Grievant Prevails Over Diplomatic Security’s Duplicative Disciplinary Actions

 

Via FSGB Case No. 2018-027

HELD – The Board held that the Department failed to meet its burden of proving that it did not violate agency policy when it imposed a second round of discipline (a two-day suspension without pay) after grievant had previously received several oral admonishments) for the same act of misconduct.

… Grievant accessed the CCD and reviewed the female friend’s visa records. He then sent an email on May 24, 2013 to the Consular Officer who had adjudicated the visa application, asking why the visa had not been approved and whether there was anything the applicant could do to “overcome” the disapproval.

The email read in part:

I explained to [the inquiring REDACTED Official] that the visa issuance process is an independent process done by the consular section at the respective embassy [sic] and that I have no involvement in the process or adjudication of the application, but that I would check with the embassy to see if there was anything that she could do or provide to overcome the refusal. Is there anything the applicant could do or provide to overcome the 214(B) refusal? Or is it pretty solid given no local employment and only having recently started her studies in business admin?

Grievant did not receive a response to his inquiry and he took no further action

CASE SUMMARY – In May 2013, grievant, a Diplomatic Security (DS) Special Agent, received a request from a professional colleague inquiring about a visa denial of a female friend of another colleague. Grievant accessed the Consular Consolidated Database (CCD) to determine who the Consular Officer was for the visa denial and drafted an email to that officer inquiring whether there was anything his contact could do regarding the denial. Within a few days, the Visa Chief at the post that made the visa decision, wrote to the Consular Integrity Division of DS (DS/CID) advising that grievant had apparently accessed the CCD without a work related need to do so. DS/CID passed the matter to the Chief of the Office of Investigations and Counterintelligence, Criminal Division (DS/ICI/CR). The Chief of DS/ICI/CR consulted with the Supervisory Special Agent of DS/CID and with the Chief of the Criminal Fraud Investigations Branch (CFI) before deciding to refer the matter to grievant’s immediate supervisors for whatever action they deemed appropriate.

Two of grievant’s supervisors opened administrative inquiries in June 2013, contacted grievant, learned from him that he immediately acknowledged the improper access of the CCD and each decided to give grievant an oral admonishment. One additional supervisor also admonished grievant orally. All management officials concluded that no further action was necessary. Grievant was so informed by at least two of these officials.

In the fall of 2014, the DS Office of Special Investigations (DS/OSI) informed grievant that it was opening an investigation into the same matter. During an interview with grievant and his counsel, grievant advised that he had already been counseled for this act of misconduct. He provided proof that he had been admonished; however, he was proposed for a three-day suspension that was later mitigated to two days. The suspension proposal was sustained by the Department and grievant served the two-day suspension.

A grievance regarding duplicative discipline was denied by the agency. On appeal, the Board concluded that all regulatory steps had been followed by grievant’s supervisor who initially determined that he was the appropriate official, in consultation with others at DS, to determine what discipline should be imposed. The Board further concluded that administrative inquiries were properly conducted by additional supervisors after evidence was gathered, grievant was consulted, and all appropriate factors were considered. The Board found that specific agency policy precluded grievant from being subjected to a second disciplinary process. Accordingly, the Board held that the Department was obligated to refund grievant’s pay and benefits lost during the suspension; his Official Performance Folder should have all references to the suspension proposal and decision removed; and that grievant’s OPF should be reviewed by reconstituted Selection Boards for each year (2017 and possibly 2018) in which the suspension letter was in the file.

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Pompeo swaggers into the bright light: “We lied, we cheated, we stole.” (Laughter.)

 

Via: state.gov: https://www.state.gov/secretary/remarks/2019/04/291144.htm

QUESTION: Hi, Mr. Secretary. My name is Ben Allen (ph), and I’m a civil engineering student. My question for you is: How do you balance condemnations with concessions in diplomacy with a controversial government such as Saudi Arabia? Thank you.

SECRETARY POMPEO: So I always begin with a deep understanding that no secretary of state gets through their first day without recognizing it’s a tough world out there. We don’t appreciate how glorious it is to be here in the United States of America on a consistent enough basis and with enough fervor. Maybe you do here at Texas A&M, but I think too many Americans don’t understand how blessed we are. These are – are many, many tough places out there.

28:35 mark: Having said that, not all tough places are the same. They each present a different set of challenges. I – it reminds me, you would know this as – it’s a bit of an aside. But in terms of how you think about problem sets, I – when I was a cadet, what’s the first – what’s the cadet motto at West Point? You will not lie, cheat, or steal, or tolerate those who do. I was the CIA director. We lied, we cheated, we stole. (Laughter.) It’s – it was like – we had entire training courses. (Applause.) It reminds you of the glory of the American experiment.

And so when you deal with these countries, you have to just recognize they’re not all the same. Some of these difficult, nasty places want to partner with the United States and just haven’t gotten to the right place yet, just haven’t been able to move their own institutions. And some of them may only be trying half as much as they ought to be trying, but they’re trying to move in the right direction. That presents a very different way of thinking about how the United States ought to address them. In those cases, we ought to assist them.

We should never shy away from calling them out. We have to be consistent. The State Department puts out every year a Human Rights Report. It’s just a compendium of bad acts around the world during the last 12 months. It’s way too long a book. But you should look at it. We call out friends, we call out adversaries, we call out everyone in between. But we have to find places where some of these countries that aren’t living up to our human rights standards – we address it, we work to fix it, we hold them accountable as best we can, and then we work to make sure those things don’t happen again.

There are another set of bad actors who’d just as soon see you all perish from this planet. That calls out for a different American response. And so sorting those through, figuring out exactly the right mix of American tools – diplomatic tools, economic tools, political tools, military tools, figuring out precisely what the right mix is the task that we engage in at the State Department, but we do it with all of our partners in the national security apparatus as well. So the leadership in the White House, the Department of Defense, the Intelligence Community, the Department of Treasury – we were talking about sanctions – all of those have an important piece of figuring out what exactly the right mix is.

And so just two things. One, we need to constantly evaluate if we have that right with respect to every one of those actors. Have we got the right balance? Are they still in the same place? Are they still making progress? Are they still serious about addressing the shortcomings that we identify? And then second, we have to be relentless, whether they are friends or adversaries, in making sure when a nation falls short that America will never shy away from calling them out for that behavior that didn’t rise to the level that we hope every nation can achieve.

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EEOC Damages Increased in Two @StateDept Cases

Via The Digest of Equal Employment Opportunity Law | Volume 1Fiscal Year 2019

Commission Increased Award of Compensatory Damages to $50,000. The Commission previously determined that Complainant was discriminated against when the Agency failed to grant him a medical clearance based on its “worldwide availability” requirement. Following a supplemental investigation, the Agency awarded Complainant $5,000 in non-pecuniary compensatory damages noting that Complainant did not provide any medical evidence to support his claim. The Commission increased the award to $50,000 on appeal. Complainant stated that he became despondent, depressed, and reclusive because of the Agency’s discriminatory actions. Complainant experienced sleeplessness, crying spells, weight loss, anger, and humiliation. Complainant’s husband and friends submitted statements supporting his claim. The Commission determined that an award of $50,000 in nonpecuniary compensatory damages was more appropriate given the nature, severity and duration of the distress Complainant experienced as a direct result of the discrimination. Harvey D. v. Dep’t of State, EEOC Appeal No. 0120171079 (Aug. 23, 2018).

Commission Increased Award of Non-Pecuniary Damages to $50,000. The Commission previously found that Complainant was subjected to sexual harassment by her supervisor and ordered the Agency, among other things, to investigate Complainant’s claim for damages. The Agency awarded Complainant $20,000 in non-pecuniary damages, and the Commission increased the award to $50,000 on appeal. The Commission noted that, more likely than not, the sexual harassment was not the only factor that caused Complainant’s depression and anxiety. Complainant’s brother was executed in the Middle East, and Complainant also noted that her co-workers questioned her reputation because of the way she dressed. Nevertheless, the Commission found that the sexual harassment was a significant reason for the ridicule Complainant experienced, as well as her depression, poor self-esteem, irritability, anger, difficulty sleeping, exhaustion, weight gain, and thoughts of suicide. The Commission noted that, seven months after the harassment ceased Complainant was able to form a romantic relationship, and she continued working at the Agency. Considering all of these factors, the Commission concluded that Complainant was entitled to an award of $50,000 in non-pecuniary damages. The Commission concurred with the Agency that Complainant failed to prove her claim for pecuniary damages. Blanca B. v. Dep’t of State, EEOC Appeal No. 0120171031 (Aug. 16, 2018).

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