he/she is not your relative and the USG pays for him/her to be relocated elsewhere but we must point out something kinda important here. See, State Department assignments are usually arranged so that folks have assignments a year before they move or rotate to their new posts. Which means, when the chief of mission unloads a staffer, particularly in the higher ranks, there isn’t anyone waiting in the wings to take over at a moment’s notice. Except sometimes, the mothership sends in a retired Foreign Service Office to be temp DCM. Which is fine and all, except what happens if you don’t like him/her, too? I imagine that’s how you could end up as a record holder of sorts or in the top list of folks who should get Bob Sutton’s book for Christmas. And that’s not something you really want to hang on your wall next to that stuffed moose head, trust me.

So like Eminem sings it —

….be careful what you wish for

cause you just might get it and if you get it

then you just might not know what to do wit’ it ….

You’re welcome!

#