USAID/OIG Takes First Stab in Autopsy of Tillerson’s State/USAID Redesign

Posted: 1:45 am ET

 

In response to last year’s congressional request, USAID/OIG reviewed “USAID’s process in developing its reform plans and its compliance with congressional notification requirements.” We believe this is the first official accounting available on what transpired during Tillerson’s Redesign project, but primarily on the USAID side. We’re looking forward to State/OIG’s review of the project on its side.

The March 8, 2018 USAID/OIG report titled “USAID’s Redesign Efforts Have Shifted Over Time” was publicly posted on March 9, 2018. This report was originally marked “Sensitive But Unclassified (SBU)” and when publicly released, some of the appendices were redacted apparently at the assertion of the State Department and USAID that these be withheld from public view (see Appendix D, E and F. “USAID and the State Department have asserted that these appendixes should be withheld from public release in their entirety under exemption (b)(5) of the Freedom of Information Act, 5 U.S.C. 552(b)(5). OIG has marked this material SBU in accordance with 22 CFR 212.7(c)(2), which states that the originator of a record is best able to make a determination regarding whether information in that record should be withheld”).

USAID/OIG’s task was to determine (1) how USAID developed its redesign plans pursuant to Executive Order 13781, which were addressed by describing both the events and actions taken by USAID to develop its reform plans and the assessments of USAID’s actions by those involved in the process, and (2) whether USAID complied to date with fiscal year 2017 appropriation requirements.

USAID/OIG  interviewed 42 officials from across USAID. Interviewees included USAID employees from the Administrator’s Office, members of the Transformation Task Team, employees across every bureau and independent office, and overseas mission directors. The report says that these individuals were selected because of their knowledge of specific portions of the redesign process. There was also a survey that includes all 83 USAID mission directors worldwide (27 of whom responded). USAID/OIG also interviewed six senior officials from the State Department involved in the joint redesign process “to corroborate USAID testimony and portray a more balanced, objective sequence of events leading to the reform plan submissions.”

USAID/OIG’s conclusion:

“Results of our point-in-time review indicate good intentions by USAID as well as the State Department. However, USAID’s limited involvement in the design of the listening survey, uncertainty about redesign direction and end goals, and disagreement and limited transparency on decisions related to the consolidation of functions and services raise questions about what has been achieved thus far and what is deemed actionable. Given the concerns raised by USAID personnel, transparency—as well as compliance with congressional notification requirements—could prove challenging as redesign plans turn into actions.”

The details below are excerpted from the report:

Redesign process was resource-intensive and ad hoc

  • During this nearly 3-month process, USAID reported contributing around 100 employees (mostly senior officials) spanning 21 of its 24 bureaus and independent offices. Ten employees were detailed full-time to the effort. These participants were 48 percent Civil Service employees, 28 percent Foreign Service employees, 7 percent political appointees, and 5 percent contractors.
  • The State Department was reported to have brought around 200 people into the process.
  • According to work stream leaders, the State Department’s initial guidance for the teams was to “think big” with “no guardrails,” but the lack of boundaries and explicit goals hindered progress. The looming question of whether USAID would merge into the State Department not only distracted teams but further confused the direction of the redesign process.
  • The initial lack of direction was viewed as a hindrance by representatives from all work streams.
  • Participants described the joint redesign process as “ad hoc.” Interviewees from both the State Department and USAID noted instances when leaders of the joint process seemed unsure of the next steps. For example, a senior State Department official involved in coleading a work stream said there was not a lot of preparation, and the work streams did not know what the final products would be.

Joint disjointed efforts and disagreements

  • USAID shared its supplemental plan with the State Department days before the OMB deadline. A senior State Department official stated that the State Department was not pleased with the supplemental plan, noting that some of USAID’s proposals should have been developed through the joint process. The State Department asked USAID to remove some of its proposals relating to humanitarian assistance, foreign policy, and strategic international financing because State Department’s decisions regarding these areas had not been finalized. In the end, the supplemental plan USAID submitted to OMB contained 15 proposals (appendix E), while the version previously submitted to the State Department had 21. The six removed supplemental proposals are shown in appendix F. A senior USAID official noted, however, that USAID let OMB know what the filtered and unfiltered supplemental plan looked like.
  • Interviewees from the work streams and various leadership positions noted disagreement on decisions related to consolidation of USAID and State Department functions and services. Members from the work streams at all levels stated that the ESC—tasked to resolve disagreements within the work streams—rarely did so and was often unable to reach consensus on major issues such as the consolidation of IT and management services, or how to divide humanitarian assistance and funding decisions between the State Department and USAID.
  • Even after some decisions were thought to have been made, USAID officials reported instances when the State Department would revisit the decisions, forcing USAID to defend what was already considered resolved. This rethinking of decisions led a number of interviewees from both USAID and the State Department to wonder whether there were strong advocates for consolidation of services within the State Department.
  • Officials familiar with ESC [Executive Steering Committee] also noted that the committee lacked a formal process to resolve disagreements, and opinions were often split along State Department and USAID lines. As a result, some decisions on consolidation were left on hold and remain undecided.

USAID not part of listening survey decision

  • According to a top USAID official, the decision to administer a survey was made by the State Department alone, and USAID had little say as to whether it should participate or how the survey would be administered. USAID was not part of the contracting process with Insigniam and was brought in after most of the details were decided. The week following the issuance of OMB’s memorandum guidance, Insigniam engaged State Department and USAID officials to provide input into developing the listening survey questions but gave them less than 2 business days to provide feedback. A small group of senior USAID officials worked over the weekend to compile suggestions and submitted it by the requested deadline. Despite this effort, USAID officials did not feel their input was sufficiently incorporated into the survey. 

Questions about data integrity

  • Questions of data integrity were raised, including projected cost savings of $5 billion that would be realized with the proposed reforms—projections several USAID officials characterized as unrealistic. For example, one senior USAID official stated that the contractor responsible for compiling work stream data did not adequately understand USAID and State Department processes before applying assumptions.

 

  • The data and analysis behind the listening survey were also closely held. USAID officials reported requesting and being denied access to the complete, “raw” survey data, which is owned by the State Department. Some interviewees noted that without access to data, it would be difficult to interpret the magnitude of some of the issues identified in the listening survey.
  • This concern with data integrity was consistent throughout our interviews. For example, a senior USAID official stated that Deloitte—who was compiling data for work stream decision making—did not obtain an adequate understanding of processes before applying assumptions to them. Other work stream participants said that because data came from different systems in USAID and the State Department, it was difficult to accurately compare scenarios between agencies. According to several interviewees familiar with the data, the process had poor quality assurance. For example, documents were kept on a shared server with no version control. Moreover, interviewees noted that much of the decision-making information for the work streams was “experiential”—based on the backgrounds of people in the subgroup rather than hard data.
  • In addition, interviewees from both the State Department and USAID questioned Insigniam’s recommendation to move the State Department’s Bureau of Consular Affairs to the Department of Homeland Security—a recommendation some claimed was unlikely to have been based on data from the listening survey. This prompted a number of those involved in the reform process to question how survey input had been processed and the validity of the rest of Insigniam’s takeaways.

(NOTE: A source previously informed us that only 5-6 individuals have access to the raw data; and that the survey data is in a proprietary system run by Insigniam. Data collected paid for by taxpayer money is in a proprietary system. We were also told that if we want the data, we have to make an FOIA request to the Transformation Management Office, but our source doubts that State will just hand over the data).

Concerns about inclusiveness and transparency

  • A number of interviewees, including some mission directors and heads of bureaus and independent offices, felt the redesign process was not only exclusive, but also lacked transparency. According to senior USAID staff, OMB instructed the Agency to keep a close hold on the details of the redesign. While some mission directors noted that biweekly calls with bureau leadership, agency announcements, and direct outreach kept them informed of the redesign process as it occurred, field-based officials expressed dismay and disillusionment with what seemed to be a headquarters-focused process.

Mission closures and congressional notifications

  • [W]hile mission closings remain under consideration, some actions taken by USAID raised questions about compliance with notification requirements to Congress. To meet the congressional notification requirement, USAID must notify the Committees on Appropriations before closing a mission or reorganizing an office. The Consolidated Appropriations Act of 2017, Section 7034, requires congressional notification “prior to implementing any reorganization of the Department of State or the United States Agency for International Development, including any action taken pursuant to the March 31, 2017, Executive Order 13781.”
  • Specific mention of USAID’s offices in Albania, India, and Jamaica as candidates for the chopping block.

Non-notification and violation of FY2017 appropriations legislation

  • In the case of USAID/RDMA [Regional Development Mission for Asia], our analyses of USAID’s actions were less conclusive and raised questions about compliance with notification requirements to Congress. On August 17, 2017, the Acting Deputy Administrator requested from the Asia Bureau and USAID/RDMA a closure plan for the regional mission. The closure plan would outline the timing, funding, and staff reductions for a 2019 closure date. It was noted that the closure plan was for discussion purposes only, and USAID leadership would consult with the State Department to ensure that any future decisions would be in line with overall U.S. foreign assistance and foreign policy strategy.
  • [O]n August 18, 2017, the Agency removed six Foreign Service Officer Bangkok positions from a previously announced bid list. The Agency also informed the U.S. Embassy Bangkok, counterparts in the State Department’s East Asia/Pacific Bureau, and USAID leadership in the Bureaus of Democracy, Conflict, and Humanitarian Assistance and Global Health of a planned closure of USAID/RDMA’s activities. USAID leadership noted that they were given until the end of 2019 to complete the actual phaseout. Our best assessment is that the totality of the Agency’s actions relating to USAID/RDMA— without notifying Congress—violated the spirit of the FY 2017 appropriations legislation. 13

Aspirational savings of $5 to $10 Billion: not based on analysis, “came out of nowhere”

  • According to the joint plan, the proposed reforms would yield $5 billion in savings (link inserted) over a 5-year period; however, this amount did not factor the investment costs of $2.8 billion over that same period, which would result in net savings of $2.2 billion. These projections were characterized as unrealistic by several USAID officials. A senior USAID official involved in reviewing data stated that the $5 billion projection was unrealistic given the process used by the State Department and USAID to gather and analyze information. The official stated that the State Department’s reported aspirational savings of $10 billion was not based on analysis, but rather “came out of nowhere.”

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State/OIG’s Upcoming Reports to Include Evaluation of Sexual Harassment, Hiring Authority

Posted: 12:50 am  ET

 

The State Department’s Inspector General started work on some subjects of note since last February. For those with stories to share about sexual harassment (and sexual assault), please contact the OIG Hotline or call 1-800-409-9926 and  1-202-647-3320.

We recognize that sexual harassment and sexual assaults are difficult to talk about, and all who we have been in contact with were deeply concerned of career repercussions. But we can all agree that these offenders – particularly high ranking individuals who abused their positions — will not stop until people stand up to them.

We’ve blogged about harassment and assaults for a while now.  Back in August 2016 , State/OIG told us that while they take allegations of sexual harassment “very seriously” as a general matter, “OIG refers allegations of sexual harassment, equal employment opportunity, and/or potential hostile work environment to the Department’s Office of Civil Rights (S/OCR), consistent with the FAM.”

State/OIG also informed us then that “if such matters appear systemic, then OIG may investigate. Indeed, in its report “Review of Selected Internal Investigations Conducted by the Bureau of Diplomatic Security” (ESP-15-01) OIG examined the case of a Diplomatic Security manager with a long history of sexual harassment and misconduct allegations dating back 10 years.”

Also this: “Department employees who believe they have been subjected to whistleblower retaliation may contact OIG or the Office of Special Counsel (OSC). OIG can help the individual in understanding their rights and may investigate the retaliation, as well as alert the Department to any illegal reprisal.”

It took awhile but it looks like the IG is looking into this now. We hope that people will find the courage to speak up and consider sharing their stories. We don’t know when this moment will come again.

    • Evaluation of the Department’s Treatment of Reports of Sexual Harassment
    • Evaluation of the Department of State’s Use of Schedule B Hiring Authority
    • Inspection of the Bureau of Administration, Office of Critical Environment Contracting Analytics, Risk Analysis and Management
    • Inspection of the Status of Benghazi Accountability Review Board Recommendations

In April 2018, the following work were also started:

  • Audit of the Information Security Program for Sensitive Compartmented Information Systems at the Department of State
  • Inspection of the Bureau of Consular Affairs, Office of Fraud Prevention Programs

Note that this is not an exhaustive list of all the OIG work started.

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@StateDept Launches New System of Records to Capture All Emails — Hunting For Leakers, Plus Other Stuff

Posted: 1:55 am ET

 

We just stumbled into a December 12, 2017 announcement on the Federal Register about a “New System of Records” signed by Mary R. Avery, the Senior Agency Official for Privacy in the Office of Global Information Services of the State Department’s Bureau of Administration. The notice says that the “purpose of the Email Archive Management Records system is to capture all emails and attachments that interact with a Department of State email account and to store them in a secure repository that allows for search, retrieval, and view when necessary.”

In accordance with 5 U.S.C. 552a(e)(4) and (11), this system of records takes effect upon publication, with the exception of the routine uses that are subject to a 30-day period during which interested persons may submit comments to the Department.

The individuals covered by this new system? All State Department folks with state.gov emails, including people with interactions to those state.gov accounts, or mentioned in those email accounts:

“Individuals who maintain a Department of State email account that is archived in the system. The system may also include information about individuals who interact with a Department of State email account, as well as individuals who are mentioned in a Department of State email message or attachment.”

“The records in this system include email messages and attachments associated with a Department of State email account, including any information that may be included in such messages or attachments. The system may also include biographic and contact information of individuals who maintain a Department of State email account, including name, address, email address, and phone number.”

The location of this new system is reportedly at the State Department or annexes and post overseas but also that information “may also be stored within a government-certified cloud, implemented, and overseen by the Department’s Messaging Systems Office (MSO.”  

Does anyone know if this new system is managed by a specific contractor or contractors, and if so, which one/s?

Note that the new system does not just capture “record” emails for federal record purposes, but “all” emails.  The hunt for leakers starts here? Although if you read carefully item #f below, it looks like emails will also be shared and screened for potential insider attacks, not just on networks, but for “for terrorist screening, threat-protection and other homeland security purposes.”

And item #h… oh, my … for people with planned or ongoing litigations!  It has always been said that employees should have no expectation of privacy when using government systems; this new system clarifies it for everyone on how the State Department intends to use and share information in its email system.

Information in this new system may be shared with the following:

(a) Other federal agencies, foreign governments, and private entities where relevant and necessary for them to review or consult on documents that implicate their equities;

(b) a contractor of the Department having need for the information in the performance of the contract, but not operating a system of records within the meaning of 5 U.S.C. 552a(m).

(c) appropriate agencies, entities, and persons when (1) the Department of State suspects or has confirmed that there has been a breach of the system of records; (2) the Department of State has determined that as a result of the suspected or confirmed breach there is a risk of harm to individuals, the Department of State (including its information systems, programs, and operations), the Federal Government, or national security; and (3) the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with the Department of State efforts to respond to the suspected or confirmed breach or to prevent, minimize, or remedy such harm.

(d) another Federal agency or Federal entity, when the Department of State determines that information from this system of records is reasonably necessary to assist the recipient agency or entity in (1) responding to a suspected or confirmed breach or (2) preventing, minimizing, or remedying the risk of harm to individuals, the recipient agency or entity (including its information systems, programs, and operations), the Federal Government, or national security, resulting from a suspected or confirmed breach.

(e) an agency, whether federal, state, local or foreign, where a record indicates a violation or potential violation of law, whether civil, criminal or regulatory in nature, and whether arising by general statute or particular program statute, or by regulation, rule or order issued pursuant thereto, so that the recipient agency can fulfill its responsibility to investigate or prosecute such violation or enforce or implement the statute, rule, regulation, or order.

(f) the Federal Bureau of Investigation, the Department of Homeland Security, the National Counter-Terrorism Center (NCTC), the Terrorist Screening Center (TSC), or other appropriate federal agencies, for the integration and use of such information to protect against terrorism, if that record is about one or more individuals known, or suspected, to be or to have been involved in activities constituting, in preparation for, in aid of, or related to terrorism. Such information may be further disseminated by recipient agencies to Federal, State, local, territorial, tribal, and foreign government authorities, and to support private sector processes as contemplated in Homeland Security Presidential Directive/HSPD-6 and other relevant laws and directives, for terrorist screening, threat-protection and other homeland security purposes.

(g) a congressional office from the record of an individual in response to an inquiry from the Congressional office made at the request of that individual.

(h) a court, adjudicative body, or administrative body before which the Department is authorized to appear when (a) the Department; (b) any employee of the Department in his or her official capacity; (c) any employee of the Department in his or her individual capacity where the U.S. Department of Justice (“DOJ”) or the Department has agreed to represent the employee; or (d) the Government of the United States, when the Department determines that litigation is likely to affect the Department, is a party to litigation or has an interest in such litigation, and the use of such records by the Department is deemed to be relevant and necessary to the litigation or administrative proceeding.

(i) the Department of Justice (“DOJ”) for its use in providing legal advice to the Department or in representing the Department in a proceeding before a court, adjudicative body, or other administrative body before which the Department is authorized to appear, where the Department deems DOJ’s use of such information relevant and necessary to the litigation, and such proceeding names as a party or interests:

(a) The Department or any component of it;

(b) Any employee of the Department in his or her official capacity;

(c) Any employee of the Department in his or her individual capacity where DOJ has agreed to represent the employee; or

(d) The Government of the United States, where the Department determines that litigation is likely to affect the Department or any of its components.

(j) the National Archives and Records Administration and the General Services Administration: For records management inspections, surveys and studies; following transfer to a Federal records center for storage; and to determine whether such records have sufficient historical or other value to warrant accessioning into the National Archives of the United States.

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EEOC Case: Investigators Find False Accusations, Agency Refuses to Help Clear His Name

Posted: 3:01 am ET

 

This is an EEOC case about a complainant who was the Consul General at the U.S. Consulate General in Naples, Italy.  The name used here is a pseudonym as in eeoc practice but the details are similar to the ugly, nasty case a few years back that made the news.  Most notable lesson here about the Privacy Act, and the limits of  Diplomatic Security’s willingness to clear somebody’s name when needed.

Via eeoc.gov

Believing that the Agency subjected him to unlawful discrimination, Complainant filed an equal employment opportunity (EEO) claim with the Agency. On November 26, 2013, Complainant and the Agency entered into a settlement agreement to resolve the matter. This decision on the breached settlement was issued in November 2016. Excerpt below:

Background:

The record reflects that a subordinate of Complainant (Subordinate 1), who resigned in May 2012, and to a lesser extent her spouse made highly charged allegations against Complainant, i.e., entertaining prostitutes, escorts, and married women in his residence during work hours, engaging in fraud or mismanagement of funds, permitting his driver to be fired so his job could go to someone else and as a form of retaliation, throwing metal umbrella pots from his sixth floor residence down to the parking lot below and then jumping on and crushing them, and this was captured on CCTV and in front of the security guards, and so forth. By April 2013, the U.S. Embassy Rome, in consultation with the Bureau of Diplomatic Security, Special Investigation Division initiated an investigation. The investigation was conducted by two Special Agents with the Bureau of Diplomatic Security, and involved 20 individual interviews with Consulate Staff. It concluded that the accusation that Complainant threw metal pots was “false,” and the three other allegations specified above were completely false. The investigation found that the remaining allegations were variously false, completely false, unsubstantiated, not supported by evidence, and one, in essence, grossly exaggerated.

On June 16, 2013, the New York Post and Fox News published highly negative stories about Complainant, writing for example that Subordinate 1, a whistleblower, said Complainant had trysts with hookers, and this was the latest black eye for the scandal-ridden State Department. On June 17, 2013, Complainant was copied on an Agency email chain regarding the New York Post reporting Subordinate 1’s allegation that Complainant insisted a staffer have an abortion and the staffer said she got her “tubes tied” at his instruction. It was indicated in the email chain that the staffer said the article was “all lies” and felt strongly that she should respond to the article by saying something. The above DCM advised that it would be much better for the staffer not to say anything for now – that this could all blow over quickly.

In his EEO claim, according to Complainant, he alleged discrimination when he was denied assignments in line with his experience, ability, and professional background, the DCM knew that allegations against him by Subordinate 1, her spouse and two others were false and failed to take appropriate action, and management held him accountable for the false accusations and denied him support.

By letters to the Agency dated February 1, 2016 and May 10, 2016, Complainant alleged that the Agency misled him into entering into the settlement agreement and breached it. Specifically, he alleged that when he signed the settlement agreement, the Agency knew Subordinate 1’s EEO complaint had been investigated with a finding of no wrongdoing on his part, that she would likely continue to litigate in federal court, and he could have used the EEO decision to exonerate himself. Complainant wrote that after the settlement agreement, Subordinate 1 continued to attack him in the press, with articles appearing in prominent news outlets such as Newsweek and the New York Post. He pointed to a proposed June 2013 Agency press release recounting that the Diplomatic Security Service investigated the allegations and found no violations of U.S. or Italian law, and contended that had the press release been issued this would have rebutted the articles or they would not have been published. He argues that the Agency allowed employees and family members to utilize the EEO process to raise false allegations against him despite the Agency’s conclusion that they were baseless, and in failing to clear his name breached the settlement agreement and made it ineffective and unenforceable.

The Agency found that it complied with the settlement agreement. Regarding term 9.d, the Agency found that Complainant’s submittal of proposed changes to his 2012 EER was a condition precedent to the former DCM reviewing them and considering making changes, and Complainant admitted he did not submit proposed changes because he was too disheartened and depressed. On appeal, Complainant, who is represented by counsel, confirms this, but adds another reason was that he lacked the necessary facts, particularly the EEO decision on Subordinate 1’s complaint.

Regarding term 9.g, the Agency recounted that Complainant stated it was breached because (1) the Agency simply wrote a one page memorandum simply listing the allegations against him and stating they were found to be unsubstantiated rather than discussing things in context to show how his accusers seized on scandal to defame him and hinder his career, (2) the memorandum was only based on facts until October 2013, failing to fulfill its purpose of summarizing the Diplomatic Security investigation,3 and (3) the Agency, in response to his inquiries, could not give him a clear answer on whether he could share the memorandum with family, colleagues, friends, and his Italian attorney, preventing him from doing so. On appeal, Complainant confirms that he raised reasons (1) and (3). He argues that not being able to share the memorandum makes it useless and his reason for entering into settlement negotiations was to restore his reputation.

In determining that it complied with term 9.g, the Agency found that it met its obligation to provide a summary of the investigation, and that there is no evidence the parties agreed to any specific format in or upon the use of the memorandum.

In determining that it did not negotiate the settlement agreement in bad faith, the Agency found that Complainant cited no authority for the proposition that it was obligated to divulge the outcome of Subordinate 1’s EEO case, and there was no evidence it negotiated in bad faith.

On appeal, Complainant adds that he would not have bargained for a memorandum summarizing the results of the Bureau of Diplomatic Security’s investigation had he known he could not use it, this is common sense, and the Agency’s failure to authorize its use is a breach of the settlement agreement. Complainant argues that the Agency breached the settlement agreement by failing to live up to the spirit of the document. He argues that the Agency’s failure, upon his request, to allow the issuance of the proposed press release in the Agency’s name violates the settlement agreement.

In opposition to the appeal, the Agency argues that disclosing Subordinate 1’s employment discrimination investigation would violate privacy right protected information, and it did not negotiate the settlement agreement in bad faith.

Decision

In June 2013, after the New York Post reported highly charged accusations by Subordinate 1 about the way Complainant treated a staffer, an Agency email string on which Complainant was copied showed the staffer wanted to say something rebutting what was reported, but the former DCM opined it would be much better if the staffer did not say anything now – this could blow over quickly. Further, Complainant strongly suggests that he was aware the Bureau of Diplomatic Security investigation was favorable and he certainly knew the Agency had done nothing to publically clear his name. While Complainant wanted the Agency to publically clear his name, he agreed to a settlement agreement that did not have a term explicitly doing this. Instead, the Agency agreed to issue to a summary of the Bureau of Diplomatic Security to Complainant – not the public.

Complainant’s contention that the Agency bargained for the settlement agreement in bad faith is not persuasive. First, as argued by the Agency, it had reason to believe the administrative decision on Subordinate 1’s complaint was protected by the Privacy Act, since administrative EEO records are generally within the scope of the Act. Further, Complainant has not shown he did not already have sufficient information to make a fair bargain when negotiating the settlement agreement.

The FAD is AFFIRMED.

Read the full case here via eeoc.gov.

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@StateDept Spox Talks “No Double Standard Policy” and 7 FAM 052 Loudly Weeps

Posted: 2:58 am ET

 

So we asked about the State Department’s “no double stand policy” on December 5 after media reports say that classified cables went out  in the past 2 weeks warning US embassies worldwide to heighten security ahead of a possible @POTUS announcement recognizing Jerusalem as the capital of Israel.

On December 7, the State Department press corps pressed the official spokesperson about a cable that reportedly asked agency officials to defer all nonessential travel to Israel, the West Bank, and Jerusalem. Note that the security messages issued by multiple posts on December 5 and 6 with few exceptions were personal security reminders, and warnings of potential protests.  The Worldwide Caution issued on December 6 is an update “with information on the continuing threat of terrorist actions, political violence, and criminal activity against U.S. citizens and interests abroad.

None of the messages released include information that USG officials were warned to defer non-essential travel to the immediate affected areas. When pressed about this apparent double standard, the official spox insisted that “unfortunately, just as State Department policy, we don’t comment on official – whether or not there was an official communication regarding — regarding this.”

Noooooooooooooooooo!

The spox then explained  what the “no double standard” policy means while refusing to comment on official communication that potentially violates such policy. And if all else fails, try “hard to imagine that our lawyers have not gone through things.”  

Holy moly guacamole, read this: 7 FAM 052  NO DOUBLE STANDARD POLICY

In administering the Consular Information Program, the Department of State applies a “no double standard” policy to important security threat information, including criminal information.

Generally, if the Department shares information with the official U.S. community, it should also make the same or similar information available to the non-official U.S. community if the underlying threat applies to both official and non-official U.S. citizens/nationals.

If a post issues information to its employees about potentially dangerous situations, it should evaluate whether the potential danger could also affect private U.S. citizens/nationals living in or traveling through the affected area.

The Department’s “No Double Standard” policy, provided in 7 FAM 052, is an integral part of CA/OCS’s approach to determine whether to send a Message.  The double standard we guard against is in sharing threat-related information with the official U.S. community — beyond those whose job involves investigating and evaluating threats — but not disseminating it to the U.S. citizen general public when that information does or could apply to them as well.

Also this via 7 FAM 051.2(b) Authorities (also see also 22 CFR 71.1, 22 U.S.C. 2671 (b)(2)(A), 22 U.S.C. 4802, and 22 U.S.C. 211a):

…The decision to issue a Travel Alert, Travel Warning, or a Security or Emergency Message for U.S. Citizens for an individual country is based on the overall assessment of the safety/security situation there.  By necessity, this analysis must be undertaken without regard to bilateral political or economic considerations.  Accordingly, posts must not allow extraneous concerns to color the decision of whether to issue information regarding safety or security conditions in a country, or how that information is to be presented.

As to the origin of this policy, we would need to revisit the Lockerbie Bombing and Its Aftermath (this one via ADST’s Oral History).

The State Department’s official spokesperson via the Daily Press Briefing, December 7, 2017:

QUESTION: So a cable went out to all U.S. diplomatic and consular missions yesterday that asked State Department officials to defer all nonessential travel to the entirety of Israel, the West Bank, and Jerusalem. Normally when you are discouraging American officials from going to a particular area, under the no double standard rule, you make that public to all U.S. citizens so that they have the same information. I read through the Travel Warnings on Israel, the West Bank, and Gaza yesterday, both in the middle of the day and then at the end of the day after the worldwide caution, and I saw no similar warning to U.S. citizens or advice to U.S. citizens to defer nonessential travel to those areas. Why did you say one thing in private to U.S. officials and another thing – and not say the same thing in public to U.S. citizens?

MS NAUERT: Let me state the kinds of communication that we have put out to American citizens and also to U.S. Government officials. And one of the things we often say here is that the safety and security of Americans is our top priority. There are top policy priorities, but that is our overarching, most important thing, the safety and security of Americans.

We put out a security message to U.S. citizens on the 5th of December – on Monday, I believe it was. We put out a security message to our U.S. citizens that day – that was Tuesday? Okay, thank you – on the 5th of December. We put out another one on the 6th of December as well, expressing our concerns. We want to alert people to any possible security situations out of an abundance of caution. That information was put, as I understand it, on the State Department website, but it was also issued by many of our posts overseas in areas where we thought there could be something that could come up.

In addition to that, there is a Travel Warning that goes out regarding this region. That is something that is updated every six months, I believe it is. This Travel Warning for the region has been in effect for several, several years, so that is nothing new. In addition to that, we put out a worldwide caution. That is updated every six months. We had a worldwide caution in place for several years, but yesterday, out of an abundance of caution, we updated it. As far as I’m aware of, and I won’t comment on any of our internal communications to say whether or not there were any of these internal communications because we just don’t do that on any matter, but I think that we’ve been very clear with Americans, whether they work for – work for the U.S. Government or whether they’re citizens traveling somewhere, about their safety and security. This is also a great reminder for any Americans traveling anywhere around the world to sign up for the State Department’s STEP program, which enables us to contact American citizens wherever they are traveling in the case of an emergency if we need to communicate with them.

QUESTION: But why did you tell your officials not to travel to those areas between December 4th and December 20th, and not tell American citizens the same things? Because you didn’t tell that to American citizens in all of the messages that you put up on the embassy website, on the consulate website, nor did you tell American citizens that in a Worldwide Caution, nor did you tell them that in the link to Israel, the West Bank, and Gaza that was put out by the State Department in the Worldwide Caution yesterday. You’re telling your people inside one thing, and you’re telling American citizens a different thing, and under your own rules, you are – there is supposed to be no double standard. Why didn’t you tell U.S. citizens the same thing you told the U.S. officials?

MS NAUERT: Again, unfortunately, just as State Department policy, we don’t comment on official – whether or not there was an official communication regarding —

Image via Wikimedia Commons by Saibo

QUESTION: (Off-mike.)

MS NAUERT: – regarding this. But I can tell you as a general matter, I think we have been very clear about the security concerns regarding Americans. We have put out those three various subjects or types of communications to American citizens who are traveling in areas that could be affected.

QUESTION: I’m going to ask you –

MS NAUERT: In terms of the U.S. Government, when we talk about the U.S. Government deferring non-essential travel, I would hope that people would not travel for non-essential reasons just as a general matter anyway.

QUESTION: But why – I’m going to ask you a hypothetical, which I would ask you to entertain, if you’ll listen to it.

MS NAUERT: I’ll listen to it. I’d be happy to listen to it.

QUESTION: If there were such communication, and you know and every U.S. diplomat who gets an ALDAC, which means every other person who works at the State Department knows that this communication went out – so if there were such communication, why would you say one thing to your own officials and a different thing to American citizens —

MS NAUERT: As our —

QUESTION: – which is what the law and your own rules require?

MS NAUERT: As you well know, we have a no “double standard.” And for folks who aren’t familiar with what that means, it’s when we tell our staff something about a particular area or a security threat, we also share that same information with the American public. I would find it hard to imagine that our lawyers have not gone through things to try to make sure that we are all on the same page with the information that we provide to U.S. Government officials as well as American citizens. And that’s all I have for you on that. Okay? Let’s move on to something else.

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U.S. Passport Identifiers For Registered Sex Offenders Went Into Effect on Oct 31, 2017

Posted: 1:34 pm PT

 

Via State/CA:

The passport identifier provision of International Megan’s Law to Prevent Child Exploitation and Other Sexual Crimes Through Advanced Notification of Traveling Sex Offenders (IML) (Public Law 114-119) went into effect on October 31, 2017.

The IML prohibits the Department of State from issuing a passport to a covered sex offender without a unique identifier, and it allows for the revocation of passports previously issued to these individuals that do not contain the identifier (22 USC 212b).

The identifier is a passport endorsement, currently printed inside the back cover of the passport book, which reads: “The bearer was convicted of a sex offense against a minor, and is a covered sex offender pursuant to 22 United States Code Section 212b(c)(l).”  Since endorsements cannot be printed on passport cards, covered sex offenders cannot be issued passport cards.

Only the DHS/ICE Angel Watch Center (AWC) can certify an individual as a “covered sex offender.” Therefore, any questions by the applicant about such status must be directed to and resolved by AWC.

Applicants who have questions for AWC regarding their status or believe they have been wrongly identified as a covered sex offender as defined in Title 22 United States Code 212b(c)(1) should contact AWC at DHSintermeganslaw@ice.dhs.gov.

*

On February 08, 2016, President Obama signed into law H.R. 515, the “International Megan’s Law to Prevent Child Exploitation and Other Sexual Crimes Through Advanced Notification of Traveling Sex Offenders,” which (1) authorizes the Department of Homeland Security’s Angel Watch Center and the Department of Justice’s National Sex Offender Targeting Center to send and receive notifications to or from foreign countries regarding international travel by registered sex offenders; and (2) requires the Department of State to include unique identifiers on passports issued to registered sex offenders.

According to DHS/ICE, its Homeland Security Investigations (HSI), Operation Angel Watch was initially created in 2007 and is managed by the Child Exploitation Investigations Unit of the ICE Cyber Crimes Center and is a joint effort with U.S. Customs and Border Protection (CBP) and the U.S. Marshals Service. Operation Angel Watch targets individuals who have been previously convicted of sexual crimes against a child and who may pose a potential new threat: traveling overseas for the purpose of sexually abusing or exploiting minors, a crime known as “child sex tourism.”

Through Operation Angel Watch, HSI uses publicly available sex offender registry information and passenger travel data to strategically alert foreign law enforcement partners through its HSI attaché offices of a convicted child predator’s intent to travel to their country. In Fiscal Year 2015, HSI made over 2,100 notifications to more than 90 countries.

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Libyan National Charged in 2012 Attack on U.S. Special Mission and Annex in #Benghazi

Posted: 2:22 am ET
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Media reports say that U.S. special forces have captured a militant who was allegedly involved in the 2012 deadly attack on the U.S. diplomatic compound and CIA annex in Benghazi, Libya.  The suspect has been identified as Mustafa al-Imam. An unnamed official told the AP that the suspect was captured in Misrata, on the north coast of Libya and was taken to a U.S. Navy ship at the Misrata port for transport to the United States.

Per DOJ announcement:

Mustafa al-Imam, a Libyan national approximately 46 years old, has been charged for his alleged participation in the Sept. 11, 2012, attack on the U.S. Special Mission and Annex in Benghazi, Libya, which resulted in the deaths of four Americans.

“The murder of four Americans in Benghazi on September 11, 2012 was a barbaric crime that shocked the American people. We will never forget those we lost – Tyrone Woods, Sean Smith, Glen Doherty and Ambassador Christopher Stevens – four brave Americans who gave their lives in service to our nation,” said Attorney General Jeff Sessions.  “We owe it to them and their families to bring their murderers to justice. Today the Department of Justice announces a major step forward in our ongoing investigation as Mustafa al-Imam is now in custody and will face justice in federal court for his role in the attack.  I am grateful to the FBI, our partners in the intelligence community and the Department of Defense who made this apprehension possible.  The United States will continue to investigate and identify all those who were involved in the attack – and we will hold them accountable for their crimes.”

“The apprehension of Mustafa al-Imam demonstrates our unwavering commitment to holding accountable all of those responsible for the murders of four brave Americans in a terrorist attack in Benghazi,” said U.S. Attorney Jessie K. Liu for the District of Columbia.  “Together with our law enforcement partners, we will do all that we can to pursue justice against those who commit terrorist acts against the United States, no matter how far we must go and how long it takes.”

Mustafa al-Imam is charged in a recently unsealed three-count criminal complaint.  The complaint, which was filed under seal on May 19, 2015, in the U.S. District Court for the District of Columbia, charges al-Imam with:

  • Killing a person in the course of an attack on a federal facility involving the use of a firearm and dangerous weapon and attempting and conspiring to do the same.
  • Providing, attempting and conspiring to provide material support to terrorists resulting in death.
  • Discharging, brandishing, using, carrying and possession of a firearm during and in relation to a crime of violence.Al-Imam is in U.S. custody, and upon his arrival to the U.S. he will be presented before a federal judge in Washington, D.C.

Read the full announcement here.

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Who’s a Slacker in Policing Sexual Misconduct in Federal Agencies? Take a Guess

Posted: 1:26 am ET
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WaPo just did a piece on sexual misconduct in federal agencies, or the lack of consistent disciplinary practices across agencies based on the staff report by the House Oversight Government Report Committee (report embedded below).

Here’s a public request from WaPo’s Joe Davidson who writes the Federal Insider column:

Questions for Federal Insider readers: How pervasive is sexual harassment in the federal government? If you have been the target of sexual harassment, please tell us the circumstances, what form the harassment took, whether it was reported, what was done about it and whether the perpetrator was disciplined. We will use this information for a future column. In certain cases we can print your comments without identification. Please send your comments to joe.davidson@washpost.com with “sexual misconduct” in the subject line.

Here is an excerpt from the OGRC, a case study that is distinctly familiar:

The hearing examined patterns of sexual harassment and misconduct at the USDA, as well as the fear many employees had of retaliation for reporting these types of cases. It also addressed the agency’s response to harassment incidents and its efforts to improve.66

At the hearing, two women testified publicly about the harassment they personally experienced while on the job at the Forest Service and how the agency’s subsequent investigation and discipline failed to address those responsible. Witness Denice Rice testified about her experiences dealing with sexual harassment on the job when her division chief was allowed to retire before facing discipline, despite his history of misconduct.67 Further, the Forest Service re-hired this individual as a contractor and invited him to give a motivational speech to employees.68 In addition, witness Lesa Donnelly testified about her and others’ experiences with sexual misconduct at the Forest Service. Her testimony spoke about those who were too afraid to report harassment because they feared retaliation from the perpetrators.69

The report cites USAID and the State Department for having Tables of Penalties but although it cites USAID for having “differing Tables of Penalties for foreign service employees and other civilian employees primarily covered by Title 5, United States Code”, it says that the State Department’s Table is “used for foreign service employees only”.

The Foreign Affairs Manual actually spells out penalties for both Foreign Service and Civil Service employees.

3 FAM 4370 LIST OF OFFENSES SUBJECT TO DISCIPLINARY ACTION – FOREIGN SERVICE

24. Use of U.S. Government equipment for prohibited activities, including gambling, advertising for personal gain, or viewing, downloading, storing, transmitting, or copying materials that are sexually explicit, while on or off duty or on or off U.S. Government premises

50. Violation of laws, regulations, or policies relative to trafficking in persons and the procurement of commercial sex, any attempt to procure commercial sex, or the appearance of procuring commercial sex

51.  Sexual Assault (3 FAM 1700)

3 FAM 4540 LIST OF OFFENSES SUBJECT TO DISCIPLINARY ACTION – CIVIL SERVICE

24. Use of U.S. Government equipment for prohibited activities, including gambling, advertising for personal gain, or viewing, downloading, storing, or transmitting, or copying materials that are sexually explicit, while on duty.

48. Violation of laws, regulations, or policies relative to trafficking in persons and the procurement of commercial sex, any attempt to procure commercial sex, or the appearance of procuring of commercial sex

49. Sexual Assault (3 FAM 1700)

You will note by now that sexual harassment is not on these Tables of Penalties.  Both regs cited above have a section that says its Table of Penalties is not an all-inclusive list. The State Department says “It is impossible to list every possible punishable offense, and no attempt has been made to do this:” But it includes this:

#a. Employees are on notice that any violation of Department regulations could be deemed misconduct regardless of whether listed in 3 FAM 4540.  This table of penalties lists the most common types of employee misconduct.  Some offenses have been included mainly as a reminder that particular behavior is to be avoided, and in the case of certain type of offenses, like sexual assault, workplace violence, and discriminatory and sexual harassment, to understand the Department’s no-tolerance policy.

#b. All employees are on notice that misconduct toward, or exploitation of, those who are particularly vulnerable to the employee’s authority and control, e.g., subordinates, are considered to be particularly egregious and will not be tolerated.

The State Department’s sexual harassment policy is here.  Also see  3 FAM 1520  NON-DISCRIMINATION ON THE BASIS OF RACE, COLOR, NATIONAL ORIGIN, SEX, OR RELIGION updated last in December 2010.

For blogposts on sexual harassment click here; for sexual assaults, click here.

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U.S. Embassy’s Nurse Nightmare Not Subjected to Discrimination, EEOC Affirms

Posted: 1:24 am ET
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Via eeoc.gov:

This EEOC case involves an embassy nurse who filed an equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII) in 2013. Two things are striking about this case: 1) there was an incident that according to the EEOC decision involved the Complainant’s actions during a visit to a local hospital. According to the record, Complainant was so rude that “a letter [was] signed by all Azerbaijani doctors, nurses, and administrative staff that had been present” documenting his behavior and it was sent to the Embassy in Baku; and 2) an incident where the Complainant had been engaged in a political debate with members of the Embassy motor pool staff. He became angry and “stormed out” of the area then, within five minutes, Complainant called their supervisor “demanding” that the four drivers see him to be medically evaluated for their fitness for work. On March 2017, the EEOC affirmed the State Department’s  decision that Complainant did not demonstrate that he was subjected to discrimination, reprisal and/or harassment.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Locally Employed Staff (LES), Registered Nurse at the U.S. Embassy in Baku, Azerbaijan. On October 1, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of national origin (Azerbaijani), sex (male), religion (Muslim), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:

(1) On May 24, 2013, he was issued a Letter of Reprimand;

(2) His EPR reporting period was extended beyond the one-year calendar cycle, contrary to normal practice;

(3) On September 10, 2013, his position was terminated; and

(4) He was subjected to a hostile work environment characterized by, but not limited
to isolation from co-workers, threats, and demeaning and inappropriate comments.

After the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge. When Complainant did not request a hearing within the time frame provided, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency found that, assuming Complainant established a prima facie case of discrimination and reprisal with respect to all his bases, management articulated legitimate, nondiscriminatory reasons for its actions.

Regarding issue 1, Complainant was issued a Letter of Reprimand because in early May 2013 management was notified by their contacts at the Anti-Plague Section (APS) of the Azerbaijani Ministry of Health that Complainant had called them, yelled at their employee who had answered the call and when the employee refused to identify himself, Complainant called the Ministry of Health wherein he stated his name and indicated that he was calling from the American Embassy. He then proceeded to complain about the APS. Management indicated that this event damaged their relationship with the Ministry of Health. The Human Resources Officer indicated that she had to apologize and promise that Complainant would be re-trained on telephone etiquette.

Regarding issue number 2, the Agency explained that Complainant’s reporting period was extended beyond the one-year cycle because he had been placed on a Performance Improvement Plan (PIP) in November 2012, to address several issues, e.g., exceeding the legal scope of his nursing license. Shortly after he was placed on the PIP, Complainant took an extended period of leave beginning on November 29, 2012 and ending January 7, 2013. Because Complainant had been off work for more than eight weeks of the 120-day PIP period, the decision was made to extend the PIP for an additional 60 days. The Human Resources Officer advised that the 60-day extension period began on March 23, 2013 and concluded on May 24, 2013.

With respect to issue 3, Complainant’s September 10, 2013, termination. Complainant argued that his termination was due to complaints he made about unfair treatment and a hostile work environment. Management explained that Complainant’s termination was due to three instances of misconduct. The first incident involved the telephone call that was described in issue 1. The second incident involved Complainant’s actions during a visit to a local hospital. According to the record, Complainant was so rude that “a letter [was] signed by all Azerbaijani doctors, nurses, and administrative staff that had been present” documenting his behavior and it was sent to the Embassy in Baku. The third incident occurred when Complainant had been engaged in a political debate with members of the Embassy motor pool staff. He became angry and “stormed out” of the area then, within five minutes, Complainant called their supervisor “demanding” that the four drivers see him to be medically evaluated for their fitness for work. Complainant’s supervisor determined that he was “us[ing] [his] position to bully other colleagues when [he was] angry.” Complainant’s supervisor maintained that Complainant was terminated because, among other reasons, she needed to protect the other employees from his abusive and erratic behavior. The supervisor felt that to allow Complainant to continue working as a caregiver when people were afraid of him was not prudent or reasonable, and that his actions reflected badly on the U.S. Government.

Finally, with regard to issue 4, Complainant alleged that he was subjected to a hostile work environment, when: he complained that he found Halloween decorations offensive; an employee from another organization “made a few remarks about his beard,” including that it made him look “like one of [the]bad guys;” written “Workplace Conduct Expectations,” were issued because of him; his supervisor claimed that in the Azerbaijani culture, girls get married at around 13 years of age and Complainant found this to be a stereotype that he found offensive; and he had a conversation with a coworker where he believed the coworker was insinuating that people living in Azerbaijan were not able to seek their rights.

Complainant maintained that he went to outside officials because he could not resolve his problems with management since they were harassing him. He maintained that the alleged harassment affected him because it made him “emotionally less stable, depressed and easier irritated.” He also alleged that he experienced medical problems and started taking medication due to the alleged harassment.

Management maintained, among other things, that Complainant believed that policies were being applied to him and were personal attacks against him. Management indicated, however, that Complainant was not subjected to harassment. Management explained that after Complainant indicated that he was uncomfortable with the Halloween decorations they were taken down. Further, the comments made about his beard were made from an employee from another agency and there was no evidence that the comment was made in a hostile manner. Management indicated that the “Workplace Conduct Expectations” did not just apply to Complainant. Regarding Complainant’s claim that his supervisor commented that Azerbaijani girls as young as 13 years were married, she indicated that she had been invited to give a talk to young women in the villages about nutrition and health. In doing research in advance of her speech, she had asked Complainant what types of situations young girls faced (e.g., HIV, family planning, sexually transmitted diseases), at which time Complainant told her that girls as young as 13 years old were often married. She emphasized Complainant never told her he believed he was being subjected to a hostile work environment.

Management indicated that Complainant was not subjected to harassment, as the issues claimed were not severe or pervasive enough to establish a hostile work environment.

The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination, reprisal, and/or harassment as alleged.
[…]
ANALYSIS AND FINDINGS

Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that even if we assume arguendo that Complainant established a prima facie case of religion, sex, and national origin, discrimination and reprisal, the Agency articulated legitimate, nondiscriminatory reasons for its actions, as listed above. We find that Complainant has provided no evidence which suggests that the Agency’s reasons were pretext for discrimination or that discriminatory animus was involved in this matter. The record clearly showed that Complainant had a history of inappropriate and inflammatory behavior in the workplace. The Commission has long held that the Agency has broad discretion regarding its hiring and firing practices unless discrimination is shown. Accordingly, we find that discrimination has not been shown in this case. We also find that Complainant did not establish that he had been subjected to unlawful harassment in this case because the purported conduct, assuming it occurred as alleged, was neither severe or pervasive enough to establish a hostile work environment.

CONCLUSION

Accordingly, the Agency’s FAD which found that Complainant did not demonstrate that he was subjected to discrimination, reprisal and/or harassment is AFFIRMED.

The full decision is available to read here.

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@StateDept Dismisses EEO Complaint For Following Wabbit Into a Hole, EEOC Reverses

Posted: 1:45 am ET
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Here is an EEO case with a reminder that the Commission has previously held that an agency may not dismiss a complaint based on a complainant’s untimeliness, if that untimeliness is caused by the agency’s action in misleading or misinforming complainant.

Quick summary of case via eeoc.gov:

At the time of events giving rise to this complaint, Complainant worked as a Human Resources Specialist at the Agency’s Department of State facility in Washington, DC. Complainant contacted an EEO Counselor alleging that she was subjected to discrimination and a hostile work environment. When the matter was not resolved informally, the EEO Counselor emailed Complainant a Notice of Right to File (“NRF”), which Complainant received and signed on January 25, 2017. However, in that same email, the EEO Counselor conflated the EEO filing requirements, misinforming Complaisant that she had to file her signed NRF, rather than her formal complaint, within 15 days. On that same date, Complainant attempted to file her signed NRF with her EEO Counselor, who informed Complainant that the signed NRF had to be filed with the Agency’s Office of Civil Rights, and that filing the signed NRF with that office would initiate the formal EEO complaint process.

Complainant filed her signed NRF, rather than a formal complaint, to the Office of Civil Rights on January 25, 2017, and the Office of Civil Rights confirmed its receipt on January 27, 2017. Complainant therefore filed her signed NRF within the 15-day period that she was supposed to file her formal complaint. However, it was not until February 21, 2017, which was beyond the 15-day filing period, when the Office of Civil Rights informed Complainant that she had submitted the wrong form to initiate the formal EEO process, and that Complainant needed to file a formal complaint rather than her signed NRF.

On March 6, 2017, which was within 15 days of being informed that she had filed the wrong form, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex, disability, and reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when:

1. On 10/11/2016, she was denied the ability to telework;
2. On 11/10/2016, she was subjected to an environment of uncertainty and arbitrary decision making regarding her accommodation requests; and
3. She was subjected to a hostile working environment characterized by repeated acts of disparate treatment, unpleasant social interactions with management, and retracted support for locally negotiated reasonable accommodations.

The Agency dismissed Complainant’s complaint, pursuant to 29 C.F.R. § 1614.107(a)(2), for failing to file her formal complaint within 15 days of receiving her Notice of Right to File.

On appeal, Complainant contends that the Agency’s dismissal of her complaint should be reversed because her EEO Counselor mistakenly advised her to file her signed NRF, rather than a formal complaint, within 15 days of receiving her NRF, causing her to miss the filing period for her formal complaint.

The decision notes the following:

EEOC Regulation 29 C.F.R. §1614.106(b) requires the filing of a written complaint with an appropriate agency official within fifteen (15) calendar days after the date of receipt of the notice of the right to file a complaint required by 29 C.F.R. §1614.105(d), (e) or (f).

On June 28, 2017, the EEOC reversed the State Department’s decision to dismiss the complaint and remanded the case to the agency for further processing in accordance with its order as follows:

The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision was issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant’s request.

Compliance with the Commission’s corrective action is mandatory. Read the full decision here.

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