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.
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So CA/OCS May Survive a Funding Crunch Only to Fall Apart at the Seams?

 

The largest public facing bureau of the State Department is the Bureau of Consular Affairs. For those who may need more familiarity, the major sub-divisions within this bureau are passport services (PPT), visa services (VO) and overseas citizen services (OCS). The identification and repatriation of remains of Americans overseas are handled by OCS. Evacuations of American citizens during natural disasters and civil unrest are also handled by OCS.  When somebody goes missing overseas, or becomes a victim of crime, these cases are handled by CA/OCS. In addition to the recent Afghanistan evacuations, the bureau also managed the massive COVID repatriation around the globe.
Consular operations are mostly fee-based; you pay for visa processing, passport issuance, notarial services and so on.  With the Trump travel bans and the subsequent COVID travel restrictions, passport and visa fee collection significantly cratered. At the same time, CA undertook two massive repatriation and evacuation.
In a congressional hearing in 2020, the State Department projected a $1.4 BILLION loss which was about 50 percent of Consular Affair’s revenue in the fiscal year ending September 30, 2020. It also projected comparable losses in FY2021 and FY2022. We’re sure the numbers are available internally, but we have yet to see publicly the cost of the global COVID repatriation and the Afghanistan evacuation.
During that same 2020 hearing, CA’s top official told Congress that services for American citizens “will not be put out of business.” We’re now wondering if the OCS directorate was saved from the funding crunch only to fall apart at the seams. Let’s consider a few things that we’ve learned:
STAFFING
–The Deputy Assistant Secretary of State (CA/OCS – DAS) recently sent a memo to staff acknowledging that the long hours and lack of sleep has taken an “unacceptable health toll”.
— The  Director of the Office of American Citizens Services and Crisis Management (CA/OCS/ACS) abruptly retired, reportedly one year into a two year tour and only months after making the Senior Foreign Service.
— The Managing Director of CA/OCS took a week off after acknowledging to the staff that the MD’s well-being had been put at risk, and indicated the need for some time off “to regroup.”
— Several of the staff who flew into Afghanistan are reportedly still struggling with what they saw.
— Staffers who made the thousands of phone calls to US citizens in Afghanistan have reportedly been traumatized by what they hear.
— During the inbound call phase early in the operation these staffers reportedly “suffered abuse at the hands of the US public, self-identified military callers who blamed the Task Force for Afghans left behind, and congressional staff who called in to yell at phone bank workers.”
A FOREVER TASK FORCE AFTER THE END OF A FOREVER WAR
— The Task Force continues – until when?
— “We are still staffing 24 hour task force support, which is just wearing people out.”
LEADERSHIP OBSESSES OVER NUMBERS AS EXHAUSTION BITES
— The Leadership is reportedly “totally focused” on the numbers. “All that matters in the Bureau is the number of people called, put on lists, and flown out.  Getting everyone out who wants out is a great goal, but from the top it is clearly just numbers.”
— “A/S and PDAS are only focused on this, basically never in SA17. Everyone is exhausted.”
— Somebody noted to us that “The idea that “around 100″ citizens remain in Afghanistan is absurd, as we never knew how many were there in the first place. And if it is such a low number who are posts from Mexico to Pakistan calling?”  Initially these posts were apparently calling the same folks who had reached out to the US over and over to try to determine who is ready to go. It was relayed to us that most of the times, State didn’t actually have a flight for them to get on or a solution to their problems (no passport, can’t leave family), leading to some testy exchanges.
— Department leadership allegedly “appears blind to the fact that the obsession with getting the number of American Citizens  in Afghanistan to zero has crippled OCS.”
For those who agree that the US should rightfully obsess in a zero AmCit number in Afghanistan, we should point out that the United States left thousands of U.S. citizens stranded in Yemen in 2015 and the show ponies in Congress did not care to interrupt their beauty sleep. (see Stranded in Yemen: Americans left to find own way out, but exactly how many more AmCits are left there?Yemen Non-Evacuation: Court Refuses to Second-Guess Discretionary Foreign Policy DecisionsFor U.S. Citizens in Yemen, a New Website and a New Hashtag Shows Up: #StuckInYemen).
REALITY CHECK
— “CA is ill prepared to continue on this path, and a second major crisis would be almost impossible for the Bureau to address.”
— “CA and OCS people need a break.”
— “COVID is still an issue around the world, regular OCS work doesn’t go away, so fewer people have to handle that and these are the same people that did the COVID repatriations.”
— “It’s not just OCS though, the SIV cases are still out there, and posts everywhere are short staffed, tired, and working under a variety of local restrictions”
— “CA needs what it always needs: money, staff, training, and a Department leadership that values more than a visa referral or a quote for the Secretary.”
Well, now you know.
How soon before we hear about the leadership tenets and taking care of people?

 

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#USAPavilion Officially Opens For Expo 2020 Dubai

 

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HAVANA Act of 2021 Passes Congress, Heads to President Biden’s Desk

 

We blogged about the Havana Act in August 2021 (see Helping American Victims Afflicted by Neurological Attacks Act of 2021 Awaits Passage in the House, You Can Help). On September 21, the House unanimously passed legislation in a 427-0 vote to compensate USG employees who experienced traumatic brain injuries while serving in Cuba, China and other locations, also known as the Havana Syndrome. The U.S. Senate passed the HAVANA Act in June. The bill now heads to the White House for President Biden’s signature.

US Embassy Conakry Issues Shelter in Place Alert, USG Condemns Military Seizure of Power in Guinea

 

 

On September 5, the US Embassy in Conakry issued a security alert warning U.S. citizens of “ongoing potential for disruption, demonstrations, gunfire”:

The events of September 5, 2021 continue to evolve in Guinea. U.S. citizens are reminded to continue to monitor local media, to remain at home or to shelter in place, to avoid demonstrations and large crowds, and to plan safety measures that do not rely on U.S. government assistance.

Meanwhile, Foggy Bottom condemned the military seizure of power in the country:

Violence and any extra-constitutional measures will only erode Guinea’s prospects for peace, stability, and prosperity. These actions could limit the ability of the United States and Guinea’s other international partners to support the country as it navigates a path toward national unity and a brighter future for the Guinean people.

We urge all parties to forego violence and any efforts not supported by the Constitution and stand by the rule of law. We reiterate our encouragement of a process of national dialogue to address concerns sustainably and transparently to enable a peaceful and democratic way forward for Guinea to realize its full potential.

Security Alert – U. S. Embassy Conakry, Guinea (5 September, 2021)
Senior FSO Steven Koutsis assumed office as Chargé d’Affaires a.i. at US Embassy Conakry in September 2020. Mr. Koutsis most recently served as CDA in Khartoum, Sudan from November 2016 to September 2019. Prior to that, Mr. Koutsis was Director of the Office of the Special Envoy for Sudan and South Sudan.
Audu Besmer, a career FSO since 1999 arrived as Deputy Chief of Mission at the U.S. Embassy in Conakry in August 2019. His prior overseas assignments include Management Officer in Togo, a detail to the Treasury Department as Deputy Financial Attaché in Japan, and postings at the U.S. Embassies in Zimbabwe and the Dominican Republic.

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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.

***

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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USAID’s Tresja Denysenko Dies Unexpectedly While Serving With DART in Haiti Earthquake Response

 

USAID Administrator Samantha Power released a statement on Tresja Denysenko’s unexpected passing while serving with the Disaster Assistance Response Team (DART) in Haiti. Excerpt below:

It is with great sadness that on behalf of the USAID family I relay the passing of Tresja Denysenko, a tireless disaster response expert with our Bureau for Humanitarian Assistance. Tresja passed away unexpectedly on August 19, 2021, while serving on USAID’s Disaster Assistance Response Team (DART) responding to the devastating earthquake in Haiti. I want to express my heartfelt condolences to Tresja’s family, friends, and colleagues.

Tresja first joined USAID in 2005, and during her career she responded to many humanitarian emergencies, including the 2010 Haiti earthquake, the West Africa Ebola outbreak, the Venezuela regional crisis, and the conflicts in South Sudan and the Tigray region of Ethiopia. In all of her postings, she played a critical role in providing aid to the world’s most deprived and marginalized people. In addition to her work on disaster responses, Tresja was instrumental in establishing and refining the USAID Bureau for Humanitarian Assistance’s processes for delivering aid into the hands of those most in need. Tresja was also an inspiring mentor, training staff across the Bureau on how to deliver aid quickly and appropriately to save lives in some of the world’s most complex and dire humanitarian crises. Tresja’s legacy will live on in USAID through the work of the many colleagues who learned from her and who now occupy a wide range of roles across the Agency.

Originally from Minnesota, Tresja is survived by her husband and daughter, as well as her mother and stepfather. She is remembered as a beloved wife, mother, daughter, and dear friend. Tresja’s kindness and heartfelt passion for providing humanitarian assistance and improving the lives of people in need touched many communities around the world and here at home.

US Embassy Kabul Evacuates 2,800 Locally Employed Staff and Families

 

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Snapshot: @StateDept Entities Involved in Lebanon Evacuation (2006)

 

General Mark Milley apparently told lawmakers on a briefing call that the Afghanistan evacuation is “This is probably going to end up as the second largest non-combatant evacuation operation ever conducted by the United States.” How close could this be to becoming the largest NEO?
One of the largest evacuations conducted by the State Department with DOD prior to the current one is the evacuation of US citizens from Lebanon in 2006. Nearly 15,000 American citizens were evacuated from Lebanon via Cyprus between July and August 2006.

 

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