EEOC Case: Middle Eastern FSO Alleges Discrimination, Raises “Unconscious Bias” Over Non-Promotion

 

EEOC Appeal No. 2020000559
At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Foreign Service (“FS”) Officer, FS-04, (Political) at the U.S. Embassy in Ankara, Turkey.

On December 7, 2018, Complainant filed a formal EEO complaint alleging discrimination by the Agency on the bases of race (Middle Eastern), national origin (Iranian, naturalized U.S. Citizen), and religion (Muslim) when, on or about August 31, 2019, she learned that she was not promoted by the 2018 Foreign Service Selection Boards.
[…]

The record includes, but is not limited to, the following relevant facts:

Promotions for FSOs, such as Complainant, are determined by Selection Boards (also referred to as the Promotion Board or “Board”) comprised of volunteer reviewers from within the Agency. In 2018, it was established Agency practice for all reviewers to undergo two days of training on relevant software, and how to impartially evaluate an employee based on their awards and duty posts from the past five years, the employee’s electronic Official Personnel Files (“eOPF” or “file”), and their EER (review). The volunteers are instructed to recuse themselves if they feel they are unable to review a file objectively. During the 2018 training, the volunteers were briefed by the Agency’s Office of Civil Rights about diversity with a focus on “ensuring the Board applied the Department’s EEO principles in its deliberations and decisions.”
[..]

The promotion review was on a “class-wide basis,” so all FS-04 candidates within the same specialty were reviewed by the same Board. Thus, the Board reviewing Complainant and other FS-04s was responsible for reviewing more than 875 files within 10 weeks, or 34 to 40 employee
files per day. When asked to provide affidavits for the instant complaint, none of the panelists recognized Complainant’s name or specifically recalled the contents of her employee file.


Complainant maintains that she was qualified and deserving of a promotion based on her accomplishments, and submits copies of her EERs from 2011 to 2018, a Superior Honor Award
(2011), a Letter of Commendation (2012), two Meritorious Honor Awards (2016 and 2018) and the highest language score among her cohort of Turkish language students (2017) and service above grade in three out of four assignments. While Complainant concedes, “I do not have information from which I can assess whether my performance was superior to those selected,” Complainant asserts that her “track record in multiple positions senior my grade, my awards, and my EERs, I am on par with those promoted.”

Complainant contends that, at the time of her 2018 non-selection, “unconscious bias” was a known obstacle to achieving awards and promotions within the Agency’s selection process. She states that at least two affinity groups, Executive Women at State and Balancing Act, had been trying to raise the issue of unconscious bias with respect to the scoring process. The Union surveyed employees in 2017 and identified strong support for removing names from EERs (reviews). Regarding this survey, Complainant states that “individuals like me, with different ethnically identifiable names, almost unanimously found fault with the Agency’s practice of including names in the EERs.”
[..]

Significantly, Complainant argues that the Agency, in both investigating and deciding her case, disregarded her allegations of “unconscious bias,” instead applying a disparate treatment analysis to her allegations. It is clear from the record that Complainant was attempting to raise a disparate impact claim, as she repeatedly clarified in her affidavit that she did not believe the Panel intentionally discriminated against her, instead, describing herself as the victim of unconscious bias as a result of the Agency practice of promotion boards knowing the names of the candidates they were reviewing.

Complainant challenges the Agency’s policy of allowing reviewers for FS promotions to see the employees’ first and last names, arguing that a candidate’s name could trigger implicit bias by the reviewer. As evidence of bias against individuals of Middle Eastern dissent, Complainant cites FBI data revealing a 67% increase in hate-based incidents against Muslim Americans in 2015, the highest since the aftermath of September 11, 2001. She also cites the Muslim Public Affairs Council, which, based on media tracking, found an exponential increase in hate-based attacks. She recalls the “Muslim Ban,” where the President called first for a “total and complete shutdown of Muslims entering the United States,” later modified to “extreme vetting” of Muslim immigrants. Moreover, Complainant argues that even if all of the panelists did not realize her name was of Middle Eastern origin specifically, “it is impossible for someone not to know that I am from a specific minority group . . . and that I am likely from the Middle East with a high probability that I am Muslim.”
[…]

In the present case, as a result of the Agency’s investigation’s sole focus on disparate treatment, the record is not sufficiently developed to determine whether Complainant can establish even a prima facie case of disparate impact.3 We have presented some of the details of our prior analysis in Gwendolyn G. to provide Complainant and the Agency with guidance in determining the sort of evidence necessary to determine a disparate impact case of this sort. We are vacating the Agency’s final decision and remanding this matter to the Agency for further investigation relevant to the disparate impact claim.

Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we hereby VACATE the Agency’s Final Decision (with the exception of affirming the timeliness dismissal of promotion claims prior to 2018) and REMAND the matter for further processing in accordance with the following Order.

ORDER
1. Within one hundred and twenty (120) calendar days of the date this decision is issued, the Agency shall conduct a supplemental investigation addressing Complainant’s claim of discrimination under the disparate impact theory and issue an updated ROI to Complainant.
2. Among other things, the updated ROI shall contain the necessary statistical data to allow a decision maker to determine whether Complainant can establish a prima facie case of disparate impact analysis discussed above with respect to individuals with Middle Eastern names, as well as individuals with names that could be mistakenly identified as Middle Eastern. Evidence shall also be gathered with regard to the Agency’s justification for the challenged practice.
3. Within sixty (60) calendar days of the completion of the supplemental investigation, the Agency shall issue a new FAD to Complainant with appeal rights to this Commission. The FAD shall contain a thorough analysis of Complainant’s complaint under disparate impact theory.
The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled “Implementation of the Commission’s Decision.” The report shall include a copy of the new ROI and FAD with appeal rights, and it shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g).
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US Mission Germany: LE Staff Age Discrimination Cases Fail at the EEOC Over 45-Day Time Limit

Below are two three recent cases at the EEOC where former LE staff at US Mission Germany alleged unlawful employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA). Both complainants were already retired when the complaints were filed at the Commission. In both cases, the EEOC affirmed the State Department’s decision. In the first case, the complainant argues that the Commission should waive the 45-day time limit.  In the second case, the complainant’s case failed for failure to initiate EEO counseling within the 45-day time limit. In the third case, the complainant filed the case 15 years later, “well beyond the 45-day limitation period.”
EEOC Appeal No. 2021001196:
Complainant, a U.S. citizen, was hired by the Agency effective October 17, 2005, as a Secretary, Pay Plan 01, Grade 06 (PP-01-06). She was competitively promoted to Administrative Assistant Move Coordinator), PP-01-09 effective April 1, 2007, was reassigned to Administrative Assistant, PP-01-08 effective April 26, 2009, and retired on December 31, 2018. All these jobs were with the American Embassy Berlin in Berlin Germany, part of U.S. Mission Germany. Complainant worked as Locally Employed (LE) Staff, meaning staff who were legal permanent residents of Germany, including U.S. and non-U.S. citizens.

On August 24, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against her based on age because throughout her employment she was ineligible, due to being hired after her 45th birthday, to participate in the Mission Germany Retirement Benefit Plan/Defined Benefit Plan (DBP) for LE Staff.
[…]
The Agency dismissed the EEO complaint because Complainant did not initiate EEO counseling within the 45-day time limit of when she reasonably should have suspected discrimination. It found as follows. Complainant should have reasonably suspected discrimination upon her retirement (December 31, 2018) when she learned that she did not qualify for retirement benefits, and again by February 26, 2020, when post leadership issued cable 20 STATE 21066 denying Complainant and similarly situated LE retirees retirement benefits. The Agency found that Complainant had constructive notice of the 45-day time limit because of numerous posted notices on the Agency’s internet site, its intranet site dedicated to employment information, and on Embassy Berlin’s intranet site. The Agency also dismissed the complaint for failure to state a claim for various reasons.

The instant appeal followed. On appeal, Complainant argues that when she was hired American Embassy Berlin was in the process of building a new embassy. She writes she was not located in one of official Embassy buildings and because her location did not have access to the Agency and Mission Germany intranet websites she did not have the means to learn of the 45 day time limit. Complainant writes that the above occurred when she worked for Overseas Building Operations (OBO) of the Embassy.

[…]
The record reflects Complainant stopped working in OBO when she was promoted on April 1, 2007, and she does not argue she was unaware of the 45-day time limit thereafter. Rather, Complainant argues that the Commission should waive the 45-day time limit because the Agency deliberately hindered those injured from becoming aware of the age discrimination and because of the gravity of its offense. Complainant argues that she only formed a reasonable suspicion of age discrimination after extensive consultation with experts and similarly situated LE Staff and retirees, and hence her EEO contact was timely. She also argues that her complaint states a claim.
[…]
Complainant argues that after she retired on December 31, 2018, she helped establish a Pension Sub-Committee to meet with management to discuss DBP age discrimination (meaning allow those excluded from DBP due to their age to retroactively join DBP), but on February 26, 2019, via cable, management declined to grandfather them into DBP. Based on this information, we  conclude that Complainant had a reasonable suspicion of discrimination years before she initiated EEO counseling on July 21, 2020. Accordingly, the FAD is AFFIRMED
EEOC Appeal No. 2021001243
Complainant, a U.S. citizen, was hired by the Agency starting on February 24, 1997, to a limited term position as a Commercial Representative at the American Consulate General, Office of the Foreign Commercial Service, in Dusseldorf, Germany. The term appointment allowed for the option of subsequent annual extensions. It appears the Agency annually renewed Complainant’s term employment until he retired on October 31, 2017. In July 2009, Complainant was reassigned from Dusseldorf to Munich, Germany, where he remained until his retirement. Throughout his career with the Agency’s U.S. Mission Germany, Complainant worked as Locally Employed (LE) Staff, meaning staff who were legal permanent residents of Germany.
On July 23, 2020, Complainant initiated EEO counseling and later filed a formal equal employment opportunity (EEO) complaint dated August 26, 2020, alleging the Agency discriminated against him based on his age because he was ineligible, due to being hired after his 45th birthday, to participate in Part A of the Mission Germany Retirement Benefit Plan/Defined Benefit Plan (DBP) for LE Staff.
[..]
The Agency dismissed Complainant’s EEO complaint because he did not initiate EEO counseling within the 45-day time limit of when he reasonably should have suspected discrimination. The Agency found that, at the latest, Complainant should have reasonably
suspected discrimination when he retired on October 31, 2017, because he did not qualify for retirement benefits at that point. It further found that assuming Complainant did not reasonably suspect discrimination upon his retirement, he should have reasonably suspected discrimination when, on February 26, 2020, via cable (identified as 20 STATE 21066), Agency leadership denied the request by similarly situated former LE Staff, also hired after age 45, for retirement  benefits. The Agency found that Complainant knew or had constructive notice of the 45-day time limit because of posted notices on the Agency’s intranet and internet sites dedicated to employment information. The complaint file contains screen shots of the referenced notices.
[…]

The doctrine of laches is an equitable remedy under which an individual’s failure to pursue diligently his course of action could bar his claim. We find laches applies here. Complainant delayed almost three years after he retired to initiate EEO counseling. While the record may not show exactly when Complainant was notified of the time limit to initiate EEO counseling, we conclude that the record sufficiently supports a finding that he did not act with due diligence in starting his EEO case, justifying the application of the doctrine of laches. Accordingly, the FAD dismissing the complaint for untimely EEO counseling is AFFIRMED.
EEOC Appeal No. 2021001278 :
During the relevant period, Complainant worked as a Computer Management Specialist at the Agency’s US Embassy Berlin in Berlin, Germany.

On July 21, 2020, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful.

On August 27, 2020, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination based on age when he was informed that he was not eligible for benefits under Mission Germany’s Retirement Benefit Plan, beginning the date of his employment as a locally employed staff member on October 17, 2015.


In its October 13, 2020 final decision, the Agency dismissed the formal complaint claim for untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2).
Specifically, the Agency determined that Complainant initiated EEO Counselor contact on July 21, 2020, which the Agency found was more than forty-five days after the alleged discriminatory event occurred. In addition, the Agency argued that Complainant knew or should have known that retirement benefits were not part of his employment benefit package.
In support of its assertions, the Agency included a copy of Complainant’s offer letter and employment history that he signed on September 9, 2005, acknowledging receipt of the Foreign Service National (FSN) Handbook that explains retirement benefit eligibility.
[…]
The Agency noted further that the instant complaint raises issues of retirement benefits for Locally Employed Staff (LE) which arise under the Foreign Service Act (FSA). Complainant signed the LCP when he began his employment with Mission Germany and properly grieved the LCP provisions. The Agency found that, as a result, the Commission lacks jurisdiction to decide the allegations Complainant raised in his complaint.

Finally, the Agency found that the subject claim is a collateral attack on the Agency grievance proceeding. The Agency stated that Complainant should have raised his allegations through the Agency grievance proceeding, and not through the EEO complaint process.
[..]

Here, the Agency properly dismissed the formal complaint on the grounds of untimely EEO counselor contact. Complainant was notified in his employment contract in 2005 that he was not eligible for retirement benefits. However, Complainant did not initiate contact with an EEO

Counselor until July 21, 2020, 15 years later and well beyond the 45-day limitation period. We note that in his complaint, Complainant states he did not reasonably suspect discrimination until February 26, 2020, when Agency leadership issued a decision entitled 20 STATE 21066 denying retirement benefits to Complainant and other similarly situated retirees. Even counting from that date, Complainant’s July 21, 2020 initial EEO counselor contact was untimely made.
[..]
The Agency’s final decision dismissing the formal complaint for the reasons stated herein is AFFIRMED.
Not sure what “Agency grievance proceeding” the State Department is referencing here. Is there a grievance system for LE staff overseas, besides getting a hearing from the COM? The Foreign Service Grievance System (FSGB) applies to Foreign Service employees only.
Note: Depending on the browser you’re using, the FSGB cases may not be available to read online; each record may need to be downloaded to be accessible. With Firefox browser, however, you may select “open with Firefox” if you want to read the case file, or save the file to your computer. Please use the search button here to locate specific FSGB records.
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USDOJ: FL Executives Plead Guilty to Large-Scale Visa Fraud Employment Scheme

 

Via USDOJ:

Two Florida business executives pleaded guilty today in the Southern District of Georgia to charges related to their roles in a scheme to recruit and hire foreign nationals who were not authorized to work in the United States to fill temporary housekeeping and food service positions and commit various other criminal immigration offenses for profit.

According to court documents, Educational World Inc. (Ed World), a visa processing company based in North Point; and Larisa Khariton, 73, and Jon Clark, 71, also of North Point, were indicted by a federal grand jury in Georgia on April 8. The 36-count indictment also contained allegations against Regal Hospitality Solutions LLC (RHS), a Louisiana-based staffing company, and seven current and former RHS employees. Each defendant was charged with one count of conspiracy to defraud and commit offenses against the United States, including encouraging and inducing an alien to reside in the United States, as well as alien harboring, alien transporting, and visa fraud. In addition, the RHS defendants were charged with wire-fraud related offenses.

Khariton and Clark pleaded guilty today to conspiracy to defraud and commit offenses against the United States.

According to the indictment and other court documents, the individual defendants enriched themselves by participating in a scheme to recruit and hire noncitizen laborers without authorization to work for RHS. RHS provided hospitality-related businesses with laborers to work in housekeeping, retail, and food service positions, using noncitizens who were unauthorized to work in the United States to fill the positions. In some cases, the RHS defendants arranged for and provided housing and transportation to the workers.

The defendants and other co-conspirators also encouraged and induced noncitizen laborers on expiring and expired J-1 exchange visitor visas to obtain B-2 tourist visas and to work in the United States for RHS, knowing that employing such laborers on B-2 visas was illegal. According to admissions made in connection with their guilty pleas, Khariton and Clark prepared and submitted applications for B-2 visas on behalf of the workers after charging noncitizen laborers approximately $650 per application. The application contained false and misleading statements indicating the noncitizens intended to obtain the B-2 visa for the purpose of engaging in tourism. In fact, Khariton and Clark knew that those noncitizens were already present in and intended to stay in the United States for employment, not tourism.

The indictment also alleges that Khariton and Clark submitted petitions for H-2B temporary work visas on behalf of defendant RHS that contained false and misleading information about the location where noncitizen laborers allegedly were to be employed. In connection with their guilty pleas, Khariton and Clark admitted that they engaged in deceitful and dishonest conduct to impede and obstruct the functioning of, among other things, the H-2 non-immigrant visa program. Khariton and Clark also admitted that they were paid a commission by RHS for noncitizens Ed World recruited to work for RHS, including those who were not authorized to work for RHS in the United States.

Khariton and Clark will be sentenced at a later date. Khariton and Clark face a statutory maximum penalty of five years in prison; A federal district court judge will determine the sentences after considering the U.S. Sentencing Guidelines and other statutory factors. Charges remain pending against defendant RHS and the individual RHS defendants who are considered innocent unless and until found guilty

The U.S. Department of State Office of Inspector General is investigating the case with assistance provided by U.S. Immigration and Customs Enforcement’s Homeland Security Investigations and U.S. Citizenship and Immigration Services.

Trial Attorneys Frank Rangoussis and John-Alex Romano of the Criminal Division’s Human Rights and Special Prosecutions Section and Assistant U.S. Attorney Steven Lee of the Southern District of Georgia are prosecuting the case.

 

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SFRC Senators Express “Concern” to @SecBlinken For @StateDept’s Handling of #HavanaSyndrome

 

In a letter to Secretary Blinken, Senators from the Senate Foreign Relations Committee writes We believe this threat deserves the highest level of attention from the State Department, and remain concerned that the State Department is not treating this crisis with the requisite senior-level attention that it requires. “
Also that the Senators continue to hear concerns that the Department is not sufficiently communicating with or responding to diplomats  who have been injured from these attacks. We are also concerned that the Department is insufficiently engaged in interagency efforts to find the cause of these attacks, identify those responsible, and develop a plan to hold them accountable. “
The Senators urged a replacement for Ambassador Spratlen imediately:
“We urge you to immediately announce a successor to Ambassador Spratlen to lead the Department’s Health Incident Response Task Force. Critically, this post must be a senior-level official that reports directly to you. It is incumbent that this individual has the experience to engage effectively with affected individuals and with the interagency. As you know, pending bipartisan legislation in the Senate would require the Secretary to designate an agency coordinator for AHIs who reports directly to you. We ask that you take this step now to demonstrate that the State Department does take this matter seriously, and is coordinating an appropriate agency-level response.”
Finally, the senators write, We wish to support the State Department and U.S. personnel through every means possible, and to support the Department in effectively addressing this national security threat. We look forward to receiving your response, and to your heightened engagement on this issue.”
The letter is available to read here.
The State Department has a response from the podium but we’ll save you the anguish of having to read the same thing all over again.
Just yesterday, we got another email in our inbox that says “Those DPB comments are utter bullshit.”
The spox did say that “… we want to make sure that those who have come forward are getting the care that they need. And I can give you quite a bit in terms of what our Bureau of Medical Services has done, including since January of this year, to ensure that those who come forward are getting that care.”
But …. but… how are they getting the care they need?
If folks can’t even get an email response from MED except for a form email?
At least there’s a form email, right?
But that feeling when you’re worried you may have a brain injury and you get a form email — apparently, that does not generate a warm feeling of WE’RE HERE FOR YOU, WE CARE.
The senators are right to remain concerned. Foggy Bottom typically responds to a few external pressures — the courts, the press, and yes, attentiveness from the Congress.

 

Related post:

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@StateDept Announces Return of Amb. Kenneth Merten as @USEmbassyHaiti Chargé d’Affaires

 

On September 23, following Ambassador Foote’s resignation as Special Envoy for Haiti, State/D Sherman did a damage control interview. When asked who will replace Daniel Foote, she responded:

“I don’t know that we need a replacement.  In part we had named a special envoy after the assassination of the president of Haiti in the aftermath of the horrible storms and earthquakes and all of the other plights that the Haitian people have had to face – the ongoing confrontation of poverty.  But we have an excellent ambassador in Haiti, Michele Sison, who is a nominee for a future post here in the United States.  We have tremendous faith in her and in her leadership.”

So less than a month after that interview, Ambassador Sison has apparently left Haiti.  Secretary Blinken has also announced the former Ambassador to Haiti Kenneth Merten as Chargé d’Affaires at US Embassy Port-au-Prince:

MR PRICE: I am happy to reiterate what the Secretary said. We are grateful that Ken Merten, an experienced department hand, will be going to serve in Port-au-Prince as our chargé d’affaires. As you know, Ambassador Sison is – has been nominated for an important post here. She has returned to the United States. And we’re grateful that Ken Merten has accepted the ask that he go serve in this important role.

QUESTION: So does that mean that she’s, like, left?

MR PRICE: That’s right. That’s right.

QUESTION: So she’s back here?

MR PRICE: That’s correct.

Hookay. So who’s going to assume post as the Bureau of Global Talent Management where Ambassador Merten has been posted as “Senior Bureau Official”? His state.gov bio says he was appointed Principal Deputy Assistant Secretary in the Bureau of Global Talent Management in January 2021. He became Senior Bureau Official after DGHR Carol Perez was elevated as Acting M.

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