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‘Rexit’ From Foggy Bottom Is Now a Thing … Plus PredictIt Odds

Posted: 1:20 am ET

 

Via CNN:

For weeks, conversations with Tillerson friends outside of Washington have left the impression that he, despite his frustrations, was determined to stay on the job at least through the end of the year. That would allow time to continue efforts to reorganize the State Department and would mean he could claim to have put in a year as America’s top diplomat.
But two sources who spoke to CNN on condition of anonymity over the weekend said they would not be surprised if there was a “Rexit” from Foggy Bottom sooner that that.
Both of these sources are familiar with Tillerson conversations with friends outside Washington. Both said there was a noticeable increase in the secretary’s frustration and his doubts that the tug-of-war with the White House would subside anytime soon.

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Inbox: Female Contractor at DS Training Center Fired 3 Hours After Filing Harassment Complaint

Posted: 3:19 am ET

 

In response to our June 20 post Diplomatic Security’s Basic Special Agent (BSAC) Training: Sexual Harassment Alert!, we received the following:

To add:

There are only two female DS Agents assigned to the DS Training Center.

There is currently an EEO suit being brought by a contract female instructor who was fired from the DS Training Center three hours after she submitted a harassment complaint. In the complaint, a male PSC co-worker frequently harassed the female instructor, and, given the timing of the termination, this is an egregious violation of whistleblower/EEO diversity/harassment free workplace regulations and policies. The male PSC employee is still employed and complaints about his dealings with female students and employees persist.

 

via reactiongifs.com’

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@StateDept Survey Report Recommends Moving Issuance of Visas, Passports, Travel Docs to DHS

Posted: 3:01 am ET

 

The State Department spent at least $1,086,250 for the “listening tour” that Secretary of State Rex Tillerson ordered in late April. On Wednesday, the report was made available internally to State and USAID employees. As of this writing, the State Department has not made the report publicly available. A State Department spokesperson told one media outlet that “Unfortunately, the results of the survey will not be available.”  

The 110-page report is copyrighted by Insigniam and marked “confidential and proprietary” (see more about that here: @StateDept Says It’s “Unfortunate” That It Withholds Employee Survey Results From Public 😢 Hu-Hu!).

The report which includes seven recommendations has a chapter on methodology, and a chapter on what employees want to tell Secretary Tillerson. There were 27,837 respondents from State, and 6,142 respondents from USAID. Some 17,600 overseas employees from the two agencies participated.

The largest category of respondents from State is Locally Employed Staff numbering at 6,735  (followed by 6,331 Generalists/FSOs, and 6,009 Civil Service employees). Mid-level rank employees across FS, CS and LE staff occupy the largest count of responders. The largest survey respondents in terms of tenure have served the State Department 6 to 10 years.

The highest number of respondents by regional bureau came from Bureau of European and Eurasian Affairs (EUR) at 3,131. The highest number of respondents by functional bureau came from the Bureau of Diplomatic Security (DS) with 2,524 respondents, followed by the Bureau of Consular Affairs (CA) with 2,142.

The “listening tour” report has multiple parts but we’d like to go straight to the recommendations it provides, which includes crafting a mission; alignment of purpose and mission; serving the frontline first; treasuring the talent; build a shared services model; duration of assignments and overlap transition time; and the removal of the uncertainty of cuts as soon as possible.

Of special note is Recommendation #5 which is “Build a Shared Services Model” which includes 1) security clearances, 2) human resources, 3) IT, 4) planning, budgeting, finance, procurement, and administrative functions, and  5), Move issuance of passports,visas,and other travel documents to Homeland Security.

Folks, ever heard of ICASS? There are already 13 agencies, in addition to State and USAID who are ICASS shared services participating agencies.  State doesn’t have to build a shared services model, it already has one; and that it can expand. Agencies pay their share of post administrative costs based on usage. “Department of State management personnel currently provide most ICASS services, the post ICASS Council can select other U.S. Government agencies or commercial firms to provide services if it can be demonstrated that they have a competitive advantage in improving services or cutting costs.”  As of August 1, 2016 update, participation in services offered through ICASS is voluntary for agencies except for Basic Package, Community Liaison Office Services, Health Services, and Security Services which are mandatory.

The International Cooperative Administrative Support Services (ICASS) system is the principal means that the U.S. Government provides and shares the cost of common administrative support needed to ensure effective operations at its more than 200 diplomatic and consular posts abroad.  In the spirit of the Government Performance and Results Act, the ICASS system seeks to provide quality services at the lowest cost, while attempting to ensure that each agency bears the cost of its presence abroad.  ICASS, through which over 300 Government entities receive bills for shared services, is a break-even system; the charge to the customer agencies equals the cost of services.

The ICASS program provides a full range of administrative services.  These include motor pool operations and vehicle maintenance, travel services, reproduction services, mail and messenger services, information systems management, reception and telephone system services, purchasing and contracting, human resources management, cashiering, vouchering, accounting, budget preparation, residential and nonresidential security guard services, and building operations.  In addition to the services delivered at the post level, the ICASS system also provides service at the regional level.  An example of regional service delivery is the regional finance centers.  ICASS also delivers services at the headquarters level.  Examples of headquarters level services are the shared expenses of the overseas medical program and the grant program managed by Office of Overseas Schools (A/OPR/OS).  The cost of regional and headquarters level programs are added to the cost of post administrative support and distributed to customer agencies as part of the headquarters-level bill.

The recommendation talks about “creating, at minimum a DOS/USAID and optimally, a federal shared services model that includes these functions:”

Item 1: “Security clearances: eliminate the need to apply for a new security clearance for each new federal agency someone is hired by.”

That sounds awkward. Anyway, right now every agency has its own security clearance process. For instance, if an EFM (diplomatic spouse) were hired by DEA at post, his/her security clearance would be done by the DEA. We understand that whichever agency is doing the hiring also does the security clearance. The smart folks who explained this to us said that having a clearance from one agency might speed up your ability to get a clearance from another agency, but the clearances are not reciprocal from one agency to another. For example, if a Secret Service agent is hired by Diplomatic Security, his/her security clearance from the Secret Service doesn’t transfer to the State Department.

So if you’re talking about “eliminating” the need to apply for a new clearance once hired into a new federal agency — well, that’s not at all within the control of the State Department or USAID. Every agency has its own rules.  You want to make those security clearance rules reciprocal across agencies, you want employees to be able to carry their security clearance across agencies, neither the State Department nor USAID have authorities to do that.

A law enforcement pal told us that the only way this recommendation would work is if ALL background investigations were done by a national agency and all executive agencies are required to accept the security clearance issued by that national agency.  There is the National Background Investigations Bureau (NBIB), housed at OPM (oh, dear), responsible for conducting background investigations for over 100 Federal agencies – reportedly approximately 95 percent of the total background investigations government-wide.  As of October 1, 2016, the NBIB was established as the primary service provider of government-wide background investigations for the Federal Government with the mission of “delivering efficient and effective background investigations to ensure the integrity and trustworthiness of the Federal workforce.” On paper, Executive Order 13764 of January 17, 2017 already provides for the reciprocity of background investigations and adjudications conducted by other authorized agencies. But we don’t know how NBIB works in real life.

So —  if you really want to make the process more efficient and effective, you want not just the portability of a security clearance across agencies, you also want the revalidation process for security clearance to move faster. For that to happen, you need people to process and approve the revalidation. You can’t do that if people are rotating out of positions, and/or if you can’t hire even temporary help because of a self-imposed hiring freeze. So …

Item 4: Other planning, budgeting, finance, procurement, and administrative functions: “…one of the initial areas of focus must also be a comprehensive audit of all reports. This will be followed by an aggressive initiative to streamline and consolidate the cacophony reports and the large amount of people-hours invested in writing them.”

Back in 2010, State/OIG determined that the Bureau of Legislative Affairs (State/H) tracked 310 congressionally mandated reports that needed to be submitted in FY 2010. The Bureau of Administration (State/A) on the other hand separately tracked 108 recurring reports required by the Department. If you want to streamline or consolidate those reports, the State Department could start with the A bureau, but would obviously require congressional approval for those 310 reports. The Bureau of Legislative Affairs (State/H) could certainly tackle that, except wait, we don’t have a Senate confirmed Assistant Secretary for Legislative Affairs, or a Principal Deputy Assistant Secretary. My gosh, that bureau is like a ghost town!

Finally item 5 under the report’s “Build Shared Services Model” may prove to be the most controversial:

Item 5: “Move issuance of passports, visas, and other travel documents to Homeland Security: we heard enough comments (combined with our own expertise in organization design and patterns to conclude) that there may be an opportunity to elevate efficiency and reduce cost by this change. Indications are that doing so would elevate security at our borders and remove a source of dissatisfaction and frustration.”

Folks, the entire report contains three references to visas …

#1 –  an acknowledgement of the men and women behind the scenes who helped the contractors obtained visas during the listening tour;

#2 – a comment from one of the respondents who said, “Focus the Department’s mission and rein in the mission creep. Too much goobly-gook has crept in. We should protect American citizens and businesses, vet visas, and encourage democratic rule of law and good governance. Full stop;”

#3 – Under Recommendation 5 “Move issuance of passports,visas,and other travel documents to Homeland Security.

The report does NOT/NOT  include any discussion or justification presented on how moving the issuance of passports, visas and other travel documents may elevate efficiency, and reduce cost, or how it would elevate security at our borders. The contractors heard “enough comments” but those comments do not appear to be in the report.

By the way, what’s the upside of cost reduction if you actually lose $2.45 billion of annual revenue in the process?

We should note that Consular Affairs (CA), the bureau responsible for the issuance of passports and visas has over 12,000 employees at 28 domestic passport facilities, 2 domestic visa centers, 8 headquarters offices, and more than 240 consular sections at embassies and consulates around the world.  In FY2012, the Bureau also generated approximately $3.14 billion in consular fee revenue, of which 78% ($2.45 billion) was retained by the State Department and shared among its regional and functional bureaus.

We will write a separate post about this recommendation because it deserves a longer post. It is also worth noting that the Trump Administration’s nominee to lead Consular Affairs is publicly on record in support of moving the visa function to DHS (see Ex-FSO Who Once Advocated Moving Visas to DHS May be the Next Asst Secretary For Consular Affairs).

 

Related posts:

 

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@StateDept Says It’s “Unfortunate” That It Withholds Employee Survey Results From Public 😢 Hu-Hu!

Posted: 1:59 am ET

 

Via govexec.com:

“Unfortunately, the results of the survey will not be available,” said Nicole Thompson of the department’s Office of Press Relations. That position comes in spite of the fact that a copy of the 110-page survey report from Insigniam, a consulting firm, was leaked to the Wall Street Journal, which published excerpts.

Hey, that’s the $10K/page report that the American taxpayers paid for but cannot read publicly. “Unfortunate” is an understatement. We also don’t know who owns the data collected during this study. Do you?

The contractor has asserted its copyright on the report — provided for under the FAR — in which case, “when claim to copyright is made the Contractor grants the Government, and others acting on its behalf, a license to the work.” Also that “The Government’s license includes the right to distribute copies of the work to the public for government purpose.” So in this case, by not making the report public, the State Department has decided that the American public does not have a right to see a report it paid for.

Folks, this is going to be the document that Mr. Tillerson will cite in reorganizing, no, excuse me, downsizing his own agency, the oldest executive agency in our history, and the public is not allowed to read it?  Holy moly guacamole! Help me! I can’t stop crying 😢 😢 😢 …

If Contractor is Allowed to Assert Copyright in a Work Produced Under a Government Contract, What Rights Does the Government Have?

Federal Acquisition Regulation (FAR) was established to codify uniform policies for acquisition of supplies and services by executive agencies. The following from the Frequently Asked Questions About Copyright Issues Affecting the U.S. Government  addresses the issue of copyright from an operations perspective:

A contractor’s assertion of copyright in a work produced under a DFARS contract does not provide any restrictions to the Government’s use of the work (see DFARS 227.7103-990 and 227.7203-991). In a FAR contract, if the contractor is permitted to assert copyright, the Government will acquire a license to the copyrighted work. The extent of the license may depend on the type of work created (see FAR 52.227-1492).

Under the FAR, when a contractor asserts copyright in a work first produced in the performance of a contract with a civilian agency or NASA, the contractor must place a copyright notice acknowledging the government sponsorship (including contract number) on the work when it is delivered to the Government, as well as when it is published or deposited for registration with the U.S. Copyright Office (see FAQ Section 4.8). If no copyright notice is placed on the work, the Government obtains unlimited rights in the work. Unlimited rights allow the Government to provide the work to another contractor and distribute the work to the public, including posting the work to a public web site. Otherwise, when claim to copyright is made the Contractor grants the Government, and others acting on its behalf, a license to the work.

The Government’s license is a nonexclusive, irrevocable, worldwide license to use, modify, reproduce, release, perform, display or disclose the work by or on behalf of the Government. The Government may use the work within the Government without restriction, and may release or disclose the work outside the Government and authorize persons to whom release or disclosure has been made to use, modify, reproduce, release, perform, display, or disclose the work on behalf of the government. The Government’s license includes the right to distribute copies of the work to the public for government purpose. While the contractor may assign its copyright in “scientific and technical articles based on or containing data first produced in the performance of a contract” to a publisher, the Government’s license rights attach to the articles upon creation and later assignment by the contractor to a publisher are subject to these rights. Under some FAR data rights clauses, if the work is a computer program, the right to release or disclose the computer program to the public is not included in the Government’s license. If there is any question as to the scope of the Government’s license, the Contracting Officer or your General Counsel should be consulted.

An example of a copyright statement, which includes a government license, for use with works created under contracts with civilian agencies and NASA is:

COPYRIGHT STATUS: This work, authored by ______________ employees, was funded in whole or in part by _________________ under U.S. Government contract _______________, and is, therefore, subject to the following license: The Government is granted for itself and others acting on its behalf a paid-up, nonexclusive, irrevocable worldwide license in this work to reproduce, prepare derivative works, distribute copies to the public, and perform publicly and display publicly, by or on behalf of the Government. All other rights are reserved by the copyright owner.

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Secretaries of State: Present at the Creation, Present at the Destruction

Posted: 4:18 am ET
Updated: July 2, 10:59 pm PT

 

LOOK WHAT WE FOUND  — via Amazon:

Dean Acheson joined the U.S. Department of State in 1941 as an assistant secretary for economic affairs. Shortly after the end of World War II, he attempted to resign, but was persuaded to come back as under secretary of state; Harry Truman eventually rewarded Acheson’s loyalty by picking him to run the State Department during his second term (1949 to 1953).

“The period covered in this book was one of great obscurity to those who lived through it,” Acheson wrote at the beginning of his memoirs, first published in 1969. “The period was marked by the disappearance of world powers and empires … and from this wreckage emerged a multiplicity of states, most of them new, all of them largely underdeveloped politically and economically. Overshadowing all loomed two dangers to all–the Soviet Union’s new-found power and expansive imperialism, and the development of nuclear weapons.” Present at the Creation is a densely detailed account of Acheson’s diplomatic career, delineated in intricately eloquent prose. Going over the origins of the cold war–the drawing of lines among the superpowers in Europe, the conflict in Korea–Acheson discusses how he and his colleagues came to realize “that the whole world structure and order that we had inherited from the nineteenth century was gone,” and that the old methods of foreign policy would no longer apply. Among the accolades Acheson garnered for his candid self-assessment was the 1970 Pulitzer Prize for history.

The passing decades confirm Dean Acheson’s place as the clearest thinking, most effective Secretary of State of the twentieth century. As a writer he has no equal since Thomas Jefferson first occupied the office in the eighteenth century.–Gaddis Smith, Yale University

 

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@StateDept Releases New Sexual Assault Guidance For COM Personnel & Facilities Outside the United States

Posted: 1:09 am ET

 

We’ve written several blogposts (see below) about the lack of sexual assault guidance in the Foreign Affairs Manual, most recently in May this year (see A #SexualAssault Reporting Process Foreign Service Members Deserve: How Much Longer Secretary #Tillerson?).

On June 6, the State Department finally issued a new Foreign Affairs Manual sub-chapter 1710 SEXUAL ASSAULTS INVOLVING CHIEF OF MISSION PERSONNEL AND FACILITIES but it was not made available online. On June 20, a FAM revision was made according to the Change Transmittal to correct the subchapter title, specifying that the subchapter pertains to matters outside the United States, as well as to update a few other references. The chapter is now available online for folks to read.

https://fam.state.gov/FAM/03FAM/03FAM1710.html

You may also read it below; use the lower-right hand arrow to maximize the Cloudup page.

We’re still reading though this. We hope to have a follow-up post later. For now we want to say thank you to the FS members who shared their difficult stories with us and our readers; to former U/S Patrick Kennedy for the creation of the inter-bureau taskforce to create this subchapter; to the members of the task force who did the work on this, and Secretary Kerry then, and Secretary Tillerson now who oversees the Department and the Foreign Service.

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Sexual Assault Related posts:

 

Diplomatic Security’s Basic Special Agent (BSAC) Training: Sexual Harassment Alert!

Posted: 2:21 pm PT

 

In August 2016, the Bureau of Diplomatic Security’s Principal Deputy Assistant Secretary for Diplomatic Security and Director of the Diplomatic Security Service (DSS) Bill Miller sent a message on sexual harassment to bureau employees.  We published the entire message here, Below is an excerpt of that 2016 statement:

Diplomatic Security takes sexual harassment extremely seriously – not only as an issue in the State Department, but also especially within our Bureau. 

In our response to questions from Diplopundit on this issue July 27, we noted that we find unacceptable any behavior that threatens people’s well-being in the workplace, or in any way diminishes someone’s professional capacity. 

Sexual harassment is an attack on the values this organization seeks to protect every day.  It compromises our charge to protect the workplace rights and ensure a safe environment for all Department employees.
[…]
As a law enforcement organization, we must hold ourselves to the highest standards of ethical conduct. As the leader of this organization, I hold every employee accountable to that standard and will not accept any less of them.

Sexual harassment and sexual assault are serious issues that affect both men and women. We condemn any comment that seeks to trivialize these activities or their impact on victims. 

Diplomatic Security personnel are made aware of their responsibilities as law enforcement officers and federal employees from the beginning of their employment with the Department.  DS employees receive recurring training on equal employment opportunity guidelines, prohibiting discriminatory practices, harassment in all its forms, and promotion of diversity and inclusiveness throughout their career. 

During the Basic Special Agent Course, Basic Regional Security Officer (RSO) and RSO advanced courses, individuals from the DS Victim’s Resource Advocacy Program provide classes on responding to sexual assault.

I am disappointed and disturbed to hear that anyone in our organization would be concerned about being stigmatized for coming forward to report sexual harassment or sexual assault.  It is unacceptable that we have employees of any gender who may not feel comfortable reporting such activities.

This week, we received an email from a new Diplomatic Security Service (DSS) agent detailing sexual language that female student-agents had to endure during Diplomatic Security’s Basic Special Agent Course (BSAC) training. The writer expressed concern over the “worrisome behavior by senior agents conducting the training” and the apparent tolerance by others witnessing such behavior.  The writer also wrote: “One senior female agent advised me that upon receipt of this complaint, DSS Management’s first response will likely be to try to figure out who the “complainer” is . . rather than dealing with the senior agents responsible for damaging the department’s reputation.”  Our corespondent suggests that if investigators outside of Diplomatic Security want to look into this, all they need to do is talk to the female agents in BSAC’s 137, 136, and 135.

The report below is what we can share publicly.  This writer like our other correspondents in the past, is also wary of retaliation.  We’ve referred to Special Agent #1 as SA#1 although we can certainly imagine a more colorful name. Special Agent #2 is also referred below as SA#2.

ALERT! ALERT! ALEEEEERT!

Received via email from a DSS Special Agent

-START-

Here is what I witnessed:

1) During protective training, I was assigned to a follow car that was “coached” by [Special Agent #1]. During our time with [SA#1], myself and the other females in the group had to listen to [SA#1] describe in detail how during his time in Baghdad he shaved his “balls” and had problems with them “sticking.” [SA#1] then felt it appropriate to detail a trip to his doctor where he had a consultation about erectile medication. [SA#1] also made repeated derogatory comments about his wife. My memory is a little fuzzy on those comments, but they were along the line of, “the old ball and chain, etc.”

I should mention that one of the female agents present is only 22 years old. So this young agent, in her first real job out of college had to sit (literally right next to [SA#1] in the back seat / physically touching him) and listen to [SA#1] , her supervisor, go on and on about his sticky balls in Baghdad and his erectile disfunction . . .i.e. he was discussing his penis.

2) The protection portion of the training was run by unit chief [Special Agent #2]. I personally was “creeped” out by [SA#2] during the entire training as he would try to flirt with the female students in a very unprofessional manner. [SA#2] really crossed the line, however, when for some reason he decided to ask one of the female students (now an agent) for their phone and proceeded to look through it. [SA#2] found the phone number or a text message in the female student-agent’s phone for one of the male contractors working on our final exercise, and texted “I miss you” to the contractor (from the female student/agent’s phone). The female student/agent was of course mortified as it appeared she was texting “I miss you” to the contractor. Is this appropriate behavior from a Unit Supervisor in the training division?!

[SA#2’s] inappropriate behavior continued when, during a re-test he decided to switch out a male student-agent from the position sitting next to him in the exercise to the above mentioned female student-agent. [SA#2] advised the entire BSAC that he was making the switch so he could have someone to “talk to.” He was supposed to be grading the re-test, but instead decided to use the time to creepily attempt to flirt with the female student-agent.

I am sure the above behavior by [SAs #1 and #2] has been repeated in multiple BSAC’s and I hope the department conducts a thorough investigation. Honestly, however, I am not so optimistic that things will change. I know Diplopundit has documented several such sexual harassment claims in the not so distant past, and yet, the above Supervisory SAs seemed to have no compunction in openly behaving this way in front of the 20 plus student-agents!

Where are the Director and the other senior members of DSS management?!! If they cannot protect/prevent a 21 year female agent from having to listen to Supervisory SAs like [SA#1 and SA#2] while she sits in training, how can DSS Senior Management be trusted to protect that same agent from harassment while she is serving in a high threat post in a 98% male RSO shop?!

The Director came to speak to our BSAC, and within 3 minutes of our “pep” talk he told us that if we had joined DSS to use it as a stepping stone we should “get the hell out.” That is a direct quote. One day on the job, and the Director comes in and says “get the hell out” in a pep talk. I would like to turn that around on the Director. If the senior leadership in DSS cannot prevent Supervisory Agents from “creeping out” all females in a BSAC class. Or prevent female student-agents from having to listen to Supervisory SA’s conducting BSAC training discuss their “shaved balls,” maybe it is time for the Director and others to “get the hell out” and leave the bureau in more capable hands?

-END-

The Eleventh Circuit’s decision in Henson v. City of Dundee, 682 F.2d 897, 902, 29 EPD Âś 32,993 (11th Cir. 1982) notes the following:

Sexual harassment which creates a hostile or offensive environment for members of one sex is every bit the arbitrary barrier to sexual equality at the workplace that racial harassment is to racial equality. Surely, a requirement that a man or woman run a gauntlet of sexual abuse in return for the privilege of being allowed to work and made a living can be as demeaning and disconcerting as the harshest of racial epithets.

Female agents should not have to bear and tolerate this kind of language and offensive behavior for the privilege of being allowed to work at Diplomatic Security.

Why would anyone think this is appropriate, acceptable behavior?

And when this is done by individuals in supervisory ranks during training, how do you expect new employees to step up and report this to these same supervisors? The same supervisors, by the way, who can pass/fail employees during basic training. The same supervisors, by the way, who ought to be modeling the highest standards of ethical and professional conduct for agents-in-training.

While the EEOC policy guidance on sexual harassment notes that “sexual flirtation or innuendo, even vulgar language that is trivial or merely annoying, would probably not establish a hostile environment,” it also talks about the pervasiveness and pattern of behavior.

Putting aside our previous reports on harassment at Diplomatic Security for a moment — if we’re talking about three classes to start with here, what is that if not a pattern? And if this behavior was witnessed and tolerated by people and contractors who should know better, then Diplomatic Security has a systemic problem that no broadcast message from bureau officials can fix.

The Supreme Court said in Vinson that for sexual harassment to violate Title VII, it must be “sufficiently severe or pervasive ‘to alter the conditions of [the victim’s] employment and create an abusive working environment.'” 106 S. Ct. at 2406 (quoting Henson v. City of Dundee, 682 F.2d at 904. Since “hostile environment’ harassment takes a variety of forms, many factors may affect this determination, including: (1) whether the conduct was verbal or physical, or both; (2) how frequently it was repeated; (3) whether the conduct was hostile and patently offensive; (4) whether the alleged harasser was a co-worker or a supervisor; (5) whether the others joined in perpetrating the harassment; and (6) whether the harassment was directed at more than one individual.

In determining whether unwelcome sexual conduct rises to the level of a “hostile environment” in violation of Title VII, the central inquiry is whether the conduct “unreasonably interfer[es] with an individual’s work performance” or creates “an intimidating, hostile, or offensive working environment.” 29 C.F.R. § 1604.11(a)(3). Thus, sexual flirtation or innuendo, even vulgar language that is trivial or merely annoying, would probably not establish a hostile environment.

Preventive actions per EEOC‘S Guidelines encourage employers to: “take all steps necessary to prevent sexual harassment from occurring, such as affirmatively raising the subject, expressing strong disapproval, developing appropriate sanctions, informing employees of their right to raise and how to raise the issue of harassment under Title VII, and developing methods to sensitize all concerned.”

Also 29 C.F.R. § 1604.11(f): An effective preventive program should include an explicit policy against sexual harassment that is clearly and regularly communicated to employees and effectively implemented. The employer should affirmatively raise the subject with all supervisory and non- supervisory employees, express strong disapproval, and explain the sanctions for harassment. The employer should also have a procedure for resolving sexual harassment complaints. The procedure should be designed to “encourage victims of harassment to come forward” and should not require a victim to complain first to the offending supervisor. See Vinson, 106 S. Ct. at 2408. It should ensure confidentiality as much as possible and provide effective remedies, including protection of victims and witnesses against retaliation.

All well and good, but in the real world we have these: Chien v. Kerry: DS Agent Files Suit For Race/Sex Discrimination, Hostile Work Environment, and Retaliation; Inbox: Female Diplomatic Security Agent Pens a Note on Sexual Harassment and Career Suicide; Another Concerned DS Agent Pens Response to Diplomatic Security’s Broadcast Message on Sexual Harassment.

The State Department’s sexual harassment policy is memorialized here.

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Since you’re visiting us —

We have been a reader-supported blog since 2014. We want to keep this blog as open as possible and that’s the reason we don’t have a subscription fee. You know best whether our work is of value to you or not. If it is, and if your circumstances allow it, we could use your help to carry on for another year: Help Diplopundit Get to Year 10 ⚡️

 

 

Court on FSGB tenure denial case: “ignores significant parts of record and fails to connect rationally”

We have been a reader-supported blog since 2014. We want to keep this blog as open as possible and that’s the reason we don’t have a subscription fee. You know best whether our work is of value to you or not. If it is, and if your circumstances allow it, we could use your help to carry on for another year: Help Diplopundit Get to Year 10 ⚡️
Posted: 1:50 am ET

 

The 2016 Annual report of the Foreign Service Grievance Board only mentions the Aragon v. Tillerson case in passing as follows:

Daniel P. Aragon, a former Foreign Service career candidate at the Department of State, filed an appeal on January 29, 2016, with the District Court for the District of Columbia, challenging the Board’s denial of his appeal in FSGB Case No. 2014-034. Mr. Aragon had contested two EERs and the withholding of tenure and involuntary separation that flowed from those EERs.

This case was filed in 2016. Per Federal Rule of Civil Procedure, the Court substituted as defendant the current Secretary of State,Rex Tillerson, for former Secretary of State John Kerry.

Chief Judge Beryl A. Howell of the U.S. District Court for the District of Columbia has harsh words for the Foreign Service Grievance Board (FSGB) on this specific case:

The plaintiff, the Foreign Service, and American taxpayers have invested heavily in the plaintiff’s career as a Foreign Service officer, and the FSGB does a disservice when it renders a decision that ignores significant parts of record and fails to connect rationally the underlying facts to its ultimate conclusion. This is what the FSGB did in finding that the May and November 2013 EERs were not falsely prejudicial. For these reasons, the FSGB’s decision is vacated with respect to its conclusion that these EERs were not falsely prejudicial, and this action is remanded to the FSGB for further proceedings consistent with this Memorandum Opinion.21

Quick summary of the case:

The plaintiff, Daniel Aragon, served as an entry-level Foreign Service Officer with the U.S. Department of State for five years, until he was denied tenure and involuntarily separated in 2014. The reason for the tenure denial arose during the plaintiff’s second overseas assignment, when the plaintiff was responsible for supervising an employee, whose undisputed pattern of insubordination, tardiness, abuse of leave policies and performance issues would, in many work environments, warrant termination of employment. Instead, the plaintiff’s management efforts, which were ultimately successful, to bring this employee into compliance with basic workplace rules, has led to the plaintiff’s own termination from a job he “love[s].” AR at 354.1

The plaintiff filed the instant action against the Secretary of State, in the Secretary’s official capacity, after the State Department denied his grievance contesting the performance evaluations on which the tenure denial was predicated, and the Foreign Service Grievance Board (“FSGB”) upheld the State Department’s decision.2 Alleging that the FSGB’s decision was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” in violation of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), the plaintiff seeks, inter alia, an order directing the State Department to remove from his personnel file the two performance evaluations on which the denial of tenure was predicated, Compl., Relief ¶ 3, ECF No. 1; an order rescinding the tenure decisions predicated on those evaluations, id.; an order directing the State Department to reinstate the plaintiff retroactively, with back pay and benefits, id. ¶ 4; and an order directing the State Department to place the plaintiff in the same promotional class he would be in had he received tenure in the winter of 2013, id. ¶ 5. Pending before the Court are the plaintiff’s motion for summary judgment, see generally Pl.’s Mot. Summ. J. (“Pl.’s MSJ”), ECF No. 12, and the Secretary’s cross-motion for summary judgment, see generally Defs.’ Mot. Summ. J. (“Defs.’ MSJ”), ECF No. 14. For the reasons set out below, the plaintiff’s motion for summary judgment is granted in part and denied in part, without prejudice, the Secretary’s cross-motion for summary judgment is denied without prejudice, and this action is remanded to the FSGB for further proceedings.

What the what? Excerpt from court’s opinion:

[T]he record shows that the CPS [cultural program specialist FSN] had an “apparent pattern” of abusing sick leave and would disappear from work for extended periods of time. Id. at 42; see also id. at 335 (describing the manner in which the CPS “took sick leave immediately before or after a block of annual leave[, which] suggest[ed] that she was abusing sick leave in order to augment her annual leave”). This apparently lax office culture was extant before the plaintiff’s arrival, leaving him with the task of changing that culture to ensure that employees, such as the CPS, on the U.S. Government payroll complied with the most basic work performance rules of coming to work on time and providing notice of absences.”

Lip service to evidence

The FSGB paid this evidence lip service in the section of its decision summarizing the plaintiff’s claims, see id. at 405, but the Board did not refer to it, let alone grapple with it, in deciding that the AFI concerning the counseling session was not falsely prejudicial for completely omitting any reference to the events giving rise to the counseling session or the context, in which even before the plaintiff’s arrival, the Dubai office had such deficient management that the CPS was able to develop and engage in a pattern of poor work behavior.

Fails to connect rationally …

That prior agency management in Dubai allowed such poor work habits to persist likely made the plaintiff’s effort to enforce the most basic workplace rules more difficult and makes it all the more impressive that the plaintiff was, apparently, ultimately successful in reining in the CPS’s behavior. See, e.g., AR at 42 (noting that after the plaintiff spoke with the CPS about her “apparent pattern of abusing sick leave, . . . there were no further incidents of suspected leave abuse during the rating period”). As the FSGB itself has noted, a supervisor will “almost inevitabl[y]” have “a difficult relationship” with an employee when the supervisor “is trying to effect changes” in the employee’s behavior. FSGB Op. 2006-052 at 13.

Read in full below:

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Trump and Tillerson Show Off Incoherent Qatar Policy in 90-Minute Cliffhanger

Posted: 3:10 am ET

 

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Tillerson to Appear 6/13 Before Senate Panel For FY2018 @StateDept Budget Request

Posted: 3:10 am ET

 

Mark your calendar — Tuesday next week, Secretary Tillerson is scheduled to appear before the Senate Foreign Relations Committee (SFRC) for a Review of the FY 2018 State Department Budget Request.  The hearing will be chaired by SFRC Chairman Bob Corker. This will be Secretary Tillerson’s first public Senate appearance since his confirmation as Secretary of State. Questions will be specific to the FY18 budget but we expect that there will also be questions on the planned agency reorganization, staffing gaps, morale, and a host of items that have surfaced on the news since he was confirmed in February. Get the popcorn ready!

Date: Tuesday, June 13, 2017
Time: 10:00 AM
Location: SD-419
Presiding: Senator Corker

The prepared statement and live video will be posted here when available.

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