Former @StateDept Employee Pleads Guilty to Conspiring with Foreign Agents

Former @StateDept Employee Pleads Guilty to Conspiring with Foreign Agents

 

 

 

This is a follow-up post to a 2017 case concerning a State Department employee arrested for concealing extensive contacts with intelligence agents from China (see @StateDept OMS Charged With Concealing Extensive Contacts With Chinese Intel Agents). Last month, USDOJ announced that Claiborne pled guilty to conspiring with foreign agents. Sentencing is scheduled for for July 9, 2019.

Download Claiborne Plea Agreement

Via USDOJ:

Former State Department Employee Pleads Guilty to Conspiring with Foreign Agents

Defendant Admitted Receiving Tens of Thousands of Dollars in Benefits From Two Chinese Agents in Exchange for Internal State Department Documents
Candace Marie Claiborne, a former employee of the U.S. Department of State, pleaded guilty today to a charge of conspiracy to defraud the United States, by lying to law enforcement and background investigators, and hiding her extensive contacts with, and gifts from, agents of the People’s Republic of China (PRC), in exchange for providing them with internal documents from the U.S. State Department.

The announcement was made by Assistant Attorney General for National Security John C. Demers, U.S. Attorney Jessie K. Liu of the District of Columbia, Assistant Director in Charge Nancy McNamara of the FBI’s Washington Field Office and Deputy Assistant Secretary Ricardo Colón, Domestic Operations, U.S. Department of State’s Diplomatic Security Service.

The plea took place before the Honorable Randolph D. Moss of the U.S. District Court for the District of Columbia.

“Candace Marie Claiborne traded her integrity and non-public information of the United States government in exchange for cash and other gifts from foreign agents she knew worked for the Chinese intelligence service,” said Assistant Attorney General Demers.  “She withheld information and lied repeatedly about these contacts.  Violations of the public’s trust are an affront to our citizens and to all those who honor their oaths.  With this guilty plea we are one step closer to imposing justice for these dishonorable criminal acts.”

“Candace Claiborne broke the public trust when she accepted gifts and money from foreign officials, and then lied about it to State Department background investigators,” said U.S. Attorney Liu. “The United States will continue to seek to hold accountable those who abuse their positions of trust.”

“Candace Claiborne was entrusted with Top Secret information when she purposefully misled federal investigators about her repeated interactions with foreign contacts which violated her oath of office as a State Department employee,” said Assistant Director McNamara.  “The FBI will continue to investigate individuals who fail to report foreign contacts, which is a key indicator of potential insider threats posed by those in positions of public trust.”

“Our close working relationship with the FBI and the Department of Justice resulted in the conviction of Candace Claiborne who violated the public trust and damaged our national security,” said Deputy Assistant Secretary Colón.  “Diplomatic Security will continue working with our law enforcement partners to vigorously defend the interests and security of the United States of America.”

According to the plea documents, Claiborne, 63, began working as an Office Management Specialist for the Department of State in 1999.  She served overseas at a number of posts, including embassies and consulates in Baghdad, Iraq, Khartoum, Sudan, and Beijing and Shanghai, China.  As a condition of her employment, Claiborne maintained a TOP SECRET security clearance.  Claiborne also was required to report any contacts with persons suspected of affiliation with a foreign intelligence agency as well as any gifts she received from foreign sources over a certain amount.

Despite such a requirement, Claiborne failed to report repeated contacts with two agents of the People’s Republic of China Intelligence Service, even though these agents provided tens of thousands of dollars in gifts and benefits to Claiborne and her family over five years.  The gifts and benefits included cash wired to Claiborne’s USAA account, Chinese New Year’s gifts, international travel and vacations, tuition at a Chinese fashion school, a fully furnished apartment, a monthly stipend and numerous cash payments.  Some of these gifts and benefits were provided directly to Claiborne, while others were provided to a close family member of Claiborne’s.

In exchange for these gifts and benefits, as stated in the plea documents, Claiborne provided copies of internal documents from the State Department on topics ranging from U.S. economic strategies to visits by dignitaries between the two countries.

Claiborne noted in her journal that she could “Generate 20k in 1 year” working with one of the PRC agents.  That same agent at one point tasked her with providing internal U.S. Government analyses on a U.S.-Sino Strategic Economic Dialogue that had just concluded.

Claiborne, who confided to a co-conspirator that the PRC agents were “spies,” willfully misled State Department background investigators and FBI investigators about her contacts with those agents, the plea documents state.  After the State Department and FBI investigators contacted her, Claiborne also instructed her co-conspirators to delete evidence connecting her to the PRC agents.  She was arrested on March 28, 2017, following a law enforcement investigation.

Judge Moss scheduled sentencing for July 9, 2019.  Claiborne, of Washington, D.C., was ordered detained pending sentencing, but will self-surrender for said detention on June 5, 2019.  The statutory maximum penalty for a person convicted of conspiracy to defraud the United States is five years in prison.  The maximum statutory sentences are prescribed by Congress and are provided here for informational purposes.  The sentencing of the defendant will be determined by the court after considering the advisory Sentencing Guidelines and other statutory factors.

The FBI’s Washington Field Office is leading the investigation into this matter.  The case was prosecuted by Thomas A. Gillice and investigated by John L. Hill, both Assistant U.S. Attorneys in the U.S. Attorney’s Office for the District of Columbia, and Deputy Chief Julie A. Edelstein and Trial Attorney Evan N. Turgeon of the National Security Division’s Counterintelligence and Export Control Section.

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Former U.S. Diplomat William Patrick Syring Convicted of Threatening Employees of the Arab American Institute

This is a follow-up to an item we posted in March 2018 (Ex-FSO William Syring Charged With Hate Crime and Threats to Arab American Institute Employees).  On February 21, 2018 USDOJ indicted former foreign service officer William Patrick Syring for hate crime and threatening employees of the Arab American Institute. Syring was previously charged in 2006 for similar threats in four emails and three voicemails. He retired from the State Department in July 2007 and he pleaded guilty in that previous case in June 2008.

The 2018 indictment alleged he sent 350 e-mails from March 2012 to January 2018.

On May 9, 2019, USDOJ announced Syring’s conviction:

William Patrick Syring, 61, of Arlington, Virginia, was convicted today of threatening employees of the Arab American Institute (AAI), because of their race and national origin, threatening AAI employees because of their efforts to encourage Arab Americans to participate in political and civic life in the United States, and transmitting threats to AAI employees in interstate commerce. Syring was convicted on all 14 counts in the indictment.

“Threats aimed at individuals because of their race and national origin have no place in our society and violate federal civil rights laws,” said Assistant Attorney General Eric Dreiband. “The Department of Justice will continue to hold criminals accountable who commit such acts of hate so that all individuals in this country can engage in civic life and political discourse.”

Evidence presented at trial established that from 2012 to 2017, Syring sent over 700 emails to AAI employees, culminating in five death threats in 2017. According to court documents, Syring previously pleaded guilty in 2008 to sending threatening emails to AAI employees. Evidence presented at trial showed that Syring used nearly identical language that he admitted were threats in 2008 as he did in 2017.

According to testimony in court, AAI employees were frightened of Syring, because he had sent them death threats in the past and continued to do so over a decade later. Additionally, according to witness testimony, many AAI employees lived in fear that Syring would follow through his threats and physically harm them. They further testified to the toll it took on them personally and their families and loved ones.

Sentencing is set for Aug. 9. The maximum penalties for the convictions is 42 years of imprisonment.

The case was investigated by the FBI Washington Field Office and is being prosecuted by Civil Rights Division Senior Legal Counsel Mark Blumberg and Trial Attorney Nick Reddick.

 

Visa Refusals Under INA §212(a)(4) For “Public Charge” Spiked in FY2018

In an April 24, 2019 meeting between the the Department of State and  the American Immigration Lawyers Association (AILA), the group asked the State Department/s Consular Affairs bureau about the public charge refusals for visa applicants.

AILA: Based on data provided by the Department of State, it appears that there were four times as many §212(a)(4) refusals in 2018 as compared to 2017. However, approximately the same proportion of initial refusals were overcome in both years. Thus, it appears that the total number of applicants unable to overcome the initial refusal rose significantly in 2018. Please confirm: a. Aside from guidance provided in the FAM, has State issued new or additional guidance in 2018 concerning how consular officers should evaluate eligibility under §212(a)(4)?

DOS: State hosted a series of webinars in 2018 and 2019 for consular officers reviewing the update to public charge eligibility, but other than the FAM update in 2018, there has been no additional formal guidance released on how to evaluate eligibility under §212(a)(4). b.

Visa applicants need to satisfy this provision of law by demonstrating proof of adequate financial support in the United States. A visa refusal, or ineligibility, under section 212(a)(4) of the INA means that the consular officer determined that the applicant is  likely to become a public charge in the United States. Public charge means that the consular officer determined that the applicant is  likely to become primarily dependent on the U.S. government for your existence and financial support in the United States. Most immigrant visa applicants are required to submit an Affidavit of Support (Form I-864, I-864A, I-864W, or I-864EZ, as applicable) from the U.S. sponsors who filed petitions for them. Some categories of immigrant visa applicants are not required to have Affidavits of Support. These are categories where no U.S. citizen or lawful permanent resident relative filed a petition on your behalf, including most employment-based immigrants and diversity visa (DV) applicants.

Below are the number of visa refusals under the public charge grounds for FY2017 and FY2018:

click on image to see larger view

click on image to see larger view

 

 

In January 2018, the Department released an unclassified cable 18 STATE 942 January 4, 2018 with an Update to 9 FAM 302.8 Public Charge – INA 212(A)(4): Excerpt below with the relevant section.

3. INA 212(a)(4)(B) continues to provide that officers must take into account the totality of the alien’s circumstances at the time of visa application, including, at a minimum: (a) age, (b) health, (c) family status, (d) assets, resources, financial status, and (e) education and skills. As revised, 9 FAM 302.8-2(B)(2) now includes detailed guidance to help officers assess these statutory factors when considering the totality of the applicant’s circumstances. For instance, 9 FAM 302.8-2(B)(2)(f)(1)(b)(i) provides that an officer may consider “past or current receipt of public assistance of any type” in determining whether an applicant is likely to become a public charge, although officers must make a determination based on the present circumstances. Consequently, an applicant’s current receipt of public assistance may not raise significant future concerns, based on the totality of circumstances. For example, if the applicant just completed an educational degree and received a credible job offer, the applicant’s education and skills might provide a sufficient basis to find that the applicant overcomes any public charge ineligibility concerns in spite of current lack of assets. Alternatively, an applicant’s past receipt of public assistance could be very significant: for example, if the applicant’s spouse was the family’s primary income earner, but recently died. In this case, the applicant’s recent change in family status and likely change in financial status would weigh heavily in considering the totality of the circumstances.

4. Additionally, 9 FAM 302.8-2(B)(3), paragraph b, as revised provides that a “properly filed and sufficient, non-fraudulent” Affidavit of Support by itself may not satisfy the INA 212(a)(4) public charge requirement. The Affidavit of Support requirement at INA 213A and the public charge ineligibility at INA 212(a)(4) are distinct requirements which, where both are applicable, must both be satisfied. Accordingly, a properly filed and sufficient Affidavit of Support is essential, but does not preclude denial on public charge grounds. Officers should consider such affidavits as one factor in the totality of the applicant’s circumstances, and, may find the applicant is likely to become a public charge if, for example, the applicant is in very poor health, is unable to work, and is likely to incur significant medical costs. Similarly, if an applicant does not clearly overcome public charge concerns but could with a joint sponsor, then a consular officer’s evaluation of the likelihood the joint sponsor would voluntarily meet his or her financial obligations toward the applicant becomes vital to the adjudication. See 9 FAM 302.8- 2(B)(3)(b)(1)(b). 5. The updated guidance at 9 FAM 302.8 is effective immediately.

 

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EEOC Sanctions USAID For Failing to Conduct Thorough Investigation in Disability and Age Discrimination Case

 

Via The Digest of Equal Employment Opportunity Law | Volume 1Fiscal Year 2019

Commission Sanctioned Agency for Failing to Conduct Thorough Investigation & Found Evidence Would Have Established Discrimination. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the basis of disability and age when it terminated her contract employment. The Agency conceded, and the record supported a finding that Complainant established a prima facie case of discrimination, and the Commission found that the Agency articulated a legitimate, nondiscriminatory reason for the decision to terminate Complainant, that is its realignment of her office due to budgetary constraints. The Commission noted that while the EEO Investigator was thorough and pursued affidavits from both Complainant’s supervisor and the Assistant Administrator of her office, the Investigator only obtained a statement from the supervisor. The Assistant Administrator had moved to another agency and informed the Investigator, by email, that she would not cooperate with the investigation, did not supervise Complainant, and did not believe the questions posed by the Investigator were pertinent or applicable to her. The Commission stated that the Agency did not show good cause for its failure to engage in further efforts to obtain the Assistant Administrator’s affidavit. In addition, there was ample indication in the record that her testimony constituted highly relevant evidence, including a note by the EEO Counselor that the Assistant Administrator confirmed she made comments about Complainant’s health in the context of Complainant’s termination.

Therefore, the Commission concluded that the imposition of sanctions was warranted for the Agency’s failure to obtain testimony from the Assistant Administrator. While the Assistant Administrator moved to another federal agency, as a federal employee she retained the duty to respond to an EEO investigation, and the Agency provided no indication that it took any steps to obtain her cooperation. The Commission presumed that had the Assistant Administrator submitted an affidavit, she would have admitted she was directly involved in the decision to terminate Complainant’s contract, and that Complainant’s disability played a significant role in that decision. The Agency was ordered, among other things, to require Complainant’s contracting employer to reinstate her to her former position if possible or pay her one year of front pay if there was no position to which she could be reinstated; pay Complainant appropriate back pay; and investigate her claim for compensatory damages. Aileen C. v. Agency for Int’l Dev, EEOC Appeal No. 0120170399 (Sept. 18, 2018).

According to the EEOC, sanctions serve a dual purpose: 1) they aim to deter the underlying conduct of the non-complying party and prevent similar misconduct in the future, and 2) they are corrective and provide equitable remedies to the opposing party. Given these dual purposes, sanctions must be tailored to each situation by applying the least severe sanction necessary to respond to a party’s failure to show good cause for its actions and to equitably remedy the opposing party.

Several factors are reportedly considered in “tailoring” a sanction and determining if a particular sanction is warranted:
(1) the extent and nature of the non-compliance, and the justification presented by the non-complying party;
(2) the prejudicial effect of the non-compliance on the opposing party;
(3) the consequences resulting from the delay in justice; and
(4) the effect on the integrity of the EEO process.

The EEOC’s sanctions in this case  include reinstatement, back pay, front pay, compensatory damages, EEO site visit, and coverage of attorney’s fees and costs.

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Snapshot: Comparative Look at @StateDept Staffing 2008 – 2018

Via state.gov:

(click image above for larger view)

 

FSGB Annual Report 2018: Judicial Actions Involving Board Rulings

 

The following is excerpted from the Foreign Service Grievance Board Annual Report 2018. This is a good time to remind folks that while names/posts and identifying details are typically redacted from the Record of Proceedings (ROPs) routinely posted in the publicly available website fsgb.gov, once the case is filed in federal court, the records are usually publicly accessible and are unredacted (unless the case is sealed).

As described in last year’s report, USAID OIG had recommended that the grievant in FSGB Case No. 2012-057 be separated for cause. After two hearings, the Board approved the agency’s decision. The grievant appealed to the U.S. District Court for the District of Columbia. In a decision issued October 12, 2018, the court upheld the Board’s decision on cross-motions for summary judgment. The grievant has appealed to the U.S. Court of Appeals for the D.C. Circuit, challenging the District Court’s and Board’s construction of section 7(b) of the IG Act, which protects the confidentiality of employee informants.

In FSGB Case No. 2014-018, the grievant had requested a waiver of collection of a substantial overpayment of her deceased mother’s survivor’s annuity. The Department contended that she was not entitled to consideration of a waiver because the overpayment was made to her mother’s estate; under Department regulations, estates are not entitled to waivers. The Board concurred and grievant appealed. In a decision issued January 19, 2018, the D.C. district court found that the regulation denying waivers to estates was valid, but that the FSGB had erred in determining that the overpayments were made to the mother’s estate rather than to grievant as an individual. The court remanded the case for the Department and the Board to decide the request for the waiver on its merits. The waiver request is currently pending with the Department.

The grievant in FSGB Case No. 2015-016 filed a complaint in the U.S. District Court for the District of Columbia in 2017 against the Department and his former rater and reviewer requesting monetary damages related to the Board’s denial of his grievance. He had contested two EERs and a low ranking. The district court dismissed the complaint as untimely in a decision issued March 30, 2018. The U.S. Court of Appeals for the District of Columbia Circuit affirmed that decision on December 28, 2018.

The grievant in FSGB Case No. 2013-005 contended that he was deprived of certain benefits, such as promotion consideration, during a five-year assignment to an international organization. The Department found him ineligible for the benefits because his assignment to the organization was effected through a “separation and transfer” agreement, rather than a “detail.” The Board affirmed the Department’s decision and the United States District Court for the District of Colombia upheld that decision on appeal in a decision issued in 2016. The grievant had also appealed the Board’s decision in a second, related, case, FSGB Case No 2014-024, in which he had claimed certain benefits based upon his separation and transfer and subsequent reemployment with the Department. The Board dismissed his second grievance on the grounds of claims preclusion. In a decision issued March 14, 2018, the district court concluded that the Board’s decision was neither arbitrary and capricious nor contrary to law and dismissed his claims. The grievant appealed both decisions to the United States Court of Appeals for the District of Columbia Circuit, and that matter remains pending.

The grievant in FSGB Case No. 2017-014 was denied tenure and scheduled for separation from the Foreign Service. Consequently, the Department ordered her to leave her overseas post and assigned her to a position in Washington, D.C. The grievant filed a grievance with the Department challenging her transfer on several bases. The Department denied the grievance, and the grievant appealed to the Board. The Board denied all of grievant’s claims. It further found that, since no statute or regulation had been violated, it lacked jurisdiction to overturn an assignment decision. The grievant appealed the decision to the U.S. District Court for the District of the Virgin Islands, St. Croix Division. In a decision issued September 24, 2018, the court affirmed the Board’s decision.

Decisions were issued this year in two other cases filed by the same grievant, stemming from the same sets of circumstances but not involving appeals of Department or Board grievances. The grievant filed a case under the Equal Pay Act of 1963 in the U.S. Court of Federal Claims alleging gender-based discrimination in pay and benefits. She claimed that the Department discriminated against her by paying her less and providing her with fewer benefits than a similarly-situated male employee. The court initially dismissed the case, finding that it lacked jurisdiction because the same appeal was pending in another court at the time she filed. However, that decision was overturned by the circuit court and the case was remanded to the Court of Claims. The grievant also filed two identical complaints in the U.S. District Court for the District of the Virgin Islands, St. Croix Division, alleging discrimination and retaliation by the Department under the Age Discrimination in Employment Act. In both cases, the court dismissed all but one of the claims. The grievant also filed a complaint in the U.S. District Court for the District of Columbia alleging nearly identical discrimination and retaliation by the Department under Title VII of the Civil Rights Act of 1964. Therefore, the U.S. District Court for the District of Columbia has stayed its proceedings pending a decision in the U.S. District Court for the District of the Virgin Islands case.

An appeal of the Board’s 2017 decision by the State Department and USAID/OIG in another long-running case remains pending in the D.C. District Court following briefing of crossmotions for summary judgment in Civil Action No. 18-cv-41 (KBJ). As described in previous annual reports, the grievant in FSGB Case No. 2013-031 contested the decision to calculate his retirement annuity based on the application of a pay cap on his special differential pay that had not been applied when his salary was paid. In 2014, the Board initially upheld the agency’s decision. On grievant’s appeal, the district court in Civil Action No. 14-cv-1492 (KBJ) vacated the Board’s decision and remanded the case to the Board for further review. On remand, the Board in FSGB Case No. 2013-031R and No. 2016-030 issued a decision granting the grievant calculation and payment of his annuity that he sought. The Board denied the Department’s request for reconsideration of that decision. The Department and USAID/OIG jointly appealed the Board’s decision on remand to the district court in Civil Action No. 18-cv-41 (KBJ).

The 2015 Annual Report reported that the grievant filed an appeal of the Board’s decision in FSGB Case No. 2014-003 in Federal District Court, District of Colombia, claiming that the Department violated the Americans with Disabilities Act and Rehabilitation Act when it separated her. That appeal is still pending.

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EEOC Finds @StateDept’s Denial of Reasonable Accommodation and Disability Discrimination Unlawful

 

Via The Digest of Equal Employment Opportunity Law | Volume 1Fiscal Year 2019

The federal government, including the Agency, is charged with being a “model employer” of individuals with disabilities. See 29 C.F.R.  1614.203(a). Inherent in this duty is an obligation to break down artificial barriers which preclude individuals with disabilities from participating on an equal footing in the work force. Accordingly, the Rehabilitation Act requires federal agencies to make various types of “”reasonable accommodation” for federal employees who have disabilities. This requirement helps ensure that such federal employees will be able to perform the essential functions of their positions, and enjoy all the benefits and privileges of employment enjoyed by non-disabled employees. See Appendix to Part 1630 – Interpretive Guidance on Title I of the Americans with Disabilities Act (“Appendix to Part 1630″), at Section 1630.2(o): Reasonable Accommodation.” (via)

Via ssa.gov

Denial of Reasonable Accommodation & Disability Discrimination Found.

Complainant filed an EEO complaint alleging, among other things, that the Agency denied him reasonable accommodation, and discriminated against him based on his disability when it rated him “unsuccessful” on his performance evaluation. On appeal, the Commission found that the Agency failed to show that providing any of Complainant’s many requested reasonable accommodations would cause an undue hardship. The Agency’s broad rejections did not reflect the specificity required of an individualized assessment, nor a consideration of the factors comprising an undue hardship. Further, the Commission noted its concern with the Agency’s lack of participation in the interactive process. The Agency not only rejected Complainant’s numerous suggestions, but it failed to suggest any alternatives and blamed Complainant for the alleged breakdown in the interactive process. The Commission further found that Complainant’s “unsuccessful” rating was also discriminatory. While the record contained evidence of Complainant’s ongoing performance problems throughout the year, including numerous emails from his supervisor, the Commission observed that some of the emails followed Complainant’s requests for accommodation. Moreover, the major life activities that were impacted by Complainant’s PTSD, for which he was seeking a reasonable accommodation, were the same skills identified by management as needing improvement (i.e. focus, concentration, and avoiding distractions). Among other things, the Agency was ordered to immediately take all steps necessary in accordance with Commission regulations to provide Complainant with reasonable accommodation; to rescind and expunge the unsuccessful rating; and to determine Complainant’s entitlement to compensatory damages. The Commission affirmed the Agency’s finding that Complainant failed to prove his claim of harassment. Wilmer M. v. Dep’t of State, EEOC Appeal No. 0120160352 (Feb. 22, 2018).

Denial of Reasonable Accommodation & Reprisal Discrimination Found.

Complainant, who had a mixed connective tissue disease, alleged she was denied a reasonable accommodation, and subjected to reprisal when the Agency included certain elements in her work commitments. Complainant requested to telework an additional day each week due to her extended commute and per her doctor’s recommendation. However, Complainant was placed on a new team with “face-to-face” and “physically available” commitments. On appeal, the Commission found that Complainant could perform essential function of her job with a reasonable accommodation of telecommuting. Complainant identified a reasonable accommodation of telecommuting two days a week and fully complied with Agency procedures. Rather than provide the requested accommodation, however, the Agency denied Complainant’s request, and only months later granted situational telework. The Commission found that this was ineffective, because Complainant’s condition merited consistent telework to address her symptoms and to prevent exacerbation of her condition. While Agency managers indicated that there was not sufficient work for Complainant to do while teleworking, no basis was shown for this assertion. The Commission cited significant issues with the manner in which the Agency engaged in the interactive process, including continuing to require further medical documentation despite the fact that the Agency already had the information in its possession. The Commission concluded that the Agency did not make a good faith effort to provide Complainant with reasonable accommodation. The Commission also found that Complainant was subjected to reprisal when her work commitments were revised to include terms like “face to face” and “physically available.” The Commission noted the close temporal proximity between Complainant’s request for reasonable accommodation and the change in her work commitments, and stated that Complainant was the only employee impacted by the reassignment whose new commitments evinced a clear disapproval of telework. The Agency was ordered, among other things, to provide Complainant with the option of teleworking two days per week if she still occupied her position or a similar position, investigate Complainant’s claim for damages, and provide appropriate training for the responsible management officials. Alejandrina L. v. Dep’t of State, EEOC Appeal No. 0120152145 (Nov. 16, 2017).

 

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Is this how you keep a potentially embarrassing case away from public eyes?

 

Via FSGB 2018 Annual Report:

In FSGB Case No. 2018-001, an FS-01 appealed a 3-day suspension on a charge of Conduct Unbecoming. The charge arose from allegations that he facilitated the inappropriate hiring of a former political appointee. Grievant contends that, although he was the hiring official, all of his actions were at the direction of senior bureau staff and in consultation with the bureau’s administrative staff. The case was settled and withdrawn.

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FSGB Case No. 2018-001: On March 1, 2018, the Foreign Service Grievance Board received a Notice of Withdrawal from grievant’s attorney, {Attorney’s Name}, stating as follows: “Grievant, {Grievant’s Name}, through counsel, {Attorney’s Name}, hereby withdraws his grievance appeal filed on January 3, 2018, with prejudice. The parties have settled their dispute.”  The Notice of Withdrawal has been entered in the record of proceedings, and the record is now closed.

We understand that because this case was settled and withdrawn there is no actual FSGB decision in the case; thus, there is no publicly available record of the case. Presumably State/HR/Grievance has the paper trail and the finer details, but for now, because the case was settled we won’t know who is the ex-political appointee, which bureau was involved, which senior bureau … er staffers were responsible, or the terms of the settlement.  One wonders if the State Department settled this case because it did not want the details in public view, or if grievant has the “receipts” that could get higher ups in a specific bureau in trouble?

via tumblr.com

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FSGB Case: Employee’s Mental Health Issues and Performance

 

Via FSGB Case No. 2016-043:

The Department denies that grievant’s 2013 EER is factually inaccurate, falsely prejudicial, or biased, and cites a series of interviews with her supervisors, subordinates, and colleagues to dispute her contentions about the unfairness and inaccuracy of the EER. In response to grievant’s allegation that she was inadequately counselled on the deficiencies described in her EER, the agency contends, based on statements from grievant’s rating officer, that she was in fact counselled, both formally and informally, during the rating period. With respect to grievant’s claim that she was bullied, ostracized, and treated unfairly by the Embassy community, which she alleges triggered her trauma symptoms, the Department provided input from the Ambassador, grievant’s rating officer, and the General Services officer, all of whom disputed grievant’s allegations.

In response to grievant’s claim that she suffered from then-undiagnosed mental health issues (including anxiety, depression and trauma symptoms), the Department counters with quotes from grievant’s rating officer who stated that “from the time REDACTED arrived at post, she appeared unhappy and talked of being stressed.” The rater recalled that some of her stress “appeared to be related to prior postings (including REDACTED, REDACTED, and REDACTED),” and said that “upon arrival she talked to me about how stressful she had found the 6 months of FSI [Foreign Service Institute] REDACTED language training, and told me she urgently needed a break.” The Department was not persuaded that grievant’s poor performance resulted from the medical condition with which grievant was diagnosed after she left REDACTED. The Department put less credence in the medical statement grievant provided from her post-REDACTED therapist, stating “grievant has not provided medical documentation substantiating her alleged diagnosis. Nor does grievant’s counselor provide such documentation; the counselor merely states that ‘I believe PTSD is the primary diagnosis.’”

FSGB BOARD:

In all grievances except those involving discipline, the grievant bears the burden of proving that her claims are meritorious.3 This case turns on whether the grievant’s EER is falsely prejudicial, and, whether any documented underperformance can be attributed to the grievant’s post-REDACTED diagnosis of mental health disorders. The Board notes that the record in this case is, unfortunately, sparse with respect to a diagnosis of grievant’s mental health issues. While the Department is correct in noting that grievant’s counselor noted only that “I believe that PTSD is the primary diagnosis,” the Department provides no opposing medical information whatsoever, relying solely on the observation of grievant’s Foreign Service colleagues in REDACTED.  Grievant’s licensed mental health counselor did in fact provide a detailed listing of grievant’s problems in REDACTED, and concluded that grievant suffered mental health disorders as a result thereof. We note that grievant’s counselor saw the grievant regularly over a period of more than a year. On balance, therefore, the Board is obliged to find grievant’s medical evidence preponderant. After careful examination of the ROP, the Board concludes that grievant’s 2013 EER cannot stand, because her performance during that period was likely influenced by her depression, anxiety, and trauma symptoms. We base our conclusion largely on the detailed statement submitted by grievant’s Licensed Professional Counselor (LPC), with whom grievant had at least 38 therapy sessions between April 2014 and August 2015, and to whom grievant was referred by a prior therapist who had diagnosed her with anxiety, depression, and trauma symptoms. In the Board’s view, this statement, written by a mental health professional who knows the grievant well, is entitled to more weight in the decision process than that of grievant’s rating and reviewing officers, or her colleagues at post. We also note that the Agency provided no contradictory medical opinion, or any information of a medical nature.

In her August 18, 2015, statement, grievant’s LPC states, in relevant parts:

She was referred to my center, the National Center for the Treatment of Phobias, Anxiety, and Depression in Washington DC by a previous therapist who had diagnosed her with anxiety, depression, and Trauma Symptoms. She also sees REDACTED , MD for medications at this center. I believe PTSD is the primary diagnosis and the depression and anxiety are symptoms of the PTSD. REDACTED described primitive and unsanitary living conditions that caused her to feel unsafe. She reported unsanitary water in her apartment, unsafe electrical problems, and other living conditions that prevented sleep, peace and support. While in the workplace, she felt she was targeted, bullied and marginalized. Because of the combination of insecurity in her home, insecurity in her workplace, and the stress of an extremely stressful foreign environment, began to suffer from PTSD symptoms. She became depressed and hopeless, developed panic attacks, difficulty sleeping, developed nightmares, and generalized anxiety.

It is my understanding that her evaluations from this period faulted her for having strained relations with her subordinates, program participants, and peers in Washington, as well as difficulty making contacts in the REDACTED media and discomfort speaking to media on the record. I did not observe REDACTED during this period, so I do not have an opinion on the accuracy of these criticisms, but, if true, each would in my opinion be related to the various symptoms of her previously-undiagnosed and untreated anxiety, depression and trauma symptoms. 

I do not believe a patient can work with very seasoned therapists or psychiatrists and hide character issues as described in the accusations towards REDACTED. However, I do believe that it would have been difficult, if not impossible, for REDACTED , while suffering the effects of PTSD, to maintain a high level of diplomacy, an ability to connect well with co-workers, and to utilize PR skills to connect at work well with the media.

Nightmares, panic attacks, depression, extreme fear, feelings of hopelessness and helplessness and not feeling respected or supported would prevent most people from working at a level of excellence which, to my knowledge, had been true for REDACTED before her REDACTED posting. I believe REDACTED ’s behavior while in REDACTED was mischaracterized at most and misunderstood at the least. This is my opinion based on working with many patients who suffer from trauma-related symptoms. 

We find the foregoing LPC statement to be a detailed professional observation, based on relatively long-term (at least 16 months’) observation of grievant, and thus accord it more weight than we do the statements offered by the Department from non-medical providers (her rater, the General Services officer (GSO), the Ambassador, and grievant’s subordinates). While the statement does not contain a definite diagnosis of grievant’s symptoms, we note it is from a licensed medical professional, and is countered by the Department only with comments from non-medical co-workers and colleagues.

THE BOARD’S DECISION:

Grievant has shown by preponderant evidence that she suffered from the effects of then undiagnosed mental health conditions including anxiety, depression, and potential Post Traumatic Stress Disorder (PTSD) during her tour in REDACTED and accordingly, her Employee Evaluation Report (EER) for 2013 must be expunged and replaced in her Official Personnel File (OPF) by a standard gap memorandum. Grievant has shown that she suffered from these conditions and that they affected her performance in ways that contributed to the negative statements in her EER. If she is not promoted by reconstituted Selection Boards for the years 2014 -2017, her Time in Class shall be extended by one year.

One more: “as a general matter, an EER is inherently false, even though it accurately describes an employee’s performance, if that poor performance was the result of the employee’s serious illness.”