Biliovschi Smith v. Blinken: EFM Alleges Discrimination Under Title VII #superiorqualificationsrate

 

Via Civil Action No. 1:18-cv-03065 (CJN)
For over two years, Mihaela Biliovschi Smith worked for the State Department as a Media Outreach Assistant out of the American embassy in Yaoundé, Cameroon. Compl. ¶ 6, ECF No. 1. A series of disputes among Ms. Smith, a coworker, and embassy management resulted in Ms. Smith filing this lawsuit, which alleges violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. Compl. ¶¶ 55–60. The State Department has moved to dismiss, or alternatively, for summary judgment. See generally Def.’s Mot. to Dismiss & for Summ. J. (“Mot.”), ECF No. 28. The Court denies the motion for reasons that follow.1
1 In addition to denying the State Department’s motion for summary judgment, this Court also denies the State Department’s alternative motion to dismiss. Tyson v. Brennan, 306 F. Supp. 3d 365, 369 (D.D.C. 2017); Brooks v. Kerry, 37 F. Supp. 3d 187, 199 (D.D.C. 2014). For clarity’s sake, this memorandum opinion will refer to the State Department’s motion as a motion for summary judgment.
4 If a job candidate qualifies for higher pay based on a “superior qualifications determination,” Joint Statement ¶ 16, then the person could receive a superior qualification rate of pay, which compensates the individual because the employer based on the individual’s experience “may reasonably expect a higher level of performance beyond the requirements of the job,” id. ¶ 35.
5 This Court concludes that embassy management’s comments about Ms. Smith’s Romanian ethnicity do not constitute direct evidence of discrimination, but rather may “be probative of discrimination” under the burden-shifting framework in place for claims reliant on indirect evidence of discrimination. Isse v. Am. Univ., 540 F. Supp. 2d 9, 30 (D.D.C. 2008); Brady v. Livingood, 456 F. Supp. 2d 1, 6 (D.D.C. 2006) (noting that “direct evidence does not include stray remarks in the workplace”). In addition, Ms. Smith’s contention that she received lower pay based in part on her national origin satisfies the requirement that a Title VII discrimination plaintiff show that she suffered an adverse employment action. See 42 U.S.C. § 2000e-2(a)(1) (making it unlawful to discriminate with respect to “compensation”); Russell v. Principi, 257 F.3d 815, 819 (D.C. Cir. 2001).

I. Background
An American citizen of Romanian national origin, Mihaela Biliovschi Smith accompanied her husband Derrin Ray Smith to Yaoundé, Cameroon in August 2014.2 See Joint Chronological.

Statement of Material Facts (“Joint Statement”), ECF No. 38 at ¶¶ 1–3. Mr. Smith ventured to Africa to work as a foreign service officer with the U.S. embassy. Id. ¶ 3. During their first year in Cameroon together, Mr. and Ms. Smith attended an embassy-hosted dinner where the deputy chief of the embassy, Greg Thome, allegedly told Ms. Smith at the dinner table that her “country right now is the United States of America” and that “at the State Department, we don’t work for the interests of the Romanians.” Id. ¶ 5. Thome, Ms. Smith also claims, later inquired into whether she “spoke Russian.” Id. ¶ 13. Ms. Smith perceived Thome’s comments related to her Romanian ethnicity as odd, discomforting, and concerning. Derrin Ray Smith Decl. (“Smith Decl.”), ECF No. 31-8 at 2. Yet neither Ms. Smith nor her husband apparently took action in response.

Early in 2015, Ms. Smith applied for a position with the embassy as a “Media Outreach Assistant.” See Joint Statement ¶¶ 6, 10.3 She got the job. Id. ¶ 14. The job offer stated that Ms. Smith would begin her employment with the embassy at an entry-level pay rate. Id. ¶ 15. Upon receipt of the offer, Ms. Smith requested that the State Department conduct a superior qualifications rate review to determine whether she qualified for higher pay. Id. ¶¶ 16, 20. 4 The assistant in the human resources department in charge of preparing Ms. Smith’s hiring documents thought that Ms. Smith might qualify for a higher rate based on her “expansive knowledge” and experiential background. Id. ¶ 38.

Yet a higher-level manager in the human resources department, Charles Morrill, made the decision not to submit Ms. Smith’s paperwork for a superior qualifications review, id. ¶ 44, and when he informed her of that decision, he referenced her Romanian perspective and Balkanized mindset. Id. ¶ 51. When asked in his deposition to clarify these comments, Morrill stated that he knew the “mindset” of Romanians based on his experience working with “Eastern Europeans.” Charles Morrill Dep. (“Morrill’s Dep.”), ECF No. 28-9 at 4–5. He added that people from that part of the world hold a world view that “people are out to get you.” Id. at 5. The decision not to submit the paperwork generated conflict between Ms. Smith and embassy management. Ms. Smith nonetheless accepted the offer of employment.
[…]
In December 2018, Ms. Smith filed this lawsuit against her employer for discrimination and for creating a retaliatory and a hostile work environment under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. Compl. ¶¶ 55–60. The State Department has moved to for summary judgment on all of Ms. Smith’s claims.
[…]
Because a reasonable juror could find, based on the present record, that Ms. Smith suffered discrimination on the basis of national origin and that she was subjected to a hostile work environment on the basis of her sex and her engagement in protected activity, it would be inappropriate to grant the pending Motion for Summary Judgment. The State Department’s Motion for Summary Judgment is therefore Denied. An Order will be entered contemporaneously with this Memorandum Opinion.

The Memorandum of Opinion signed by Judge Carl J. Nichols of the District Court of the District of Columbia is available via public records here.

 

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Snapshot: Staffing at US Embassy Moscow v. Russian Embassy USA

 

 

Blinken Talks the Talk on Unexplained Health Incidents, Where’s the Walk? #HavanaSyndrome

 

During the August 18 State Department Press Briefing, a reporter asked about the Unexplained Health Incidents  (UHI) also known as the Havana Syndrome that was reported at the US Mission in Germany. Below is the exchange:

QUESTION: Can you – one non-Afghan question, please? I – thank you. I’m seeing reports that there are some cases of Havana – so-called Havana Syndrome in Berlin, at the embassy in Berlin. Can you speak to that? Are you aware of it? What is the State Department doing to protect its staff?

MR PRICE: So, I am – I have seen these reports, of course. This is something that we vigorously investigate, the so-called anomalous health incidents or unexplained health incidents in coordination with our partners across the government. Any employees who have reported a possible unexplained health incident, they have received immediate and appropriate attention and care.

These health incidents I can tell you have been a top priority for Secretary Blinken. I think I mentioned this before, but he proactively requested two sets of briefings during the transition. This was one of them, because even before he was Secretary of State, he wanted to know precisely what we knew, what this department knew at the time, and what we were doing to respond to this.

He has set clear goals for what we call here the Health Incident Response Task Force to – number one, to strengthen the communication with our workforce, of course, to provide care for affected employees and their family members, and to do what we can to protect against these incidents working together with the interagency, and, of course, to find the cause of what has been afflicting these members of our team. He noted to the workforce – I guess it was a couple weeks ago now – that there is nothing that we take more seriously than the health of our workforce.

And that’s why there is a major effort underway in this department, there is a major effort underway across the interagency to determine the cause and to, of course, provide the level of care, the level of communication, the level of feedback that our employees need and deserve. This is a priority. Ambassador Spratlen, as you know, the – Secretary Blinken named her as the head of the task force. She works very closely with the Deputy Secretary for Management and Resources Brian McKeon on this. They are working very closely in turn with Secretary Blinken. We’ll continue to do that. We’ll continue to work with our interagency partners to ensure that our employees, both those who have been affected by this have what they need, and those who are serving around the world, that we’re doing everything we can to ensure their safety.

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NBC News subsequently reported that at least two U.S. diplomats will be medevaced from Vietnam due to UHI which occurred on the weekend ahead of Vice President Kamala Harris’ visit.
The State Department spox has previously mentioned on March 12, and again on July 19, that this is a top priority for Secretary Blinken and that the secretary has requested briefings regarding these incidents even during the transition.
One employee who was injured in these unexplained health incidents recently told this blog: “He has utterly failed in basic leadership 101 on this issue.”
The employee was referring to Secretary Blinken.
On August 2, a CNN headline blares “Havana Syndrome stokes fear and frustration among diplomats over response from State Department.

…frustration is rising among rank-and-file staffers and diplomats over what multiple officials say has been a tepid response by the department. Of particular concern is a lack of information from leadership, including what some say has been a hands-off approach from Secretary of State Tony Blinken who has yet to meet with any of the State Department victims despite saying he would prioritize the incidents.

On August 5, Secretary Blinken sent a memo to State Department employees saying in part “What I can tell you is that this is a top priority for me, the State Department, and leaders across the U.S. government.” CNN’s Natasha Bertrand tweeted that memo the same day.
Obviously, the Blinken memo to the troops was not a coincidence but a reaction to the CNN report three days earlier.
So the top leadership in Foggy Bottom is sensitive to media splashes, who knew? But managing perception can only go so far. How many more times can Secretary Blinken claim this as a “top priority” for him without ever meeting the victims of these incidents? Or addressing his employees directly in a town hall, for that matter? August 26 was the 6-month anniversary of his assumption as secretary of state; he’s no longer in the transition phase.
Folks might ask, but does Secretary Blinken really have to meet these people though? Or does he really need to meet anxious employees shipping out overseas where they and their loves ones could potentially be subjected to similar attacks? Why can’t Deputy Secretary Brian McKeon just talk to these folks? Mr. McKeon, after all, is the Deputy Secretary for Management and Resources.
Yes, Virginia. Secretary Blinken really do need to meet with his people and we’ll tell you why. Because Brian McKeon is not the Secretary of State. That’s why.
It is alleged also that the State Department is “withholding so much unclassified info” related to these attacks that often employees only hear things from the media; they aren’t hearing relevant information directly from State.
But .. but .. there’s Afghanistan, and Haiti, and Russia, and Ukraine, Eswatini, China …. on and on and on …. it never stops.
If Secretary Blinken is waiting for a break from foreign headaches and chaos before dealing with these serious concerns within the ranks, his staff could be waiting forever, y’all.
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