Special Envoy to Haiti Daniel Foote Resigns in Protest, @StateDept & Friends Mount Concerted Attacks

 

Back in July when the State Department announced the appointment of Ambassador Foote as Special Envoy to Haiti, it said, “Special Envoy Foote brings extensive diplomatic experience to this role – including as Deputy Chief of Mission in Haiti and as the U.S. Ambassador to Zambia. The Department congratulates Special Envoy Foote as he takes on his new role and thanks him for his continued service to his country.”
Today, as his resignation in protest over Haiti policy became public, the State Department as well as the Biden White House are mounting a concerted effort to smack him down.  The spoxes in Foggy Bottom and 1600 Pennsylvania Avenue both had something to say; it was not to thank him for his brief service as special envoy.
State Department spox Ned Price in his statement said …”not all ideas are good ideas.” The WH spox Jen Psaki said that Ambassador  Foote’s views were put forward, and they were were valued, they were heard …”. Also that “Special Envoy Foote had ample opportunity to raise concerns about migration … He never once did so.”
The State Department’s number #2 official, Deputy Secretary of State Wendy Sherman took time out from her busy schedule to give an exclusive interview to @McClatchy about this resignation – “You know, one of the ideas that Mr. Foote had was to send the U.S. military back to Haiti,” Sherman said. “It just was a bad idea.” she said. Then she said what the State Dept spox already said in his statement: “Some of those proposals were harmful to our commitment to the promotion of democracy….”. For him to say the proposals were ignored were, I’m sad to say, simply false,” Sherman said. She did say, you know, that she’s sad to say that.
Also Secretary Blinken being Tony and nice just said “I really understand the passion that comes with this.”
So then according to one reporter, an unnamed senior Biden Administration official also claimed that Ambassador Foote has a “toxic personality” & that Foote would often “shout people down and cut people off.” Toxic and shouty, and cut people off, blah, blah, blah!  And this is all coming out now after he resigned in protest? When are they going to tell us he also kicks his dog?
See, here’s the thing. They’re not just saying his ideas were valued and heard but oh, they were also just bad. But hey, did you know he wanted to send troops back to Haiti? Isn’t that also bad? And in case that doesn’t work, some official told a reporter, that the guy who quit has a toxic personality and was shouty, anyway.
This appears to be the first protest resignation under the Biden Administration. And you can see the all hands effort here. It is likely that 1) they recognized that the Foote letter would  resonate with a lot of people, 2) they’re looking at the domestic component and potential political fallout and 3) this serves as a warning for future dissenters on policy. Had Ambassador Foote just resigned quietly to spend more time with his family, State may have given him their “One Team” Award.
The Miami Herald says Ambassador Foote did not respond to requests for comment Thursday. Which makes the parade of named and unnamed characters talking about Foote’s resignation just stark by comparison.
Folks, he quit; he’s done. Why are y’all wasting time on the guy who already left the room?
Meanwhile, your Haiti policy is till a hot mess. Get to work, good grief!
Related posts:

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How soon before somebody needs to spend more time with the family?

 

Related: WaPo: Surprise, Panic and Fateful Choices, the Fall of Kabul

 

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Blinken Talks the Talk on Unexplained Health Incidents, Where’s the Walk? #HavanaSyndrome

 

During the August 18 State Department Press Briefing, a reporter asked about the Unexplained Health Incidents  (UHI) also known as the Havana Syndrome that was reported at the US Mission in Germany. Below is the exchange:

QUESTION: Can you – one non-Afghan question, please? I – thank you. I’m seeing reports that there are some cases of Havana – so-called Havana Syndrome in Berlin, at the embassy in Berlin. Can you speak to that? Are you aware of it? What is the State Department doing to protect its staff?

MR PRICE: So, I am – I have seen these reports, of course. This is something that we vigorously investigate, the so-called anomalous health incidents or unexplained health incidents in coordination with our partners across the government. Any employees who have reported a possible unexplained health incident, they have received immediate and appropriate attention and care.

These health incidents I can tell you have been a top priority for Secretary Blinken. I think I mentioned this before, but he proactively requested two sets of briefings during the transition. This was one of them, because even before he was Secretary of State, he wanted to know precisely what we knew, what this department knew at the time, and what we were doing to respond to this.

He has set clear goals for what we call here the Health Incident Response Task Force to – number one, to strengthen the communication with our workforce, of course, to provide care for affected employees and their family members, and to do what we can to protect against these incidents working together with the interagency, and, of course, to find the cause of what has been afflicting these members of our team. He noted to the workforce – I guess it was a couple weeks ago now – that there is nothing that we take more seriously than the health of our workforce.

And that’s why there is a major effort underway in this department, there is a major effort underway across the interagency to determine the cause and to, of course, provide the level of care, the level of communication, the level of feedback that our employees need and deserve. This is a priority. Ambassador Spratlen, as you know, the – Secretary Blinken named her as the head of the task force. She works very closely with the Deputy Secretary for Management and Resources Brian McKeon on this. They are working very closely in turn with Secretary Blinken. We’ll continue to do that. We’ll continue to work with our interagency partners to ensure that our employees, both those who have been affected by this have what they need, and those who are serving around the world, that we’re doing everything we can to ensure their safety.

***

NBC News subsequently reported that at least two U.S. diplomats will be medevaced from Vietnam due to UHI which occurred on the weekend ahead of Vice President Kamala Harris’ visit.
The State Department spox has previously mentioned on March 12, and again on July 19, that this is a top priority for Secretary Blinken and that the secretary has requested briefings regarding these incidents even during the transition.
One employee who was injured in these unexplained health incidents recently told this blog: “He has utterly failed in basic leadership 101 on this issue.”
The employee was referring to Secretary Blinken.
On August 2, a CNN headline blares “Havana Syndrome stokes fear and frustration among diplomats over response from State Department.

…frustration is rising among rank-and-file staffers and diplomats over what multiple officials say has been a tepid response by the department. Of particular concern is a lack of information from leadership, including what some say has been a hands-off approach from Secretary of State Tony Blinken who has yet to meet with any of the State Department victims despite saying he would prioritize the incidents.

On August 5, Secretary Blinken sent a memo to State Department employees saying in part “What I can tell you is that this is a top priority for me, the State Department, and leaders across the U.S. government.” CNN’s Natasha Bertrand tweeted that memo the same day.
Obviously, the Blinken memo to the troops was not a coincidence but a reaction to the CNN report three days earlier.
So the top leadership in Foggy Bottom is sensitive to media splashes, who knew? But managing perception can only go so far. How many more times can Secretary Blinken claim this as a “top priority” for him without ever meeting the victims of these incidents? Or addressing his employees directly in a town hall, for that matter? August 26 was the 6-month anniversary of his assumption as secretary of state; he’s no longer in the transition phase.
Folks might ask, but does Secretary Blinken really have to meet these people though? Or does he really need to meet anxious employees shipping out overseas where they and their loves ones could potentially be subjected to similar attacks? Why can’t Deputy Secretary Brian McKeon just talk to these folks? Mr. McKeon, after all, is the Deputy Secretary for Management and Resources.
Yes, Virginia. Secretary Blinken really do need to meet with his people and we’ll tell you why. Because Brian McKeon is not the Secretary of State. That’s why.
It is alleged also that the State Department is “withholding so much unclassified info” related to these attacks that often employees only hear things from the media; they aren’t hearing relevant information directly from State.
But .. but .. there’s Afghanistan, and Haiti, and Russia, and Ukraine, Eswatini, China …. on and on and on …. it never stops.
If Secretary Blinken is waiting for a break from foreign headaches and chaos before dealing with these serious concerns within the ranks, his staff could be waiting forever, y’all.
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WaPo: Surprise, Panic and Fateful Choices, the Fall of Kabul

 

Tuesday before the fall of Kabul, the U.S. Senate had just confirmed the nominations of Consular Affairs Assistant Secretary Rena Bitter and Diplomatic Security Assistant Secretary Gentry Smith. There is no Senate confirmed official for the Bureau of Administration, the agency’s logistics arm. There is no Senate confirmed official for the Under Secretary for Management, the umbrella office that provides leadership to 10 bureaus; a post currently encumbered by an Acting/M.
On August 18, three days after the fall of Kabul, the State Department announced that President Biden’s “M” nominee will be sent to Kabul (@StateDept Sends M Nominee John Bass to Kabul to Leverage “Logistics Experience” in Evacuation). In the coming days, there will likely be a louder push to examine the evacuation from Kabul. Some will be politically-motivated; we’re already seeing shades of Benghazi in online rhetoric.  For people living in the rational  universe, it would still be important to understand what happened there, how it happened, and why.
WaPo has a ‘must-read’ account on the fall of Kabul.  We would like to see the tic-toc inside Foggy Bottom during these fateful days. As P/Nuland was frantically calling foreign ministers to ask them to help with evacuation efforts, what was happening elsewhere?

On the Friday afternoon before Kabul fell, the White House was starting to empty out, as many of the senior staff prepared to take their first vacations of Biden’s young presidency. Earlier in the day, Biden had arrived at Camp David, and Secretary of State Antony Blinken was already in the Hamptons.

But by Saturday, the fall of Mazar-e Sharif — site of furious battles between pro and anti-Taliban forces in the 1990s — convinced U.S. officials that they needed to scramble. How quickly was a subject of dispute between the Pentagon and State Department.

In a conference call with Biden and his top security aides that day, Defense Secretary Lloyd Austin called for the immediate relocation of all U.S. Embassy personnel to the Kabul airport, according to a U.S. official familiar with the call.

Wilson’s embassy colleagues had been racing to destroy classified documents and equipment in the compound since Friday. An internal memo, obtained by The Washington Post, implored staff to destroy sensitive materials using incinerators, disintegrators and “burn bins.” The directive also called for the destruction of “American flags, or items which could be misused in propaganda efforts.”

Wilson said U.S. personnel needed more time to complete their work. But Austin insisted time had run out, the official said.
[…]
Within the palace, too, the illusion of calm was being punctured. Around midday, much of the staff had been dismissed for lunch. While they were gone, according to officials, a top adviser informed the president that militants had entered the palace and were going room to room looking for him.

That does not appear to have been true. The Taliban had announced that while its fighters were at the edges of Kabul, having entered through the city’s main checkpoints after security forces withdrew, it did not intend to take over violently. There was an agreement in place for a peaceful transition, and the group intended to honor it.

Yet that wasn’t the message that was being delivered to Ghani. The president was told by his closest aides that he needed to get out — fast.
[…]
For the United States, the scope of defeat was total — and was vividly rendered as helicopters evacuated embassy personnel to the airport. Before the American flag was lowered one last time, diplomats engaged in a frenzy of destruction, burning documents and smashing sensitive equipment.

“It was extremely loud,” said a senior U.S. official. “There were controlled fires, the shredding of classified paper documents, and a constant pounding noise from the destruction of hard drives and weapons.”
[…]
At the State Department, top brass, including Wendy Sherman, Blinken’s deputy, and Victoria Nuland, undersecretary of state for political affairs, were frantically calling foreign ministers to ask them to help with evacuation efforts and to coordinate a statement signed by 114 countries urging the Taliban to allow safe passage for evacuees. This, they realized, would be a historic evacuation effort.

A Third of U.S. Diplomats Eyeing the Exits? An FSO Responds

 

Below is a piece by Zed Tarar, a career member of the U.S. Foreign Service currently serving in London. This was published on Medium with the following Disclaimer: “Zed Tarar is a career U.S. diplomat. The views expressed here are his own and do not reflect those of his employer or the U.S. government.”
Excerpt below from Analysis | A third of U.S. diplomats are eyeing the exits:
….While the headaches of finding fulfilling postings with progressively greater responsibility are well understood and documented, the knock-on effects are less discussed. When employees feel that rewards are unlinked to performance and recognition processes lack fairness and transparency, they leave, according to research. Here again the Viewpoint Survey paints a striking picture, stretching back to at least 2010 and remaining consistent: only two in five State employees believe promotions are based on merit. Such a staggering loss of confidence in the most basic talent management principle should give senior leaders pause. Yet, the diplomatic service maintains the same promotion and assignment system designed in the early 1980s, save for a few cosmetic changes and a move to managing paperwork on the cloud. Career diplomats will be quick to clarify that the issue is fairness and transparency. Knowing a better-suited colleague is headed to the job you wanted in Senegal is welcome; what “crushes morale” is the apparent randomness of postings and seeing poor performers given increasing responsibility and high-profile assignments.
[…]
If the 2,800 survey respondents in the retention study are to be believed, we may finally have a measurable negative consequence. Should up to a third of serving diplomats leave public service in the next few years, it may finally spur senior leadership within State to implement the organizational reforms needed. As it stands, the study’s findings seems to be attracting little attention from the top echelons of the department: a recent piece in Politico notes, “a senior State Department official responded that frustrations about promotions notwithstanding, only about 3 percent of these officials actually end up leaving the department annually.” In other words: how bad can it really be if people are choosing to stay?
Read more below:

FSGB: A Separation For Cause Case That Will Make You Weep

The FSGB Annual Report for 2020 includes a brief summary of a separation for cause case:
“In FSGB Case No. 2019-034, the Board found that the agency did not establish cause to separate the charged employee from the Foreign Service because the Deciding Official did not consider evidence of personality problems or more serious mental issues as a mitigating circumstance in determining whether separation was appropriate, as required by the Douglas Factors.2 The employee in the case was charged with improper personal conduct with a pattern of unprofessional and inappropriate conduct toward colleagues. The agency’s Bureau of Medical Services determined that the charged employee exhibited behavior or symptoms that impaired his reliability, judgment, or trustworthiness which was reported to management in a report of security investigation. The Deciding Official did not take into consideration those findings when proposing separation. The agency filed a motion for reconsideration which was ultimately denied. The Board suggested that the Department consider whether the charged employee was eligible for disability retirement.”
Excerpts below from the Record of Proceeding (ROP) posted via FSGB (multiple files related to this case).
FSGB Case No. 2019-034/July 2, 2020:

Held – The Board found that the Department of State (the “Department” or “agency”) did not establish cause to separate the charged employee from the Foreign Service because the Deciding Official (“DO”) did not consider evidence of his personality problems as a mitigating circumstance. The Board was persuaded by evidence in the record that the agency should exercise its authority to initiate, as an alternative to separation, the option of a disability retirement, pursuant to 3 FAM 6164.3(a).

Case Summary – The Department charged the employee with Improper Personal Conduct based upon a pattern of unprofessional and inappropriate conduct toward colleagues, primarily hundreds of unwanted emails and text messages with sexual content. The Department’s Bureau of Medical Services (“MED”) had conducted a mental health evaluation of the charged employee and concluded that “to a reasonable degree of certainty,” the charged employee exhibited “behavior or symptoms (which may not rise to the level of formal diagnosis) of an emotional, mental or personality condition that may impair his reliability, judgment or trustworthiness.”

The DO determined that the charged employee committed the charged offenses and that there were no mitigating circumstances. In finding no mitigating circumstances, the DO attested in the separation hearing that she did not take into consideration either the charged employee’s emotional, mental or personality condition that MED identified or the charged employee’s emails to coworkers that included references to his communications with divine beings as well as references to his own possible mental illness. The DO notified the charged employee of her proposal to separate him from the Foreign Service and provided him the opportunity to reply in person or in writing. The DO recommended separating the charged employee to promote the efficiency of the Service. The charged employee did not respond in person or in writing to the DO’s notification of her proposal to separate him from the Service recommendation or participate in the separation hearing.

The Board found the Department did not establish cause to separate the charged employee because the DO did not consider the so-called Douglas Factor #11 on the agency’s checklist that relates to mitigating circumstances surrounding personality problems, and did not exercise the agency’s authority under 3 FAM 6164.3(a) to initiate a disability retirement on behalf of the charged employee as an alternative to disciplinary action.

Background via FSGB Case No. 2019-034R/September 24, 2020

Prior to the conduct that gave rise to the Department’s proposal to separate the charged  employee, he had 19 years of distinguished service.

In March 2015, the Department issued a Letter of Reprimand to the charged employee on  a charge of Improper Personal Conduct (“IPC”) for allegedly making “unwelcome comments of an inappropriate and sexual nature” to an intern at post. In January 2016, the charged employee was alleged to have engaged in sexual harassment. The Ambassador involuntarily curtailed the charged employee from an overseas post in February 2016. After his curtailment, the charged employee sent numerous personal emails to a former post colleague that she foundoffensive. Despite her request that he stop sending her messages, he continued to do so. Consequently, the former colleague filed a request for a protective order with a court and the request was granted.

The FSGB filing does not indicate what treatment resulted from MED’s evaluation.

— In January 2018, the DS Office REDACTED issued another ROI (involving different preliminary allegations), finding, inter alia, that the charged employee had demonstrated a predilection for self-aggrandizement, and had indicated his belief of hearing voices and instructions from God, the Devil, and the Virgin Mary.

— In October 2018, the charged employee’s security clearance was revoked.

— On March 21, 2019, the Director General of the Foreign Service and Director of the Bureau of Human Resources3 (the “DG”) notified the charged employee that the Department proposed to separate him for cause to promote the efficiency of the Service. The charged employee was charged with IPC based upon 87 specifications of unprofessional and inappropriate conduct and comments toward colleagues, primarily in emails and text messages with sexual content. The separation proposal was not based upon the charged employee’s loss of security clearance.

— Although the charged employee was offered an opportunity to provide an oral or written response to the DG’s March 21, 2019 proposal, he did not provide a response.

(Also see Secretary Mike Pompeo Swears-In New DGHR Carol Perez on March 15, 2019)

On June 20, 2019, the DG completed the so-called Douglas Factors Checklist, a compilation of aggravating and mitigating factors drawn from 3 FAM 4137 and from the decision of the Merit Systems Protection Board (the “MSPB”) in Douglas v. Veterans Administration, 5 MSPB 313 (1981). On that Checklist, the DG wrote “none” next to so-called Douglas Factor #11, “Mitigating circumstances surrounding the offense, such as unusual job tensions, personality problems . . . .”

(Also see  Snapshot: Douglas Factors)
(Also see 3 FAM 4138)

On August 18, 2019, the Department filed a Separation for Cause Proposal with the Board. The charged employee did not file a response to the proposal or participate in the hearing that the Board conducted by telephone on May 14, 2020. AFSA participated as amicus curiae.

The Board issued its Decision on July 2, 2020, finding that the Department had established by a preponderance of the evidence that the charged employee had engaged in the unprofessional and inappropriate conduct of which he was accused and that the charged employee’s conduct had a nexus to the efficiency of the Service. However, the Decision concluded that the Department had not established cause for separation of the charged employee when the DG did not comply with 3 FAM 4138 because she did not consider the Department’s version of Douglas Factor #11:

 Mitigating circumstances surrounding the offense, such as unusual job tensions, personality problems, harassment or bad faith, malice or provocation on the part of other(s) involved in the matter.

The Decision noted that the DG had written the word “none” next to Factor #11, yet in her testimony at the May 14, 2020 hearing, she opined that the charged employee “had abnormal behavior,” and that it was obvious “his behavior was not normal.”

[…]

In the instant case, the Department failed to establish cause for separation by a preponderance of the evidence because the Deciding Official (in this case the DG) had failed to consider a significant relevant factor, i.e., Douglas Factor #11 as embodied in the Department’s Douglas Factors Worksheet, which the Department applies in determining whether to propose separation of an employee or a disciplinary penalty.10
In a separate FSGB document: 2019-034 – 07-02-2020:

In her testimony at the May 14, 2020 hearing, however, when asked whether concerns were raised in her mind in relation to the DS decision to revoke the charged employee’s security clearance due to several factors, including psychological conditions, the DG opined that the charged employee “had abnormal behavior,” and that it was obvious “his behavior was not normal.” The DG added, however, that she did not consider personality problems as a mitigating circumstance for the charged employee because she is not a medical professional, thus not in a position to understand if he had a personality defect for “his entire life.” She pointed out that DS ROI #2 indicated that there were allegations that the charged employee had a recurring pattern of sexual harassment, beginning during his college years, but she had no evidence of that conduct in the record to consider. The DG emphasized that in cases of threats to employees in the workforce, it is DS that makes decisions about what they would like to do in terms of an employee’s ability to access agency facilities and information. She also stressed that she had no access to the Department’s Bureau of Medical Services (“MED”) Memorandum of Opinion concerning the charged employee to which DS referred in ROI

Diplomatic Security’s two Reports of Investigation (ROIs)

The Board found that two Reports of Investigation (“ROIs”) issued by the Department’s Bureau of Diplomatic Security (“DS”) contained sufficient information for the DG to deduce that the charged employee had, at least, personality problems and that the emails and text messages the charged employee sent to former colleagues, which formed the basis of the separation proposal, indicated that he had personality problems and possibly more serious mental impairment or illness. The Decision noted that Douglas Factor #11 required the DG to consider and weigh the charged employee’s apparent personality problems in determining the appropriate discipline.

The DG’s failure to consider personality problems as a mitigating factor was the basis for our conclusion that the Department had not established cause for separation.

Continue reading

EEOC: @StateDept Liable For Supervisor’s Harassment of Pregnant Subordinate at US Mission/UNVIE

Via EEOC: Cecille W. v. Dep’t of State, EEOC Appeal No. 2019001540 (Aug. 19, 2020).
Sex Discrimination & Sexual Harassment Found.  Complainant, an Assistant Public Affairs Officer, filed a formal complaint alleging that the Agency discriminated against her on the basis of sex (pregnancy) when her work responsibilities were altered; she received written performance counseling; and she was subjected to a hostile work environment, including receiving inappropriate comments and being excluded from meetings and emails.  On appeal, the Commission found that Complainant was subjected to discrimination and harassment as alleged.  The record showed that Complainant’s work duties were altered due to her pregnancy, and the Agency incorrectly concluded otherwise.  Complainant’s supervisor specifically stated that she could not supervise Complainant if Complainant was pregnant, and Complainant then ceased performing tasks that were under the supervisor’s purview.  The Agency also excluded Complainant from certain weekly meetings at the supervisor’s request.  The Agency conceded that Complainant was subjected to harassment based on sex that affected a term or condition of her employment.  The Commission found that the Agency was liable for the harassment.  The Commission noted that the Agency could not use an affirmative defense because Complainant’s changed work duties constituted a tangible employment action.  Furthermore, even if there were no tangible employment actions, the Agency failed to take prompt and effective action when it failed to fully remove the responsible management official from supervisory authority over Complainant.  The Agency was ordered, among other things, to investigate Complainant’s claim for compensatory damages, and reinstate Complainant’s assignments.  Cecille W. v. Dep’t of State, EEOC Appeal No. 2019001540 (Aug. 19, 2020).
This Assistant Public Affairs Officer’s EEO case was investigated by the State Department (that would be S/OCR).
“The Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination or harassment as alleged.”
BUT.
The EEOC found that the Complainant “has proven that she was discriminated against and subjected to a hostile work environment based on her sex as alleged.”
The Commission concluded that “Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein” and reversed the Agency’s final decision.
It also remanded the case to the State Department for further processing in accordance with its decision and remedial actions ordered to include among other things, complainant’s entitlement to compensatory damages, disciplinary actions against responsible management officials, and a requirement of “no less than eight (8) hours of appropriate in-person or interactive training to the management officials involved in this case regarding their obligations under Title VII with special emphasis on harassment and responding to claims of harassment.”‘
Note that EEOC cases have randomly assigned pseudonyms which replace Complainants’ names when decisions are published to non-parties and the Commission’s website.
Excerpts:

At the time of events giving rise to this complaint, Complainant worked as an Assistant Public Affairs Officer (APAO), FS-04, at the Agency’s U.S. Mission to International Organizations in Vienna, Austria.

Complainant identified her first-level supervisor (S1), a Public Affairs Officer (PAO), as the individual who discriminated against and subjected her to a hostile work environment.

Complainant stated that over a series of days in early October 2017, following S1’s miscarriage, S1 sent Complainant Facebook messages discussing S1’s miscarriage, desire to curtail, and disappointment with how she felt that Complainant was treating her. Complainant averred that prior to October 2017, she and S1 were friends. However, S1 informed Complainant that she could no longer supervise her following her miscarriage and Complainant’s pregnancy.
[…]
On October 30, 2017, Complainant and S1 participated in mediation. Following the mediation, the mediator expressed concern that due to personal circumstances, S1 was hypersensitive to remarks and interaction with Complainant. The mediator stated that the it was “clear that [S1] rationalized her decisions as business appropriate and not based on personal situations.” The mediator added that S1’s remarks and the timing of events made it clear that S1 wanted to minimize contact with Complainant, however, it “look[ed] on face value as an effort to remove [Complainant] from places [S1] is attending and appears to lessen the exposure of [Complainant] to people and meetings she attended for over a year and a half.”

On November 3, 2017, management officials counseled S1, stating that they did not believe that S1 could properly carry out her supervisory responsibilities if she minimized direct contact with Complainant. Management officials informed S1 that excluding Complainant from Senior Staff meetings and removing her from the Senior Staff distribution list was inappropriate. On November 6, 2017, Complainant informed Human Resources officials that she was removed from her social media duties and inquired about what options were available.

On November 15, 2017, the Chargé d’Affaires informed Complainant that she wanted Complainant to attend Senior Staff meetings but did not feel the same way about the PAS meeting. She acknowledged that Complainant was experiencing a very difficult situation, stating “we know it is a bad situation and we want to, and are trying, to find a solution.” On the following day, Complainant informed the Chargé d’Affaires and S2 that the daily situation was worsening and complained of minimal communication from S1 and uncertainty about her portfolio because S1 outsourced areas of her portfolio. Complainant added that S1 did not talk to her, make eye contact, or provide information. In response, the Chargé d’Affaires informed Complainant that “if a simple solution existed, it would have been found and acted upon immediately.” She assured Complainant that she was involved in daily meetings and discussions to find a solution.

On November 20, 2017, Agency officials informed Complainant that her rater would be changed from S1 to S2. Further, coordination between Complainant and S1 would be conducted through email. Finally, Complainant would continue to attend Senior Staff meetings.

On November 30, 2017, Complainant reported that S1 remained in a position “where she is exercising biased supervision and decision-making over my work.”

On December 13, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of sex (pregnancy) when:

1. On October 15, 2017, Complainant’s work responsibilities were altered;

2. In October 2017, Complainant received written performance counseling; and

3. Complainant was subjected to a hostile work environment, characterized by, but not limited to inappropriate comments and being excluded from meetings and emails.

[…]
The Agency has already conceded in its final decision that Complainant established the first four elements of her prima facie hostile work environment case. The Agency held that Complainant failed to establish that it was liable for the hostile work environment, as it had established an affirmative defense. However, with respect to vicarious liability, element (5), the affirmative defense is not available to the Agency because we have found that S1’s actions culminated in a tangible employment action, changed worked duties.

Moreover, even if there was no tangible employment action, we find that the Agency failed to take prompt and effective action when it was notified of S1’s harassment of Complainant. While we acknowledge that the Agency initiated an informal investigation, counseled S1, and instituted a “carve-out” for evaluation purposes, we find that these actions were insufficient to meet the Agency’s full responsibility to take appropriate corrective action. ROI, at 500-501, 548-549, 599- 600, 621-623. Specifically, the Agency failed to fully remove S1 from supervisory authority over Complainant. According to counseling notes, it was S1 who stated that she did not want to rate Complainant and Agency officials initially encouraged S1 to work with Complainant despite the Agency’s contention that it did so at Complainant’s request. ROI, at 538-540. For example, on November 3, 2017, the Agency counseled S1 regarding her supervision of Complainant and instructed S1 to “provide regular guidance and coaching to help her develop professionally.” Id. at 538. The record further shows that S1 still exercised some level of control over Complainant’s work beyond November 2017 when the Agency changed Complainant’s rater.

For example, S2 “counseled [S1] to let Complainant know if there was action she should be taking that she was not” in December 2017. ROI, at 554. Even in January 2018, S1 continued to email Complainant in a supervisor capacity. Id. at 313-314. The record reflects that although S1 was removed from completing Complainant’s rating, S1 continued to harass Complainant. Complainant indicated that she reported the harassment, but it continued. Taking only some remedial action does not absolve the Agency of liability where that action is ineffective. Logsdon v. Dep’t of Justice, EEOC Appeal No. 0120081287 (Apr. 23, 2009).

The Agency asserted that it further took detailed and effective action when Complainant was offered an alternative position, which she declined, as a solution to her concerns. However, remedial measures should not adversely affect the complainant and Complainant viewed the offer as punitive. Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999), at 28-9. If it is necessary to separate the parties, then the harasser should be transferred (unless the complainant prefers otherwise). Id. The Agency did not move S1, despite requests from Complainant and S1, until April 2018 while Complainant was on maternity leave. We find that the Agency failed to take prompt and effective action. Accordingly, we find that the Agency is liable for S1’s harassment of Complainant. For the foregoing reasons, we find that Complainant has proven that she was discriminated against and subjected to a hostile work environment based on her sex as alleged.

CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency’s final decision and REMAND the matter to the Agency for further processing in accordance with this decision and the ORDER below.

ORDER The Agency is ordered to take the following remedial action:

1. Within ninety (90) calendar days from the date this decision is issued, the Agency shall conduct a supplemental investigation of Complainant’s entitlement to compensatory damages. The Agency is directed to inform Complainant about the legal standards associated with providing compensatory damages and give Complainant examples of the types of evidence used to support a claim for compensatory damages. Complainant shall be given 30 calendar days from the date she receives the Agency’s notice to provide all supporting evidence of her claim for compensatory damages. Within thirty (30) calendar days of the date the Agency receives Complainant’s submission, the Agency shall issue a new final decision determining Complainant’s entitlement to compensatory damages, together with appropriate appeal rights.

2. Within ninety (90) days of the date this decision is issued, provide no less than eight (8) hours of appropriate in-person or interactive training to the management officials involved 9 2019001540 in this case regarding their obligations under Title VII with special emphasis on harassment and responding to claims of harassment. The Commission recommends that the Agency review the following EEOC publication: Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors (June 18, 1999).

3. The Agency shall consider taking disciplinary action against the responsible management officials. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the compliance officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the Agency’s employ, the Agency shall furnish documentation of their departure date(s).

4. Within thirty (30) days of the date this decision is issued, the Agency shall reinstate Complainant’s assignments changed by S1 and remove all documentation and references to the October 2017 written performance counseling from all personnel records, including Complainant’s official personnel files.

5. The Agency shall post a notice in accordance with the Posting Order below. The Agency is further directed to submit a report of compliance, as provided in the statement entitled “Implementation of the Commission’s Decision.” The report shall include supporting documentation verifying that the corrective action has been implemented.

Read the full case here: Cecille W. v. Dep’t of State, EEOC Appeal No. 2019001540 (Aug. 19, 2020).

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How a Small Post in Africa Gets Lost in the Shuffle

Thank you to over 500 readers and supporters who made our continued operation possible this year. Raising funds for a small outlet that is already open and free for all to read has often been the most challenging part of running  this blog. We are grateful for your continued support and well wishes. Gracias — DS

This is a story about a small post in Africa forgotten by the time lords of Foggy Bottom. Not too long ago, this post quietly lost its top two officials at the same time. The State Department made no official announcement of their  departures from post. A retired ambassador was eventually sent down to take care of the far away shop.  Embassy life continued. The retired ambassador’s temporary assignment eventually ended.
An Acting Chargé d´Affaires (A/CDA) soon assumed charge, we were told. Shortly after the death of RBG in September 2020, the A/CDA complained that the flag at the official residence was not flown at half staff in her memory.  It turned out the domestic help who would have been tasked to do this had been fired and there was no replacement hired.
Dangit!
The newly designated Acting Charge d’affaires did not remember that he previously fired the live-in house manager of the ambassador’s official residence? The employee who had been in that residence for almost three decades was given a two-weeks warning. The local employee reportedly claimed no reason was given for his/her dismissal nor did said employee received any counseling.
There was also reportedly no financial settlement after the firing but this small post did have a small farewell ceremony.
“It’s not every day the head of an ancient African tribe comes to the Embassy to rebuke the acting Chargé d ́Affaires,” we learned.

The house manager’s pastor spoke, echoing the same themes, then praying for everyone present to get their hearts’ desire. Then, turning to the official responsible for the house managers’ predicament, the pastor prayed that the A/CDA would receive extra wisdom.

The chief of the ancient African tribe to which the embassy house manager belonged to, also came to gave a speech. He said it was unusual for him to speak at an event like this, but he had to come to stand with his brother, such a good and well-respected man who has been so unfairly treated.  

At the conclusion of the ceremony, the A/CDA was reportedly pleased with the ceremony not recognizing the rebuke from the visitors.
We understand that the top two senior officials at the embassy then subsequently went on R&R at the same time for a month plus two weeks of quarantine. Post was left with no trained management official except for the embassy’s computer support specialists working at the Management section. The incoming Regional Security Officer’s residence could not be  ready for occupancy and MED was reportedly acting as part Facilities Manager!
Then there were the vacant positions:
  • HRO/FMO — vacant. Incumbent transferred in summer, no replacement identified
  • GSO — vacant. Incumbent transferred summer, replacement due fall + 2 weeks quarantine
  • FMO — vacant Incumbent transferred summer, replacement due fall + 2 weeks quarantine
  • IMO — dual-hatted as Acting Management Officer
  • IMO Deputy — dual-hatted as Acting GSO
  • MED — partially acting as Facilities Manager
  • CONS — vacant. No replacement identified.
One of two consular officers transferred from post in 2020. The identified successor was discouraged by post from coming because of likely issues with accreditation with the host country. Consular Affairs reportedly had no officer identified to fill the vacant Consular officer position at post.
Second consular position was previously removed from post staffing in 2019. The incumbent officer did not only leave post but also left the Foreign Service.
The howler we heard says “There are other elements to this shit show, but mainly this Embassy is perhaps the worst managed place I have ever worked.”
How many more posts like this get lost in the shuffle?

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