EEOC: US Embassy Yemen FSN Discrimination Claim Over Denial of Overtime Fails

 

This is an instructive case for local employees of U.S. missions overseas. Even during a crisis, especially during a crisis, during chaos, even during evacuations, if a local employee is tasked to do work outside or normal work hours, there must be overtime pre-approval by the the supervisor (typically this means the American officer-supervisor).   In this EEOC case, the local employee claimed 1,952 hours of overtime for work purportedly done from 2015-2019. Without documented pre-approval by the American supervisor, Uncle Sam is not obligated to pay.
Even if a supervisor  or some other embassy official asked for work to be done; even if work was actually done as requested …if there’s no record or documentation regarding the overtime requests or preapproval for the overtime “as required”, there would be “no basis to grant the overtime pay.”
All good supervisors and decent human beings hopefully will ensure that pre-approvals are made and granted before any work requests are made of the local staff. Otherwise, you’ll be asking, and no one will be paying …. and that would disturb one’s conscience. Or should.
Via EEOC Appeal No. 2020003186:
At the time of events giving rise to this complaint, Complainant worked as a Defensive Security  Coordinator, Grade 10, at the Agency’s U.S. Embassy in Yemen. On April 30, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment on the bases of race (Arabian) and national origin (Yemen) when:

1. Complainant was denied overtime compensation for work he performed since 2015, and as recently as April 3, 2019;

2. Complainant has been denied a higher base salary level commensurate with his other American citizen colleagues; and
3. He was subjected to a hostile work environment, characterized by, but not limited to, his supervisor’s requests that he return his U.S. government-issued vehicle.  The most recent request was March 18, 2019.
Complainant was hired by the Agency in 2010, as a Local Hire under the Local Hire Program at the U.S. Embassy. Complainant has dual citizenship; he was born in Yemen and became an American citizen on September 22, 2006. He averred management knew his race and national origin because he was a Local Hire.

Claim 1 – Denial of Overtime (OT) Compensation since 2015

Complainant claimed that he held two different positions with the Agency. First, Complainant stated that he performed Defensive Security Coordinator duties from January 2014 to July 2019. Complainant stated that he had been granted overtime for years in this position prior to the Embassy’s evacuation in 2015. Secondly, Complainant claimed that he performed Regional Security Officer (RSO)/Team Lead duties from February 2015 to November 2015. Complainant claimed that his duties increased after taking on that role. Complainant alleged that he was called at all hours of the day and night.


On February 12, 2015, the Embassy where he worked was forced to evacuate. Shortly thereafter, in March, war ensued. After Complainant worked to coordinate the evacuation, he returned to the U.S. The Embassy suspended operations in 2015. The record indicates that Complainant’s entire work history was destroyed along with all other employee files that were kept onsite. The record indicates, however, that he remained on the Agency rolls until July 2019.


Complainant stated that after the evacuation, his work continued and he says his responsibilities escalated, but he was not fairly compensated. Complainant alleged that he sent an email to management officials, including his supervisor at the time (S1-2), listing all of the dates he worked overtime but he received no response. Further, Complainant claimed that he was told that they would try to process it, but he might have to wait until the Embassy reopened.


S1-2 acknowledged that Complainant held the Defensive Security Coordinator position and was eligible for overtime, but only with a prior authorization from his supervisor. He averred that he was the one to approve, but he averred “no requests for overtime were made.” S1-2 further confirmed, however, that Complainant provided information in support of his claim for 1,952 hours of overtime. S1-2 said that he forwarded the overtime claim to the Department and asked Complainant for further documentation.


Complainant submitted an email to his supervisor regarding his overtime on December 12, 2018, and after he did not receive a reply, he reached out to the Office of Civil Rights.

He received a reply on April 3, 2019. In the response, S1-2 informed Complainant that there was no record or documentation regarding his overtime requests or preapproval for the overtime as was required. Therefore, there was no basis to grant the overtime pay.

Claim 2 – Denial of Higher Compensation Given to American Colleagues

While working in the RSO section, Complainant believed that he was entitled to a higher base salary. Complainant averred that he should have received a new contract, inasmuch as he was promised a promotion. Complainant alleged that his former supervisor (S1-1) tasked him with controlling everything but did not ensure that he was compensated fairly. In addition, Complainant alleged that numerous officials over the years failed to ensure that he was compensated fairly or transition his job status. Complainant asserted that all of the issues stemmed from the fact that he was hired as a Locally Employed Staff. Complainant averred that, unlike his non-Arabian colleagues, he had to pay for his family to evacuate Yemen because of the war, but the government paid for the other employees’ families to evacuate. Complainant state that he was also put on at least one Reduction-in-Force list, but the notice was rescinded.
[…]
Complainant averred that he thought he could “work his way up” because of his American citizenship status. He acknowledged that he was hired as a Locally Employed Staff employee, which does not have a Career Ladder progression.

Claim 3 – Hostile Work Environment/Demand for Vehicle Return

Before the February 2015 evacuation of the Embassy where Complainant worked, he had been assigned a vehicle. The car is still parked at his relatives’ home in Yemen. When he and others were forced to flee in 2015, it was assumed that he would be able to come back in about a month.
He averred the Agency stopped him from going back because of the risks for him. On February 4, 2019, S1-2 issued a directive that the car be returned to service. The two communicated via email during the period February 23, 2019 to March 14, 2019. Complainant told him that he
feared his family would be placed in danger if the vehicle was retrieved. To protect his family still in Yemen, Complainant asked for certain safeguards. There were no further communications after April 2019.
[…]
In the decision, the Agency found that Complainant was not subjected to discrimination as alleged.
[…]
Upon review of the record, we find that Complainant has not presented sufficient argument or evidence to establish that the Agency’s explanations for its actions were pretext intended to mask discriminatory motivation. As a result, we find that Complainant was not subjected to the discrimination as alleged.

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AFSA Urges USG Move Quickly on Aghanistan, Members Offer to Help With Processing/Hosting New Arrivals

 

AFSA is the professional association and exclusive representative for the U.S. Foreign Service. Its membership includes retirees and almost 80 percent of the active Service. AFSA President Eric Rubin released the following statement on Afghanistan:

The fall of Kabul was a painful and wrenching day for all of us, especially for our Foreign Service colleagues, members of other U.S. government agencies, non-governmental organizations and members of the U.S. and allied militaries who served their country under difficult and at times perilous circumstances in the two-decade long war in Afghanistan. We lost treasured Foreign Service and Foreign Service National colleagues and remember with deep respect and appreciation the several thousand U.S. servicemembers who lost their lives and many more who came home grievously injured, physically and emotionally.

Now is the time to support our colleagues and the servicemembers who remain behind in Afghanistan or are in the process of returning to protect and assist with evacuation efforts. We hope and pray that many of the Afghan citizens who assisted us and the multilateral coalition in our efforts will be able to reach safe-haven and begin their lives anew. We recognize and deeply regret that some will almost certainly be left behind. We urge the U.S and allied governments to do everything possible to help those who wish to leave, and to insist on the safety of all those who remain.

We urge our government to continue to move quickly to bring as many Afghans to safety as is humanly possible, and to admit as many as possible to the United States as refugees or parolees. The administration has already waived medical exams for entry. Security vetting is obviously essential, but other clearances such as financial arrangements can wait. Many of our members, including retired members with years of experience rescuing refugees from earlier wars, have contacted us to offer help with processing and hosting new arrivals. We hope such offers will be accepted quickly.

In the meantime, our thoughts are with our fallen colleagues and servicemembers and with the long-suffering people of Afghanistan. They must not be forgotten.

This is a welcome statement. The anti-refugee voices are starting to fill the airwaves and social media with fear mongering. You can view some here, here, here, and here. The hashtag #refugeesNOTwelcome is also trending this morning.
No one wants to be forcibly displaced from one’s community and home country. Please help if you can.

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@StateDept Sends M Nominee John Bass to Kabul to Leverage “Logistics Experience” in Evacuation

 

 

Via State Department, August 17:

— We’ve now completed our drawdown to the core diplomatic presence we need, and at this time we will no longer – at this time no longer need to facilitate departures for our embassy personnel.

— All remaining embassy staff will be assisting departures from Afghanistan, and the department is surging resources and Consular Affairs personnel to augment the relocation of American citizens and Afghan special immigrants – special immigrants, and elsewhere adding personnel to assist with P-1/P-2 adjudication processing.

— We’ve successfully relocated many of our locally employed staff and are in direct contact with the remainder to determine who is interested in relocation and the process for doing so.

— Ambassador John Bass – a seasoned career diplomat and former ambassador to Afghanistan, Turkey, and Georgia – is heading to Kabul today to lead logistics coordination and consular efforts. A career member of the Senior Foreign Service, Ambassador Bass brings decades of experience from service at seven U.S. missions overseas and in leadership positions, including executive secretary, here in Washington. Ambassador Wilson, who has remained in Kabul, will continue to lead our diplomatic engagement.

So this is a massive logistical undertaking. The – our presence, our diplomatic presence in Kabul, this is a focus of theirs. Obviously, there is a lot of other important business that needs to get done from management to engagements with the – with Afghans. And so what Ambassador Bass will be doing is overseeing the logistics of this rather large, rather ambitious, expansive operation. He’ll be using and leveraging his managerial expertise and logistics experience to help Ambassador Wilson and the broader Embassy Kabul management team with this challenge.

He is going there to work on the nuts and bolts of this, just given how logistically challenging this is.

In July, President Biden nominated Ambassador Bass, a career member of the Senior Foreign Service to be the next Under Secretary of State (Management). If confirmed, he would succeed Pompeo BFF Brian J. Bulatao. The nomination is pending in the SFRC as of this writing.

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World Watches With Shock as Trump Mob Storms United States Capitol

 

We wished we could say that we were shocked with the insurrection that happened at the U.S. capital city today.  Given the last four years of  the president and his enablers living in world based in an alternate reality, this was the unavoidable conclusion. It is not a coincidence that a U.S. president who gave a speech about the American carnage during his inauguration now ends his administration this way. We kept hearing from TV people that they have never seen anything like this before. That’s true but if you have lived overseas in developing countries, you have seen something like this happened before, others have seen this many times before. It almost always never ends well for the country.
We as a country cannot let this stand. If there are no consequences for these actions, this is bound to happen again. How easy was it again for the mob to breach the U.S. capitol? How long did it take for reinforcement to come? Four hours? What’s going to happen next time, take lawmakers hostages so they cannot continue with the election certification?  For the elected officials who sheltered in place today inside the capitol, this guy sure learned his lesson!  Where is your red line?
Below, the world watched with shock and disbelief.

GERMANY

AUSTRIA

UNITED KINGDOM

SPAIN

ITALY

FRANCE

EUROPEAN UNION

OSCE

NATO

UKRAINE

LITHUANIA

ESTONIA

COLOMBIA

IRELAND

NORWAY

CROATIA

CANADA

AUSTRALIA

Pompeo Hosts Game of Distraction: From “Enormous Evidence” to “Somewhere in the vicinity of the lab” #cliffhanger

 

 

Pompeo, May 7, 2020:

“I think the whole world knows that this began and originated there in Wuhan.  Where exactly it came from, it matters.  We want to know the answers to that.  There’s evidence that it came from somewhere in the vicinity of the lab, but that could be wrong.”

Pompeo, May 3, 2020:

And Mr. Secretary, have you seen anything that gives you high confidence that it originated in that Wuhan lab?

SECRETARY POMPEO:  “Martha, there is enormous evidence that that’s where this began.  We’ve said from the beginning that this was a virus that originated in Wuhan, China.  We took a lot of grief for that from the outside, but I think the whole world can see now.  Remember, China has a history of infecting the world and they have a history of running substandard laboratories.  These are not the first times that we’ve had a world exposed to viruses as a result of failures in a Chinese lab.  And so while the Intelligence Community continues to do its work, they should continue to do that and verify so that we are certain, I can tell you that there is a significant amount of evidence that this came from that laboratory in Wuhan.”

@StateDept Issues Global “Authorized Departure” For Certain USG Personnel and Family Members

Updated: March 15, 8:26 pm PDT:

On March 15, 2020, the State Department issued an updated Global Level 3 Health Advisory: Reconsider Travel. It also announced that the day before it authorized “the departure from any diplomatic or consular post in the world of US personnel and family members who have been medically determined to be at higher risk of a poor outcome if exposed to COVID-19.” So the “authorized departure” or voluntary evacuation depends on the determination of the local MED unit or based on current medical clearance?
Excerpt below:

The Department of State advises U.S. citizens to reconsider travel abroad due to the global impact of COVID-19. Many areas throughout the world are now experiencing COVID-19 outbreaks and taking action that may limit traveler mobility, including quarantines and border restrictions. Even countries, jurisdictions, or areas where cases have not been reported may restrict travel without notice.   

On March 14, the Department of State authorized the departure from any diplomatic or consular post in the world of US personnel and family members who have been medically determined to be at higher risk of a poor outcome if exposed to COVID-19.

For the latest information regarding COVID-19, please visit the Centers for Disease Control and Prevention’s (CDC) website.

Keeping workplaces, homes, schools, or commercial establishments safe.

You are encouraged to visit travel.state.gov to view individual Travel Advisories for the most urgent threats to safety and security. Please also visit the website of the relevant U.S. embassy or consulate to see information on entry restrictions, foreign quarantine policies, and urgent health information provided by local governments.

Travelers are urged to enroll in the Smart Traveler Enrollment Program (STEP) to receive Alerts and make it easier to locate you in an emergency. The Department uses these Alerts to convey information about terrorist threats, security incidents, planned demonstrations, natural disasters, etc. In an emergency, please contact the nearest U.S. Embassy or Consulate or call the following numbers: 1(888) 407-4747 (toll-free in the United States and Canada) or 1 (202) 501-4444 from other countries or jurisdictions.

We will update if/when we know more.
Update 8:26 pm PDT: 
The cable released by State/M Brian Bulatao says:  “Effective March 14, 2020, I hereby approve authorized departure (AD) from any diplomatic or consular post of U.S. direct hire employees or eligible family members (EFMs) as listed on employee orders and defined in 14 FAM 511.3 who, after confidential consultation with MED, have determined they are at higher risk of a poor outcome if exposed to COVID-19, or who have requested departure based on a commensurate justification in foreign areas.”
Our source, not from Public Affairs, interpret this to mean that  MED approval is not specifically required but you need to refer to MED when you go tell your boss you want out.
The  last time we had a global authorized/ordered departure order was probably during Y2K, was it? (The State Department at that time also issued an edict stating that all embassies must be prepared to be self-sufficient for 30 days by January 1, 2000). 
Would be interested to hear how this plays out this coming week and how folks are weighing the decision whether to avail of the voluntary evacuation to return to the United States shortly versus staying put at post. Given the slow response and unsettling chaos with the USG’s handling of the pandemic domestically, the decision may depend on post, location, and healthcare system in the host country. Drop us a note if you want to share. 

 

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Pompeo’s New Songs Bring Back the Old Times With #BaghdadBob

 

 

Trump in His “Great and Unmatched Wisdom” Green-lights Turkish Incursion, Abandons US-Backed Kurds

 

 

Miles With Mike This Week: Level Three Orange Alert, and Nothing Remotely Good