Around the FS World: New Faces at ASEAN, Brasilia, Vancouver, Peshawar, New Delhi

 

What’s up at OPM — why the immediate changes to login access to Employee Express?

 

The message reportedly went out from the Bureau of the Comptroller and Global Financial Services (CGFS) Global Compensation Communications Team on Wednesday, September 22, 2021, 08:50:00 AM PDT.The subject line says: “Immediate Changes to Login Access to Employee Express.”
Last Friday, September 17, 2021, the Office of Personnel Management (OPM) informed the Bureau of the Comptroller and Global Financial Services (CGFS) that the Employee Express (EEX) and Annuitant Employee Express (AEEX) user accounts will no longer be accessible by logging in with a username and password.
OPM is the agency that manages both the EEX and AEEX systems and suspended non-Personal Identification Card (PIV) and Common Access Card (CAC) access to EEX and AEEX as of 7:00 PM EST Friday, September 17.
OPM suspended it on Friday, and folks were notified the following Wednesday?
— Users will only be able to access their accounts using their agency-issued PIV Smartcard. This modification impacts both employee and annuitant customers.
— Customers who do not currently have a PIV Smartcard and need immediate assistance to access or modify payroll or benefits information that would typically be performed by EEX, should contact the following offices:
— For assistance with modifying Federal Employees Health Benefits (FEHB) information, contact Employee and Annuitant Services (EAS) at HRSC@state.gov or 1-866-300-7419.
— For PIV issues, please contact your bureau Information Technology department.
— For all other inquiries, please contact Payroll Customer Support by emailing Payhelp@state.gov.
OPM apparently has notified the State Department that they are working on an alternative solution for individuals who do not have a PIV Smartcard and plan to have this in place by November 1, 2021.
Oh, goody! That’s some five weeks away.
Now we want to know why the immediate urgency on these changes? Worth a question. Given it’s not too long ago when this happened — OPM Hack Compromises Federal Employee Records, Not Just PII But Security Clearance Info.

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Blinken’s #HavanaSyndrome Meeting, Also Spratlen is Out as Task Force Advisor

 

On September 3, we blogged about the Havana Syndrome again: Blinken Talks the Talk on Unexplained Health Incidents, Where’s the Walk? #HavanaSyndrome.
On September 21, NBC News reported that Secretary Blinken finally did meet with diplomats who were afflicted with the  Havana Syndrome mystery illness. It did not go very well, did it?
Via NBC News:

“It’s just incredibly sad. It’s the worst part of bureaucracy,” one of the diplomats said, describing the call as “identical to so many other phone calls” where they’re told about protocols in place to ensure proper treatment. “It’s so maddening because those protocols aren’t in place — not the way they think they are.”
[…]
A senior State Department official, responding to questions about Blinken’s call with the diplomats, acknowledged that there’s “frustration” among the group about a perceived stigma or lack of empathy by their colleagues, but said it did not extend to those at the top.

“That’s certainly not the case with the secretary and the senior leadership,” the official said in an interview. “Everyone is taking it seriously as a real issue that is affecting people who are experiencing real symptoms.”

Which members of the senior leadership is the SDO official talking about?

Diplomats told NBC News they were dismayed that Ambassador Pamela Spratlen, tapped by the Biden administration to oversee the State Department’s response, declined to conclusively rule out the mass hysteria theory.
[…]
One diplomat on the call described that response as “invalidating and inconsiderate.” Another said that Spratlen was “very clearly saying that she has not ruled out that we’re crazy.”  “In the end, we were interrupting Spratlen to try to get people in” to speak, a third diplomat on the call said. “It was ugly.”

Folks, if they’re talking about protocols in place that aren’t in place almost seven months after Blinken took office, then one can’t help but agree that Secretary Blinken is treating this “as an afterthought” as per former Senior CIA official Marc Polymeropoulos.
Another reason why we agree? Ambassador Spratlen who was appointed as Senior Advisor to the Havana Syndrome Task Force back in March is reportedly leaving after six months on the job. “The State Department says she’d reached her threshold of allowed labor hours under her status as a retiree.
Well, dammit! So Foggy Bottom did not know that she’s going to max out on her allowed labor hours? Excuse me, did they think this job is going to be done after 950 hours on the job? (Also see Havana Syndrome Questions @StateDept Refuses to Answer). Note that State Department’s re-employed annuitant employees can work no more than 1,040 hours during their appointment year.
McClatchy says that Blinken “considers choosing her [Spratlen’s] replacement an important decision, a senior State Department official said.
“The secretary has been seized with this issue even before he became secretary,” the official said. “One of the meetings he proactively requested before the transition was on this issue.”
Oh holymoly guacamole, give it a rest PR people! This is an old, old tired trick, even an old dog would not pick up this stick!
Frankly, this is  getting to be so exhausting! Look. The fact of the matter is it doesn’t matter if Secretary Blinken requested “proactively” a meeting on the Havana Syndrome issue BEFORE the transition.
In fact, the next State Department official to bring up Blinken’s request for a Havana Syndrome briefing before the transition should be promptly fired for persistently living in the past.
What matters is — what Blinken is doing about this issue NOW.

Chief Mouser Larry Survives BoJo’s Cabinet #Reshuffle, Now on His Sixth Foreign Secretary

 

 

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DOJ: Jury Convicts Foreign Service Officer and Former Spouse for Obtaining U.S. Citizenship by Fraud

 

Via USDOJ/September 13, 2021
Jury Convicts Foreign Service Officer and Former Spouse for Obtaining U.S. Citizenship by Fraud
ALEXANDRIA, Va. – A federal jury convicted a California woman and Russian-born man on Friday on charges of conspiracy and obtaining U.S. citizenship by fraud.
According to court records and evidence presented at trial, Laura Gallagher, 32, a Foreign Service Officer with the U.S. Department of State, and Andrey Kalugin, 36, originally of Russia, conspired together to obtain lawful permanent residence and U.S. citizenship for Kalugin through his marriage to Gallagher. 
“The jury’s verdict holds these two defendants accountable for orchestrating a scheme to defraud the United States and obtain unlawful citizenship and passports,” said Raj Parekh, Acting U.S. Attorney for the Eastern District of Virginia. “Gallagher disregarded her responsibilities to the public as a federal government employee and licensed attorney when she engaged in this fraudulent scheme with Kalugin. Thanks to the dedication of the trial team and our partners at the State Department, these defendants have been brought to justice.”
Evidence presented at trial demonstrated that the defendants met in law school in 2013. Kalugin was in the United States on a student visa that was due to expire in July 2015. The defendants married in June 2015 and submitted applications for Kalugin to obtain his “green card.” The defendants moved from California to Virginia in March 2016, but split up soon thereafter. However, they continued with the immigration process.
“The Diplomatic Security Service is firmly committed to working with the U.S. Attorney’s Office to investigate allegations of crime related to naturalization fraud and to bring those who commit these crimes to justice,” said Jessica Moore, Chief of the Criminal Investigations Division of the U.S. Department of State’s Diplomatic Security Service. “When a Department employee in a position of trust is alleged to have committed a federal felony involving naturalization fraud by exploiting their status, we vigorously investigate claims of corruption.” 
Gallagher, who is also a California-licensed attorney, then prepared for Kalugin an application for 319(b) expeditious naturalization, which is a benefit available to spouses of citizens who are regularly stationed abroad for their employment. The defendants provided materially false responses in the application, including that Kalugin was still in a good-faith marriage and intended to reside with Gallagher abroad and return with her to the United States. Kalugin appeared for an interview on Feb. 5, 2018 with U.S. Citizenship and Immigration Services (USCIS) in Fairfax, where he repeated the false statements to the adjudicating officer. After USCIS approved the application and he received his citizenship, Kalugin fraudulently obtained U.S. Diplomatic and tourist passports. Shortly thereafter, Gallagher filed for divorce.
Gallagher and Kalugin each face a maximum penalty of 10 years in prison when sentenced on Feb. 4, 2022. Actual sentences for federal crimes are typically less than the maximum penalties. Kalugin additionally faces mandatory revocation of his U.S. citizenship. A federal district court judge will determine any sentence after taking into account the U.S. Sentencing Guidelines and other statutory factors.
Raj Parekh, Acting U.S. Attorney for the Eastern District of Virginia, and Jessica Moore, Chief of the Criminal Investigations Division of the U.S. Department of State’s Diplomatic Security Service, made the announcement after Senior U.S. District Judge T. S. Ellis, III accepted the verdict.
Assistant U.S. Attorneys Raizza K. Ty and Morris R. Parker, Jr. are prosecuting the case.
A copy of this press release is located on the website of the U.S. Attorney’s Office for the Eastern District of Virginia. Related court documents and information are located on the website of the District Court for the Eastern District of Virginia or on PACER by searching for Case No. 1:21-cr-43.

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UHI in the News: ‘Havana Syndrome’ and the Mystery of the Microwaves

 

More clips about the unexplained health incidents (also known as Havana Syndrome) from BBC, an interview with retired CIA officer with PRI, and another case reported from the Canadian Foreign Service where “A high-ranking Canadian diplomat in Cuba was flown home for assessment this year after experiencing an attack consistent with Havana syndrome.”
Via BBC:

“This is not Havana syndrome. It’s a misnomer,” argues Mr Zaid, whose clients were affected in many locations. “What’s been going on has been known by the United States government probably, based on evidence that I have seen, since the late 1960s.”

Since 2013, Mr Zaid has represented one employee of the US National Security Agency who believed they were damaged in 1996 in a location which remains classified.

Mr Zaid questions why the US government has been so unwilling to acknowledge a longer history. One possibility, he says, is because it might open a Pandora’s Box of incidents that have been ignored over the years. Another is because the US, too, has developed and perhaps even deployed microwaves itself and wants to keep it secret.

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EEOC: @StateDept Failed to Provide Legitimate, Nondiscriminatory Reason for Not Promoting Complainant

 

Via EEOC: Terrie M. v. Dep’t of State,  EEOC Appeal No. 2019002167 (Sept. 22, 2020).
Agency Failed to Provide Legitimate, Nondiscriminatory Reason for Not Promoting Complainant.
Complainant, a Consular Section Chief at a U.S. Embassy, alleged, among other things, that the Agency discriminated against her on the basis of sex when it failed to promote her.  The Commission found that Complainant established a prima facie case of sex discrimination, and the Agency failed to articulate a legitimate, nondiscriminatory reason for its action.  Complainant was qualified for a promotion, as evidenced by her Employee Assessment Reviews, and responding management officials acknowledged that Complainant was eligible for the promotion.  Moreover, Complainant asserted that the prior curtailments of her overseas assignments due to her high-risk pregnancy impacted the ranking she received in the promotion process.  Therefore, Complainant had raised an inference that her sex was a factor in her non-selection for promotion.  The Commission found that the Agency failed to overcome Complainant’s prima facie case because the evidence was not sufficient to provide a specific, clear, and individualized explanation as to why Complainant was not selected for promotion.  While the Agency explained the general mechanics of the promotion process, it failed to provide an individualized explanation for Complainant’s specific situation.  The Agency was ordered, among other things, to retroactively promote Complainant, with appropriate back pay and benefits, and investigate her claim for damages.  Terrie M. v. Dep’t of State,  EEOC Appeal No. 2019002167 (Sept. 22, 2020).
Excerpt:

In the instant complaint, Complainant has alleged that because she is a woman who got pregnant  twice and had to curtail her assignments as a result, she was disadvantaged in the selection for promotion process. To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). To establish a prima facie case of sex discrimination, a complainant must show that: (1) she is a member of a protected group; (2) she is qualified for her position; (3) she suffered an adverse employment action; and (4) the circumstances give rise to an inference of discrimination.

Based on record evidence, we find that Complainant has established a prima facie case of sex discrimination. First, Complainant belongs to a protected group as she is female. Complainant is also qualified for promotion to the FSO-03 position. HDR1 also acknowledged that Complainant was eligible for the promotion; and the evidence shows that Complainant was a high-performing FSO as demonstrated by her EARs. Moreover, Complainant has asserted that she believes her prior curtailments of her assignments overseas due to her high-risk pregnancy impacted the ranking she received in the promotion process. Therefore, Complainant has raised an inference that her sex was a factor in her non-selection for promotion.3 Because Complainant established a prima facie case of sex discrimination, the Agency now has the burden of producing a legitimate, non-discriminatory explanation for not selecting Complainant for promotion.

Here, DDHR1, corroborated by DDHR2, explained that Complainant was not selected for promotion because she had been mid-ranked by the Selection Board. To support this explanation, the record only includes the same generalized information about the rules governing the selection process that the Commission had previously found insufficient, and which resulted in the complaint being remanded for a supplemental investigation. The record does not include pertinent documentation reviewed by the Selection Board and information regarding comparators. Also missing from the record are comparative data related to Complainant’s protected class or affidavits from Selection Board members; and thestatement of the Agency’s reasons for mid-ranking Complainant that led to her consequent non-selection for promotion. Moreover, the supporting testimony provided by DDHR2 does not add relevance to the instant complaint because, as Complainant stated, DDHR2 had only been in her position since June 1, 2018, nearly four years after Complainant’s non-promotion incident. DDHR2 herself indicated that she had no personal knowledge about Complainant or her non-promotion. In fact, the extent of the Agency’s explanations for its actions is that promotion decisions are based only on the documentation in the candidates’ Official Performance Folder for the most recent five years and at grades FS-02 and above, on the security incident records. The two DDHRs also stated that PE staff does not have information related to, nor will they address, personal or assignment decisions of employees, and only from the material submitted by the employee to his/her eOPF could this information be known.

We find that the evidence presented by the Agency is not sufficient to provide a specific, clear, and individualized explanation as to why Complainant was not selected for promotion in 2014. The Agency explained the general mechanics of the promotion process but failed to provide an individualized explanation for Complainant’s specific situation. See, e.g., Koudry v. Dep’t of Educ., Request No. 0520100196 (Apr. 13, 2010) (discrimination found where agency merely explained the mechanics of selection process, provided list of candidates deemed best qualified, and summarized applications of selectee and complainant, but failed to provide statements from selecting officials explaining how complainant’s qualifications were evaluated compared to selectee’s qualifications). The record does not indicate how the Agency determined which 76 candidates were selected for promotion or why Complainant was not one of the 76. Merely indicating that the Selection Boards rely only on information in candidates’ eOPF for making promotion decisions is not enough. Moreover, we add that the record also does not identify how or why the 76 candidates selected for promotion in 2014 received their scores and rankings. Simply stating that candidates who are mid-ranked do not receive scores is inadequate.

Moreover, nothing in the record provides a basis for dispelling Complainant’s belief that the staff of HR/PE had access to her curtailment memo as well as access to her personnel files which contained information about her pregnancy and presumably communicated with post leadership about the curtailment. Neither did the Agency refute Complainant’s assertion that the Board may have been aware of her pregnancy because the panel works closely with HR on promotions; and that the Board was also aware of the gaps in her tours and the shortened lengths of her tours because that was reflected in her personnel and evaluation files. As the Agency never presented any testimony from the Board members who reviewed Complainant’s promotion materials, we are left with only Complainant’s unrebutted assertions.

We note DDHR2’s statements that the Board notes are only retained for one year after dismissal of the FSSB and, therefore, were no longer available. In that regard, because Complainant filed her EEO complaint within a year of her non-selection for promotion, those statements should have been made available to the Investigator, given there was an ongoing EEO complaint being processed on this selection. See EEOC regulations at 29 C.F.R. Section 1602.14 (requiring employers to retain “all personnel records relevant to the charge or action until final disposition”

ORDER (D0617)
The Agency is ordered to take the following remedial actions:
I. The Agency will promote Complainant to FS-03 retroactively to the date she would have been promoted in 2014 absent discrimination, within thirty (30) calendar of the date this decision is issued.5 II. The Agency shall pay Complainant back pay with interest from the date in 2014 when Complainant would have started in the FS-03 position. The Agency shall determine the appropriate amount of back pay, with interest, and other benefits due Complainant, pursuant to 29 C.F.R. § 1614.501, no later than sixty (60) calendar days after the date this decision was issued. The Agency will ensure that all tax consequences are taken into account. Complainant shall cooperate in the Agency’s efforts to compute the amount of back pay and benefits due and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to Complainant for theundisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled “Implementation of the Commission’s Decision.”
III. The Agency will conduct and complete a supplemental investigation on the issue of Complainant’s entitlement to compensatory damages and will afford her an opportunity to establish a causal relationship between the Agency’s discriminatory action and her pecuniary or non-pecuniary losses, if any.  ….

The order is accompanied by a “Posting Order” which required the State Department to post the EEOC Notice signed by agency representative in DOS Washington, DC offices – in both hard copy and electronic format within 30 calendar days of the decision dated September 22, 2020, and to remain in place for 60 consecutive days in “conspicuous places”.  Anyone saw this posting order anywhere in the obscure corners of the Intranet?
Having seen the State Department  and the federal government negotiate on claims for damages like this, we would not be surprised if the negotiations for damages would run on not just for weeks, but months, even years. The goal is not really to find an agreement — the government has lawyers with limitless hours billable to Uncle Sam — the goal appears to be to negotiate up to the point where the complainant is exhausted that he/she would take whatever deal the government offers. Someday, somebody should calculate the costs when the government drag on these negotiations, as opposed to expeditious settlement when it is found to be in the wrong.
Read in full below:

Click to access 2019002167.pdf

 

Biden Nominates John Bass to be Under Secretary of State For Management

 

President Biden announced his intent to nominate former Ambassador John Bass to be the next Under Secretary of State for Management. The WH released the following brief bio:

John R. Bass, Nominee for Under Secretary of State for Management

John R. Bass, a career member of the Senior Foreign Service, class of Career Minister, currently is a Senior Advisor at the Department of State’s Foreign Service Institute. He has served as Ambassador to the Islamic Republic of Afghanistan, Ambassador to the Republic of Turkey, and Ambassador to the Republic of Georgia.  Previously, Bass focused, among other things, on supporting U.S. government efforts to mobilize allies and marshal resources to combat terrorism and instability in Iraq, Syria and Southwest Asia.  He served at seven U.S. Missions overseas including as Team Leader of Provincial Reconstruction Team – Baghdad at the American Embassy in Baghdad, Iraq.  In addition, he was the Executive Secretary of the State Department and held other senior leadership positions at the Department of State.  Bass earned an A.B. Cum Laude from Syracuse University. 

According to his online bios, Ambassador Bass began his diplomatic career in 1988 with early postings reportedly in Chad, Belgium, the Netherlands, and Italy.
In 1992, he was confirmed by the U.S. Senate for appointment as Foreign Service Officers of Class Four, Consular Officers and Secretaries in the Diplomatic Service of the United States of America.
In 1998, he went to work for Deputy Secretary of State Strobe Talbott (1994-2001) first as a special assistant for Europe and Eurasia and later as Talbott’s chief of staff in 2000 (presumably until Talbott’s departure from Foggy Bottom in 2001).
He served at the U.S. Embassy in Rome from 2002 to 2004.
From 2004 to 2005, Bass was a special advisor to Vice President Dick Cheney for Europe and Eurasia.
From 2005-2008, Bass was director of the State Department Operations Center during Condoleezza Rice’s tenure as secretary of state.
About 19 years after joining the Foreign Service, he was promoted into the Senior Foreign Service (SFS). In 2007, he was confirmed as a Career Members of the Senior Foreign Service of the United States of America, Class of Counselor.
He led the Baghdad Provincial Reconstruction Team (PRT) from 2008-2009.
President Obama nominated him as Ambassador to Georgia where he served from August 2009 to 2012.
In 2011, he was promoted within the Senior Foreign Service, Class of Minister-Counselor
He served as Special Assistant to the Secretary of State and Executive Secretary from 2012–2014, partly during Clinton’s tenure (2009-2013), and during Kerry’s tenure (2013-2017).
He served as Obama’s Ambassador to Turkey from 2014-2017
He served as  Trump’s Ambassador to Afghanistan from December 2017-January 2020.
Some 10 years after his promotion into the SFS, he was promoted within the Senior Foreign Service of the United States of America, Class of Career Minister in 2017.
In January 2020, he stepped down from a two-year tenure as Ambassador to Afghanistan.
We’re not sure where he went after Kabul but 18 months later, he was back in the news.
On July 21, 2021, President Biden announced his intent to nominate him as Under Secretary for Management at the State Department.
On August 18, the State Department sent him to Kabul to help with the evacuation (see @StateDept Sends M Nominee John Bass to Kabul to Leverage “Logistics Experience” in Evacuation).
As of this writing, his nomination (PN922 ) is pending at the Senate Foreign Relations Committee.
There is no/no other position in Foggy Bottom that has a more significant impact on the lives of employees and family members than the Under Secretary of State for Management. Now, we know that press clips say this appointment is part of the Biden’s administration’s “efforts to revive a demoralized diplomatic corps.”   We’ve also heard some quarters argue that the nominee is a 7th floor denizen who has never served in the Bureau of Administration or any of the functional bureaus under M, etc. etc. Remains to be seen either way what impact he makes once he is in office; he will be facing not just morale issues but also a host of internal management challenges.
Some added perspective –Ambassador Bass is not the secretary of state’s BFF unlike his predecessor; one could consider that good news. Also, he’s been in the service for 33 years, so with few exceptions, he knows more than most people appointed as State/M. He won’t need six months getting to know the institution and learning all the acronyms! If confirmed, he would only be the third career diplomat appointed as Under Secretary for Management (the others being Ronald Ian Spiers who served as “M” from 1983–1989 and Patrick F. Kennedy  who served from 2007–2017).
Hey, three career appointees out of the total 16 appointees since 1953 is a record!
Also good news, Ambassador Bass doesn’t have an Operation Anvil baggage coming into the job currently encumbered by …. ah, what were they thinking?!

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

 

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

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

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

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

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

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

 

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