MSPB: Issues of performance and misconduct may overlap #precedentialdecision

 

This is a Precedential Court Decision for readers tracking precedence and types of cases.
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2021-1686
MSPB Docket Number: DE-0752-19-0297-I-2
Issuance Date: October 29, 2021
Adverse Actions; Performance and Misconduct; Harmful Error; Penalty/Frequently Repeated Offenses

The petitioner was a Passport Specialist for the agency, who in 2016 served a 3-day suspension for making inappropriate comments at work, and in 2018 served a 5-day suspension for failure to follow instructions and failure to protect personally identifiable information. Nevertheless, the petitioner received a fully successful performance rating for calendar year 2018.

On May 9, 2019, the agency removed the petitioner based on four charges:

(1) failure to follow instructions (eleven specifications), (2) failure to protect personally identifiable information (one specification), (3) failure to follow policy (five specifications), and (4) improper personal conduct (one specification). Some of this conduct occurred during the 2018 rating period.

The petitioner filed a Board appeal, and the administrative judge issued an initial decision affirming his removal. The administrative judge credited the agency’s distinction between issues of performance and misconduct, the former involving employees who “can’t do” and the latter involving employees who “won’t do.” Finding that the charges “presented an issue of misconduct more than performance,” the administrative judge declined to consider the 2018 performance evaluation as a rebuttal to the charges. He found that the agency proved its charges and established nexus and that the removal penalty was reasonable under the circumstances. The initial decision became final, and the petitioner sought judicial review.

Holding: Issues of performance and misconduct may overlap. The existence of a fully successful performance evaluation does not necessarily bar discipline for matters covered by that evaluation, but it still must be considered in determining whether the employee committed the offenses charged and the reasonableness of the penalty imposed.

1. The court explained that performance and conduct issues “may overlap.” In this case, the petitioner’s performance plan required that he follow instructions, and some of the specifications under the failure to follow instructions charge occurred during the period covered by the 2018 performance evaluation. Therefore, the administrative judge should have considered that evaluation in assessing that charge.

2. Nevertheless, the administrative judge’s failure to consider the 2018 performance evaluation did not constitute reversable error because the petitioner failed to show that it likely affected the outcome of the Board’s decision. The petitioner did not dispute that any of the events underlying the charges occurred, and five of the eleven specifications of failure to follow instructions occurred outside the 2018 performance year.

3. Even assuming that the administrative judge erred in failing to consider the 2018 performance evaluation in assessing the penalty, the petitioner did not show harmful error. First, the deciding official considered the evaluation in reaching his penalty determination, in the context of his thorough Douglas factor analysis. Second, even if the evaluation suggested that the 2018 specifications of failure to follow instructions were not serious in and of themselves, their seriousness was magnified in light of the petitioner’s prior discipline for similar infractions and his continued failure to follow instructions after the 2018 appraisal period ended.

Read in full here.

 

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@USAGM: Hostile Work Environment and Sex-Based Discrimination Found

 

Via EEOC Appeal Nos. 2019005498 & 2020003512
Hostile Work Environment and Sex-Based Discrimination Found.
Both Complainants worked as International Broadcasters for the Agency’s International Broadcasting Bureau, Voice of America (VOA).  Complainants filed separate EEO complaints alleging, among other things, that the Agency subjected them to a hostile work environment and discrimination based on sex, including denying them promotions, and modifying their television anchor duties.  At the conclusion of the investigations for both complaints, the Agency issued two separate decisions which both concluded that Complainants failed to prove their claims.  The Commission consolidated the matters on appeal, given that the underlying facts were the same in both complaints.  The Commission determined that Complainants both established a prima facie case of discrimination based on sex because they were replaced by male anchors, and all the recipients of the promotion were males.
The Commission then found that the Agency failed to meet its burden to articulate legitimate, nondiscriminatory reasons for its decisions.  Several responsible management officials failed to provide detailed and supported statements regarding the removal of anchor duties and the denial of promotions.  For example, one of the responsible management officials repeatedly provided vague statements that were often not supported by the record, or provided statements that were refuted and/or contradicted by other management officials.  Moreover, when given several opportunities to clarify his statements by the EEO Investigator, the official failed to substantively respond.
The Commission stated that, even if it determined that the Agency’s explanation was sufficient to meet its burden, Complainants still established, by a preponderance of the evidence, that the Agency’s explanations were pretextual.  The Agency was ordered, among other things, to retroactively promote Complainants with appropriate back pay and benefits, reinstate pertinent television and/or radio duties, investigate Complainants’ claims for compensatory damages, and provide training to the responsible management officials.  Madlyn F. & Lashawn C. v. U.S. Agency for Global Media, EEOC Appeal Nos. 2019005498 & 2020003512 (Feb. 9, 2021).

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Related posts:

FSGB: Extra/Marital Drama With Three Women, Two Pregnancies, and a Reduced 12-Day Suspension

 

Via ROP/FSGB 2020-036/September 21, 2021:

Held – The Department of State (“Department”) met its burden of demonstrating by a preponderance of the evidence that grievant committed the misconduct with which he was charged; that the discipline proposal was timely and without procedural defect; and that the proposed penalty was reasonable and proportionate to the misconduct.

Case Summary – Grievant was serving as a Diplomatic Security (“DS”) Special Agent (“SA”) at an overseas post with his then-wife. He was engaged in extramarital affairs with two women employed at the embassy (both of whom became pregnant), failed to report these relationships, failed to report out of country travel with one of the two women, and threatened and intimidated the other woman, prompting two investigations and his voluntary curtailment from post. Two years later, while participating in a meeting concerning the medical evacuation (“medevac”) of his new wife, grievant was accused of bullying and intimidating behavior toward personnel from the Bureau of Medical Services (“MED”), prompting a third investigation. On December 8, 2017, the Department proposed a 30-day suspension without pay, on five charges with 22 specifications. On January 23, 2019, the Department sustained the proposed 30-day suspension. Grievant filed a grievance, challenging the validity of the charges and the severity of the penalty. In the agency-level grievance decision, the Department sustained four charges with 13 specifications and reduced the suspension to 12 days.

Grievant alleged that much of the conduct reflected misunderstandings. He stated that his first marriage was failing when he arrived at post and he eventually married, and remains married to, one of the two women with whom he had affairs. He contended that the investigations into his alleged misconduct were marred by the bias and unprofessional conduct of post’s Regional Security Office as well as being unduly delayed, causing him personal and professional harm. He argued that the alleged misconduct at the MED meeting resulted from mistreatment of his family by MED and should be dismissed. Grievant also alleged that the discipline was untimely, coming almost six years after the first alleged act of misconduct until the Department’s agency-level decision, an unreasonable period of time that impacted his ability to grieve a flawed process and manage his career. Grievant also argued that the Department did not meet its burden of proving the charges, appropriately weigh mitigating factors, or offer timely or proportionate discipline. Grievant argued that the charges should be dropped, or the penalty substantially reduced.

The Department responded that the complexity of the case and number of incidents leading to successive investigations, justified the time necessary to propose discipline. The agency also rebutted allegations that the discipline process was procedurally flawed, asserting that it properly assessed the charges and grievant’s misconduct, considered all mitigating factors, and levied a penalty that was both fair and proportionate.

The Foreign Service Grievance Board (“Board”) found that the Department met its burden of proving all charges and specifications. The Board found no procedural errors and concluded that the charges were not stale and the delay not prejudicial. The Board upheld the Department’s penalty determination process, including an assessment of all mitigating factors and review of appropriate comparator cases. The grievance was denied in full.

According to the ROP, the grievant was advised on January 25, 2017, “This case is still ongoing pending additional information.”8 Notwithstanding this notice, in February 2017, grievant was promoted to FS-03, still as an ARSO, retroactive to November 2016.9″
The small prints:
1 Although grievant was once tenured as a DS SA and promoted to FS-03 in that capacity, he subsequently changed careers to FSO generalist at a reduced grade of FS-04 and he remains untenured in that capacity.
9 The Department reported that grievant’s name was “temporarily removed from the rank order list of employees recommended for promotion by his 2016 FS Selection Board pending a standard vetting check …. [D]ue to his then-pending discipline cases, [he] should have been continually reported [as ineligible for promotion] in the ensuing vetting checks …. [I]t appears that [grievant’s] name was not properly reported [in early 2017] … resulting in the erroneous reinstatement of his name to the promotion list.” See Agency Amended Response to Board Request for Information, at 3-4.
ROPs available to read via FSGB.
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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FSGB: 5-Day Suspension For Inappropriate Comments and Unprofessional Conduct “Reasonable”

 

Excerpt from ROP/FSGB Case No. 2020061-September 3, 2021
ROPs available to read via FSGB.gov:
Held – Grievant failed to meet his burden of proving by a preponderance of the evidence that a five-day suspension for two charges (Inappropriate Comments and Unprofessional Conduct) with a total of 22 specifications was disproportionate disciplinary action and was untimely. The Board, finding 20 of 22 specifications against grievant justified, found that the proposed disciplinary action was reasonable, and denied grievant’s appeal.

Summary – Grievant served as the FP-02 Facility Manager at a post abroad from summer 2014 through summer 2017. According to a Report of Investigation (ROI) from the Department of State’s Office of Civil Rights (S/OCR), grievant allegedly harassed female employees at post by making inappropriate comments and displaying overly aggressive behavior towards them. Based on the ROI, the Bureau of Global Talent Management, Office of Employee Relations (GTM/ER) proposed a five-day suspension for grievant that the agency’s Deciding Official sustained. After grievant’s agency-level grievance challenging the five-day suspension was denied, he then appealed to the Foreign Service Grievance Board (FSGB, Board).

Grievant contested most of the specifications in both charges and contended that his (then undiagnosed) medical conditions were not taken into consideration in the agency’s assessment of his grievance. He also maintained that the disciplinary action was disproportionate to the alleged offense, the Douglas Factors were not appropriately applied, the comparator cases were misinterpreted, and the discipline was untimely.

The Board found that grievant did not prove that the Department failed to assign due weight to his previously undiagnosed medical conditions or misapplied the Douglas Factors when it decided the disciplinary action. The Board also found the proposal to discipline the grievant timely, as it was proposed seven months after GTM/ER received the S/OCR investigation results. The Board dismissed two specifications of Inappropriate Comments and sustained 20 specifications in the two charges against grievant. In view of the far greater number of specifications in the two charges against grievant when compared to the number of specifications in the charges against the employees in comparator cases, the Board found the five-day suspension well within the zone of reasonableness. The Board denied the grievance, finding that a reduction in penalty was not justified in view of the inordinate number of sustained specifications.
II. BACKGROUND
REDACTED (grievant) was serving as the FP-02 Facility Manager at the U.S. Embassy REDACTED  (Embassy) from summer 2014 through summer 2017. His responsibilities included maintenance, supervision of construction, and renovation of projects at the Embassy and six constituent consulates in the host country.
Grievant directly supervised four employees and had oversight for nearly two dozen skilled tradesmen, custodians,and gardeners. He managed an annual budget of over $4 million and was responsible for over $290 million in U.S. Government assets. Grievant stated that he lost annual leave due to a “crushing” workload that placed his section under constant stress not only to comply with regulatory mandates, but also to manage end-of-year funds. He attested that from years 2015 to 2016 he gained 45 pounds and suffered from insomnia, and then during consultation and training leave in July 2017, at a visit to his personal physician, he initially was diagnosed with autoimmune disease. Follow-up appointments in August 2017 revealed a diagnosis of type 1.5 diabetes, high blood pressure, and cholesterol issues.
Grievant attributed his behavior in the office (irritability, mood swings) and his medical conditions to work-related stress and stated that he has had no other incidents of unprofessional conduct with colleagues since treatment of his medical conditions.
The Department’s Office of Civil Rights (S/OCR) received in 2017 reports of grievant’s alleged sexual harassment, consisting of inappropriate comments and confrontational behavior directed at female colleagues. Consequently, S/OCR initiated an investigation. The Bureau of Global Talent Management,2 Office of Employee Relations (GTM/ER) received S/OCR’s Report of Investigation (ROI) on July 5, 2017, which included complaints about grievant’s alleged harassment of five female staff members in the form of loud bullying, demeaning comments, invasion of their personal space, and complaints about them to third parties. Reportedly, grievant was prone to storming out of meetings when colleagues’ views were not aligned with his own.
Charge l: Inappropriate Comments

3 FAM 4314 Grounds for Disciplinary Action (in relevant part)
(10) Any misconduct that does not promote the efficiency of the Service during or outside of established work hours.

Specification 1: Within the first six months of arriving at post in August 2014, you  came to the FMC
3 Office, and loudly shouted at the employees, “Where’s so and so,” and “Who’s working here,” in an angry and intimidating manner.

Specification 2: In a meeting in or about December 2014, you called her supervisor, , “a bully,” “a scumbag” and “scum of the earth.”


Specification 3: In a meeting in or about December 2014, you called FMO “incompetent” and “a bully.”


Specification 4: In April or May 2016, you advised , “Don’t go to an EEO Counselor if you have a problem.”


Specification 5: You stated within earshot that “Someone is poisoning the atmosphere here,” which she and at least one other witness believed referred to her.

Specification 6: When asked you a question about the condition of a ceiling, you shouted at her, “OH! I can’t talk about this now!! GET OUT of my office.”

Specification 7: In May 2016, you directed to “shut up and sit down” during a project meeting.


Specification 8: In April or May 2016, in front of colleagues at a section meeting, you commented “You have not shown me your skills.”


Specification 9: On more than one occasion, you disparaged the skills of architects and interior designers , even though you were aware that her background is in those fields.


Specification 10: On or about August 10, 2016, you belittled in a meeting with the DCM Deputy Chief of Mission [DCM] by stating that she was only a project manager by title and her title didn’t mean anything.


Specification 11: In a meeting in your office on or about August 12, 2016, you became red in the face and shouted at and FCS employee that you “could not handle the conversation” after they remarked that the ceiling was not in an acceptable state.

Specification 12: On or about June 17, 2017, you commented that glasses were “glasses feminists wear,” implying that you did not like them.


Specification 13: In a March or April 2016 section meeting, you stated to , in front of colleagues, “What did you do to your hair? You look like [expletive]! Your hair really looks like [expletive]!”


Specification 14: In October 2016, you asked who she voted for in the U.S. election. When she would not answer the question, you stated, “Well if you voted for Hillary, you have no morals or ethics.”


Specification 15: In mid-February 2017, you made a comment that after the election, “the pendulum is moving back” and that feelings are not going to be validated in the workplace anymore.


Specification 16: On or about January 24, 2017, throughout a conference call with [the Consul General (CG)], you muted the call to tell how much you hate [the CG] and that he is a “piece of [expletive].”

Specification 17: During a large meeting with management staff with then-Office Director , you stated, “Marriage is a good thing for you. You look so much nicer.”


Specification 18: In March or April 2016, you made an inappropriate comment to [B], whose husband was recovering from a medical issue, pointing at her aggressively and shouting, “You’re not taking care of your family.”

Charge 2: Unprofessional Conduct

Specification 1-4

ii. Alternative Solutions

The Department rejects grievant’s assertion that he has no need for disciplinary action. It points to the multiple times he was counseled on his behavior and notes that he did not modify his behavior even after he was advised to change how he interacted with people. The agency also refers to grievant’s 2017 Employee Evaluation Report (EER) that highlights his interpersonal skills in dealing with staff as an area for improvement (AFI). Therefore, the Department concluded that a lesser penalty such as a letter of reprimand would not likely have a deterrent effect on grievant.

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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The Conflicted Civil Servant: Should I Stay or Should I go?

 

Via War on the Rocks:
“Is our primary duty to the elected government of the day, even when it may be breaking the law or willfully deceiving the public? Or is our duty to some broader notion of the “public good”? If the latter, how is that to be defined, and by whom? If we stay silent in the face of wrongdoing, do we become complicit ourselves? But if we speak out, are we breaking our pledge of impartial service to the government of the day and undermining the foundation of trust between politicians and officials? If we resign, do we let down our colleagues and institutions? Do we merely allow others with fewer scruples to fill our shoes? But if we stay on, are we knowingly violating our duty to provide ethical public service to our fellow citizens?”
[…]
To get a better sense of how the U.S. system works in practice, I spoke first to Eric Rubin, a career diplomat since 1985 at the State Department, a former U.S. ambassador to Bulgaria, and currently president of the American Foreign Service Association. He is crystal clear that “you cannot speak publicly against government policy. If you want to do that, you must resign. It’s anti-democratic. It is inappropriate to believe you know better than the people’s elected representatives.”
Rubin also believes that resignations rarely have any impact on policy. “You might be a ‘One Day Wonder’ — generating a bit of a splash in the news for a few days, perhaps be invited to write an op-ed, or speak at a think tank, but that’s it.” He believes that people frequently overestimate the consequences of their resignations. “I have had people tell me they want to influence policy or stop something happening, but my view is that you can’t — you can’t fix foreign policy.” He cites the case of Iraq, where people who resigned in protest over the decision to invade “had no impact on the rush to war.”18
Read the whole thing:

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Diplomatic Security Gets Career DSS Special Agent Carlos F. Matus as New DS/PDAS and DSS Director

 

Last month, the State Department named career DSS agent Carlos F. Matus as PDAS for Diplomatic Security  (DS) and director of the Diplomatic Security Service (DSS). Below is his official bio:

Carlos F. Matus, a career Diplomatic Security Service (DSS) special agent and DSS senior official, was named principal deputy assistant secretary (PDAS) of the Bureau of Diplomatic Security and director of the Diplomatic Security Service (DSS), U.S. Department of State, on September 13, 2021. He previously served as acting DSS director.

As PDAS and DSS director, Matus is responsible for the operations of the most widely represented law enforcement and security organization in the world, with offices in 33 U.S. cities and 275 U.S. diplomatic posts overseas. DSS is the law enforcement and security arm of the U.S. Department of State and is responsible for protecting U.S. diplomacy and the integrity of U.S. travel documents.

Matus, a career member of the Senior Foreign Service, joined DSS as a special agent in 1987. Throughout his 34 years of service, Matus has served around the world at U.S. embassies in Honduras, Panama, Afghanistan, Austria, Haiti, Pakistan, Brazil; DSS field offices in Washington, D.C., and Miami; and at DSS headquarters.

Among his most recent career highlights, Matus served as director of protective intelligence investigations, 2016; senior regional security officer, U.S. Embassy Kabul, Afghanistan, 2016-17; deputy assistant secretary for the high threat programs directorate, 2017-19; and acting deputy assistant secretary for threat investigations and analysis until he assumed the position of acting DSS director in 2020.

Matus is an individual recipient of multiple State Department meritorious and superior honor awards. The U.S. Marine Corps recognized him twice as Regional Security Officer of the Year for D Company. Most recently, he received the Presidential Rank Award for Meritorious Executive.

Before joining DSS, Matus graduated from the University of Maryland and the Inter-American Defense College. He holds a Master’s degree in Security and Hemispheric Defense from the University of Salvador, Buenos Aires, Argentina. More information about Carlos Matus is available at: https://www.state.gov/biographies/carlos-f-matus/

In 2016, we published  an submitted letter from a Diplomatic Security employee about the lack of diversity in the top ranks of the bureau leadership (see Dear @JohnKerry: One of Your Foggy Bottom Folks Is Asking — Is This Diversity?).   At that time, there were two senior positions held by female officers and one by an African-American at the bureau.
Today, the leadership at Diplomatic Security remains overwhelmingly male and white, with but ONE senior female official occupying the Deputy Assistant Secretary and Assistant Director Training Directorate. There are currently , three African Americans in its leadership positions including the assistant secretary. Given that Diplomatic Security is one of the top five bureaus with the highest number of sexual harassment complaints, you’d think that the bureau would work harder in growing the ranks of senior female officials in its leadership ranks.
It looks like that’s not happening anytime soon. So will Diplomatic Security ever appoint a senior female agent anywhere besides the International Programs Directorate or the Training Directorate? (see Inbox: A belief that there’s no place for a female in Diplomatic Security agent ranks especially at HTPs?).  As DSS Director? Or as a Principal Deputy? No?
Well, now, we’d like to know why. Why are female officials hard to find in the bureau’s senior leadership ranks?

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Related posts:

Former @StateDept Employee Pleads Guilty To Honest Services Fraud Scheme

 

This is a follow-up to the June 2, 2021 post we did — SDNY Charges @StateDept Contractor in Multimillion-Dollar Fraud Schemes, Then There’s “Insider-1” at OBO.

On September 20, 2021, the Justice Department announced that May Salehi, a former State Department employee, pled guilty today to conspiracy to commit honest services fraud.  See U.S. v. May Salehi.
Below is the USDOJ announcement: Former State Department Employee Pleads Guilty To Honest Services Fraud Scheme

May Salehi Provided Confidential Bidding Information to a Bidder and Received Lucrative Kickback Payments in Return

Audrey Strauss, the United States Attorney for the Southern District of New York, Michael Speckhardt, the Special Agent in Charge of the U.S. Department of State, Office of Inspector General (“State Department OIG”), and Thomas Fattorusso, Acting Special Agent in Charge of the Internal Revenue Service, Criminal Investigation, New York Field Office (“IRS-CI”), announced that MAY SALEHI, a former State Department employee, pled guilty today to conspiracy to commit honest services fraud.  SALEHI was a longtime State Department employee who was involved in evaluating bids for critical overseas government construction projects such as U.S. embassies and consulates.  SALEHI gave confidential inside bidding information to a bidder, and received $60,000 in kickback payments in return.  SALEHI surrendered today and pled guilty before United States Magistrate Judge James L. Cott.  SALEHI’s case is assigned to United States District Judge P. Kevin Castel.

Manhattan U.S. Attorney Audrey Strauss said: “As a State Department employee, May Salehi was entrusted to serve the public.  Instead, she abused her position of trust to line her own pockets, as she admitted today.  Salehi revealed, and traded on, confidential information – corrupting the bidding process and receiving lucrative kickbacks in return.  Together with our law enforcement partners, this Office is committed to rooting out corruption.”

State Department OIG Special Agent in Charge Michael Speckhardt said: “The State Department OIG is dedicated to preserving the integrity of the Department’s programs and processes.  As government employees, we are entrusted to carry out our responsibilities with integrity and support an equitable process.  May Salehi did just the opposite.  She used her position of public trust to selfishly obtain a personal financial advantage by selling proprietary contracting information for profit.  Today’s plea, the culmination of extensive investigative and prosecutorial efforts, demonstrates that those who violate the public’s trust will be held accountable for their actions.”

IRS-CI Acting Special Agent in Charge Thomas Fattorusso said: “May Salehi violated the trust of the American taxpayer by putting her personal financial gain over her responsibilities to safeguard confidential information and government resources. Today’s guilty plea shows IRS-Criminal Investigation will continually work with our law enforcement partners to protect the American taxpayer from this type of abuse.”

According to the allegations in the Information, court filings, and statements made in court:

From 1991 until mid-2021, MAY SALEHI was a State Department employee.  For many years, SALEHI worked as an engineer in the State Department’s Overseas Building Operations division (“OBO”), which directs the worldwide overseas building program for the State Department and the U.S. Government community serving abroad.

In 2016, the State Department solicited bids for a multimillion-dollar construction project known as a compound security upgrade to be performed at the U.S. Consulate in Bermuda (the “Bermuda Project”).  The bidding process involved the submission of blind, sealed bids from various bidders.  Six companies submitted sealed bids, one of which was named Montage, Inc. (“Montage”).

SALEHI was involved in the Bermuda Project in several respects.  Among other things, SALEHI served as the Chair of the Technical Evaluation Panel (“TEP”) – a panel of experts that evaluates the technical aspects of bids, including whether they meet the State Department’s structural and security needs.  In connection with the Bermuda Project, the TEP disqualified one bidder, but determined that the other five bids (including Montage’s bid) were technically acceptable.

In September 2016, the State Department’s employees who evaluate the cost of bids gave the remaining five bidders (including Montage) the opportunity to re-bid, if they wished to do so.  Montage had two days to decide whether to submit a re-bid.  During that two-day window, Montage’s principal, Sina Moayedi, spoke with SALEHI by phone and sought confidential inside bidding information about the relationship between Montage’s bid and those of its competitors, which SALEHI supplied.  SALEHI knew that this information was confidential, and that it was unlawful to provide it to a prospective bidder.  After Moayedi received this inside information from SALEHI, Montage immediately increased its bid by $917,820.  In its revised submission to the State Department, Moayedi and Montage lied as to the reason it had increased its bid by nearly $1 million, falsely claiming that it had discovered “an arithmetic error” in its estimates.  Montage was ultimately awarded the Bermuda Project with a revised bid of $6.3 million.

In the months that followed, Moayedi paid SALEHI a total of $60,000 in kickbacks, which he paid in three installments.  In making these kickback payments, Moayedi used intermediaries to obscure the link between him and SALEHI.  To conceal the true purpose of the kickback payments, SALEHI also gave one of the intermediaries a Persian rug.  SALEHI did not report the $60,000 kickback payments on her State Department financial disclosure form.

* * *

SALEHI, 66, of Washington, D.C., pled guilty to one count of conspiracy to commit honest services fraud, which carries a maximum sentence of five years in prison.  The maximum potential sentence in this case is prescribed by Congress and is provided here for informational purposes only, as SALEHI’s sentence will be determined by Judge Castel.

Sina Moayedi was arrested on May 28, 2021, on three charges contained in a criminal Complaint: wire fraud, conspiracy to commit wire fraud, and bribery of a public official.  The charges against Moayedi are pending.

Ms. Strauss praised the outstanding investigative work of the State Department OIG, Special Agents from the United States Attorney’s Office for the Southern District of New York, and IRS‑CI.  She also thanked Special Agents from the United States Attorney’s Office for the District of Columbia and the Montgomery County, Maryland, Police Department.

The Office’s Complex Frauds and Cybercrime Unit is handling this criminal case.  Assistant U.S. Attorneys Michael D. Neff and Louis A. Pellegrino are in charge of the prosecution.

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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.

EEOC Reasonable Accommodation Case Gets Damage Award of $50K

 

Via EEOC Appeal 2019003637 (June 16, 2020):
Commission Increased Award of Damages to $50,000.
The Agency found that Complainant was denied reasonable accommodation, and awarded him $2,000 in nonpecuniary compensatory damages.   The Commission increased the award to $50,000 on appeal.  The Commission found that Complainant’s pre-existing knee injury was aggravated when the Agency denied Complainant access to a closer parking lot and required that he walk up a steep hill to and from his building even though his work restrictions on file limited his walking and restricted him from climbing steep hills.  The Commission considered statements from Complainant’s wife and two coworkers, who indicated that Complainant’s behavior changed following the denial of accommodation.  These individuals noted Complainant was no longer a “happy-go-lucky guy,” had sleepless nights, became disengaged from his family, and was a “different person” after the discrimination.  The Commission concluded that the evidence was sufficient to support an award of $50,000, which was consistent with awards in similar cases.  The Commission affirmed the Agency’s denial of past pecuniary damages finding that Complainant had not provided any documentation to support his purported personal costs associated with the discrimination.  Lowell H. v. Dep’t of State, EEOC Appeal 2019003637 (June 16, 2020).
Details below from EEOC Appeal:

During the period at issue, Complainant worked as a Motor Vehicle Operator, GS-8, at the Agency’s Operations Division in Washington, D.C.

On January 3, 2018, Complainant filed a formal EEO complaint claiming that the Agency discriminated against him based on disability (torn left medical collateral ligament (MCL) in left knee, torn left rotator cuff and left toe)2 when:

1. Complainant was denied a reasonable accommodation;

2. on August 17, 2017, Complainant received a memo regarding disciplinary action;

3. on September 20, 2017, Complainant received a Letter of Warning; and

4. Complainant was subjected to a hostile work environment, characterized by, but not limited to heightened scrutiny regarding his requests for leave, inappropriate language, and yelling.

Complainant was diagnosed with these conditions following a December 17, 2016 work-related injury. The injuries restricted Complainant to driving no more than four hours a day, limited Complainant’s use of his left arm to handle luggage, and limited walking to no more than twenty-five feet (including no climbing of steep hills).

On November 7, 2018, following an investigation, the Agency issued a final decision concluding that Complainant had established a failure to accommodate his disability in connection with parking privileges, the approval of leave requests, and the issuance of a letter of warning. For relief, the Agency ordered, among other remedies, a supplemental investigation into his claim for compensatory damages.

On April 10, 2019, the Agency issued a final decision on compensatory damages. The Agency rejected Complainant’s request for $300,000 in nonpecuniary compensatory damages. Instead, the Agency awarded Complainant $2,000 in nonpecuniary compensatory damages. In reaching this amount, the Agency reasoned that Complainant did not provide sufficient evidence to support that he suffered any long or short term physical or mental harm due to being denied his preferred parking arrangement, denied consideration of his leave requests, or being issued attendance-related discipline. With respect to his parking assignment, the Agency noted that Complainant indicated that his parking assignment at Navy Hill “aggravated” his pre-existing knee injury, without explaining the extent or type of aggravation he experienced. The Agency also disputed Complainant’s claim that he missed “a few sessions of therapy,” and indicated that the Agency’s November 7, 2018 decision only determined that Complainant was denied leave for one medical appointment. Finally, the Agency indicated that Complainant’s request for $300,000 is more akin to a request for punitive damages, even though punitive damages are not permitted on a federal-sector complaint.

The Agency awarded $2,000 in nonpecuniary damages. We find, however, that that an award of $50,000 is more consistent with the amounts awarded in similar cases.

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USAID/OIG General Counsel Nicole Angarella to be the Next USAID Inspector General

 

President Biden announced his intent to nominate Nicole Angarella who serves as the general counsel to the USAID Inspector General to be the next USAID Inspector General. The WH released the following brief bio:

Nicole Angarella, Nominee for Inspector General, United States Agency for International Development

Nicole Angarella serves as the general counsel to the USAID Inspector General. In that position, Ms. Angarella leads a team of attorneys and specialists that provides independent legal counsel to the Inspector General, deputy inspector general, senior managers, and staff. Her office provides comprehensive legal advice, research, and guidance to the Offices of Audit, Investigations, and Management within the Office of Inspector General (OIG). Her office also updates the Inspector General and staff on legal developments and represents OIG in Federal and administrative litigation.

Prior to her appointment as general counsel, Ms. Angarella served as a senior legal counsel at USAID OIG and at the Department of Transportation’s OIG. Ms. Angarella has spent her entire federal career in the Inspector General community. She is Chair of the Council of Counsels to the Inspectors General. Before joining the U.S. Government, she worked as an associate attorney in the General Litigation & White Collar Criminal Defense Practice Group at Cozen O’Connor, an international law firm representing corporate and individual clients in Federal investigations and complex criminal and civil matters. She also worked as an associate attorney specializing in employment and labor relations law at a law firm in Washington, DC. Ms. Angarella has a B.A. in political science from the University of Mary Washington and a law degree from the Columbus School of Law at The Catholic University of America. Ms. Angarella is a member of both the Virginia State Bar and the District of Columbia Bar.

If confirmed, Ms. Angarella would succeed Inspector General Ann Calvaresi Barr who served at USAID from November 2015 until her retirement from Federal service on December 31, 2020. Thomas J. Ullom, who served for more than 2 years as Deputy Inspector General, became USAID’s Acting Inspector General on January 1, 2021.

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