EEOC: US Embassy Yemen FSN Discrimination Claim Over Denial of Overtime Fails

 

This is an instructive case for local employees of U.S. missions overseas. Even during a crisis, especially during a crisis, during chaos, even during evacuations, if a local employee is tasked to do work outside or normal work hours, there must be overtime pre-approval by the the supervisor (typically this means the American officer-supervisor).   In this EEOC case, the local employee claimed 1,952 hours of overtime for work purportedly done from 2015-2019. Without documented pre-approval by the American supervisor, Uncle Sam is not obligated to pay.
Even if a supervisor  or some other embassy official asked for work to be done; even if work was actually done as requested …if there’s no record or documentation regarding the overtime requests or preapproval for the overtime “as required”, there would be “no basis to grant the overtime pay.”
All good supervisors and decent human beings hopefully will ensure that pre-approvals are made and granted before any work requests are made of the local staff. Otherwise, you’ll be asking, and no one will be paying …. and that would disturb one’s conscience. Or should.
Via EEOC Appeal No. 2020003186:
At the time of events giving rise to this complaint, Complainant worked as a Defensive Security  Coordinator, Grade 10, at the Agency’s U.S. Embassy in Yemen. On April 30, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment on the bases of race (Arabian) and national origin (Yemen) when:

1. Complainant was denied overtime compensation for work he performed since 2015, and as recently as April 3, 2019;

2. Complainant has been denied a higher base salary level commensurate with his other American citizen colleagues; and
3. He was subjected to a hostile work environment, characterized by, but not limited to, his supervisor’s requests that he return his U.S. government-issued vehicle.  The most recent request was March 18, 2019.
Complainant was hired by the Agency in 2010, as a Local Hire under the Local Hire Program at the U.S. Embassy. Complainant has dual citizenship; he was born in Yemen and became an American citizen on September 22, 2006. He averred management knew his race and national origin because he was a Local Hire.

Claim 1 – Denial of Overtime (OT) Compensation since 2015

Complainant claimed that he held two different positions with the Agency. First, Complainant stated that he performed Defensive Security Coordinator duties from January 2014 to July 2019. Complainant stated that he had been granted overtime for years in this position prior to the Embassy’s evacuation in 2015. Secondly, Complainant claimed that he performed Regional Security Officer (RSO)/Team Lead duties from February 2015 to November 2015. Complainant claimed that his duties increased after taking on that role. Complainant alleged that he was called at all hours of the day and night.


On February 12, 2015, the Embassy where he worked was forced to evacuate. Shortly thereafter, in March, war ensued. After Complainant worked to coordinate the evacuation, he returned to the U.S. The Embassy suspended operations in 2015. The record indicates that Complainant’s entire work history was destroyed along with all other employee files that were kept onsite. The record indicates, however, that he remained on the Agency rolls until July 2019.


Complainant stated that after the evacuation, his work continued and he says his responsibilities escalated, but he was not fairly compensated. Complainant alleged that he sent an email to management officials, including his supervisor at the time (S1-2), listing all of the dates he worked overtime but he received no response. Further, Complainant claimed that he was told that they would try to process it, but he might have to wait until the Embassy reopened.


S1-2 acknowledged that Complainant held the Defensive Security Coordinator position and was eligible for overtime, but only with a prior authorization from his supervisor. He averred that he was the one to approve, but he averred “no requests for overtime were made.” S1-2 further confirmed, however, that Complainant provided information in support of his claim for 1,952 hours of overtime. S1-2 said that he forwarded the overtime claim to the Department and asked Complainant for further documentation.


Complainant submitted an email to his supervisor regarding his overtime on December 12, 2018, and after he did not receive a reply, he reached out to the Office of Civil Rights.

He received a reply on April 3, 2019. In the response, S1-2 informed Complainant that there was no record or documentation regarding his overtime requests or preapproval for the overtime as was required. Therefore, there was no basis to grant the overtime pay.

Claim 2 – Denial of Higher Compensation Given to American Colleagues

While working in the RSO section, Complainant believed that he was entitled to a higher base salary. Complainant averred that he should have received a new contract, inasmuch as he was promised a promotion. Complainant alleged that his former supervisor (S1-1) tasked him with controlling everything but did not ensure that he was compensated fairly. In addition, Complainant alleged that numerous officials over the years failed to ensure that he was compensated fairly or transition his job status. Complainant asserted that all of the issues stemmed from the fact that he was hired as a Locally Employed Staff. Complainant averred that, unlike his non-Arabian colleagues, he had to pay for his family to evacuate Yemen because of the war, but the government paid for the other employees’ families to evacuate. Complainant state that he was also put on at least one Reduction-in-Force list, but the notice was rescinded.
[…]
Complainant averred that he thought he could “work his way up” because of his American citizenship status. He acknowledged that he was hired as a Locally Employed Staff employee, which does not have a Career Ladder progression.

Claim 3 – Hostile Work Environment/Demand for Vehicle Return

Before the February 2015 evacuation of the Embassy where Complainant worked, he had been assigned a vehicle. The car is still parked at his relatives’ home in Yemen. When he and others were forced to flee in 2015, it was assumed that he would be able to come back in about a month.
He averred the Agency stopped him from going back because of the risks for him. On February 4, 2019, S1-2 issued a directive that the car be returned to service. The two communicated via email during the period February 23, 2019 to March 14, 2019. Complainant told him that he
feared his family would be placed in danger if the vehicle was retrieved. To protect his family still in Yemen, Complainant asked for certain safeguards. There were no further communications after April 2019.
[…]
In the decision, the Agency found that Complainant was not subjected to discrimination as alleged.
[…]
Upon review of the record, we find that Complainant has not presented sufficient argument or evidence to establish that the Agency’s explanations for its actions were pretext intended to mask discriminatory motivation. As a result, we find that Complainant was not subjected to the discrimination as alleged.

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#HavanaSyndrome at U.S. Embassy Bogotá: Who should be in the business of confirming these incidents?

 

Via Daily Press briefing, October 12, 2021:
QUESTION: … And can you confirm the Havana syndrome cases or deny it, or just address that in Colombia embassy in Bogotá, in U.S. Embassy in Bogotá?
MR PRICE:  …. When it comes to Havana syndrome, you will probably not be surprised to hear me say we are not in the business of confirming reports. But —
QUESTION: But I don’t understand, why are you not in the business of confirming reports? This is squarely about State Department personnel. These are happening at U.S. embassies. Who should be in the business of confirming these incidents?
MR PRICE: We are in the business of, number one, believing those who have reported these incidents, ensuring that they get the prompt care they need in whatever form that takes, whether that is at post, whether that is back here in the Washington, D.C. area. We are in the business of doing all we can to protect our workforce and the broader chief of mission community around the world.
QUESTION: So have they reported in Bogota U.S. embassy?
MR PRICE: I’m sorry?
QUESTION: Have they reported – like, are you doing all of those things for U.S. embassy in Bogota?
MR PRICE: We are doing this everywhere an anomalous health incident is reported. But we are also doing things universally, and we are communicating with our workforce. We are instituting new training modules to ensure that outgoing State Department officers know how to detect a potential anomalous health incident, they know how to report a potential anomalous health incident, they know who – to whom to turn should they need to report it, they know the type of assistance that they can receive. Their families are apprised of these dynamics as well. And as you know, the Secretary has had an opportunity to meet with some of those who have reported AHIs.
There is no higher priority that the Secretary has to the health, the safety, the security of our workforce. I’ve said this before, but even before he was Secretary of State, one of the briefings he proactively requested as the nominee for the office he now holds during the transition was a comprehensive briefing on so-called Havana syndrome or anomalous health incidents. He wanted to make sure he entered this job understanding where we were and what we had done, and importantly, what this department could do better to support our workforce at all levels. And we have taken a number of steps, including in terms of communication, in terms of care, in terms of detection, in terms of protection for our workforce, and that is something that will continue to be a priority for the Secretary.
Francesco.
QUESTION: Just to follow up on that, it was this building that (inaudible) spoke about those cases in Havana and then in China. Why aren’t you confirming for the sake of transparency where there are cases reported – if they are Havana syndrome or not, it’s another thing, but where there are reported incidents, why aren’t you doing that? And then I have another question on Cuba protest.
MR PRICE: So in many cases it is a matter of privacy of individuals, wanting to respect privacy. But let me just make clear that when cases have been reported, our posts overseas have communicated that clearly to the community within the embassy. We have also engaged – Brian McKeon has engaged with posts that have reported a number of anomalous health incidents. So it is not – certainly not – the case that we are ignoring this. We are just not speaking to the press, we’re speaking to our workforce, as you might expect when it comes to a matter of their health and safety and security.
GRRRR! STOP THAT BROKEN RECORD!
Excuse me, was I loud? That’s nice that they value the privacy of individuals.
Requesting a confirmation of reported cases at one post does not require that the State Department released the names of the affected individuals. Did it happen there or not? So how does that actually compromises employees’ privacy?
And while we’re on the subject of “when cases have been reported” … how many emails do employees need to send to how many entities within State/MED –MEDMR? MEDHART? MEDFART? MEDFUCKIT– before anyone get the courtesy of a response?
We regret to say this but there’s no shortage of opportunities for Foggy Bottom to disappoint these days.
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What’s happening at CA/OCS? Besides People Calling In to Yell at Staffers Working the Phones

 

Overseas Citizens Services (OCS) in the State Department’s Bureau of Consular Affairs is responsible for the protection and safety of U.S. citizens traveling and residing abroad. OCS has three offices: the Office of American Citizens Services and Crisis Management (OCS/ACS), the Office of Children’s Issues (OCS/CI), and the Office of Legal Affairs (OCS/L).

Billy Goat on Grass Field by Pixabay

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

 

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

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

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

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

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

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

 

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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:

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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Amb Arnie Chacon Heads to U.S. Mission Canada as Chargé d’Affaires (a.i)

13 Going on 14 — GFM: https://gofund.me/32671a27

 

So late Friday, the State Department announced the designation of Ambassador Arnie Chacon to be Chargé d’Affaires ad interim at U.S. Embassy Ottawa:

Today, Secretary Blinken designated Ambassador Arnold Chacon to serve as Chargé d’Affaires ad interim at U.S. Embassy Ottawa. A career diplomat with the rank of Career Minister, Ambassador Chacon is currently detailed from the Department of State to the National Defense University as Senior Vice President. Ambassador Chacon previously served as the Director General of the Foreign Service and Director of Human Resources and U.S. Ambassador to Guatemala.

Ambassador Chacon’s appointment underscores the United States’ strong commitment to Canada and the Canadian people. He will lead the U.S. government’s diplomatic engagement in Canada by advancing the Roadmap for a Renewed U.S.-Canada Partnership, including trade, climate change, COVID-19 response and recovery, and global and regional security issues.

The United States highly values its close partnership with Canada, and Ambassador Chacon is dedicated to advancing the bilateral relationship.

We’ve previously asked What’s going on at U.S. Mission Canada?
The State Department is just now sending out to Ottawa a former Ambassador (Guatemala) but also the former Director General of the Foreign Service to be CDA. He will be responsible for the embassy and its seven constituent posts as well.
👀
A top executive at the cable company Comcast has been rumored to be in the running to be Biden’s top diplomat for Canada. The announcement for the first slew of political ambassadorships is reportedly expected shortly.

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FS family members 14 and up are forcibly quarantined separately from their families in China?

13 Going on 14 — GFM: https://gofund.me/32671a27

 

Below from Sender A:
State is forcing teenage EFMs 14 and up to forcibly quarantine separately from their families in China. Imagine PCS’ing to a new post and being told the 14 year old child had to quarantine for two weeks alone in a hotel room separated from their parents. How did L sign off on this? This is a legal nightmare waiting to unfold. What 14 year old should be locked alone in a room for two weeks and have all their food brought to them…. no food delivery allowed. What if the child struggles from 14 days of isolation?

We’ve learned previously from a separate source that the Department is requiring employees to fulfill local quarantine rules on arrival in a country, as they apply to diplomats. That’s expected. It would not want the perception of skirting local rules amidst a global pandemic. Back in March, when Mainland China news alleged that the US staffers claimed diplomatic immunity to avoid quarantine in Hong Kong, the State Department pushed back and called it “absolutely false.”
A former ambassador pointed out that Article 41 of the Vienna Convention on Diplomatic Relations states that “Without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State.” The former official noted that under the normal course of events, an undertaking to quarantine within the embassy premises would normally be agreeable to the local authorities.
We understand that some countries have even waived them for diplomats or allowed diplomats to do it at their embassy quarters. We’re talking about quarantine at entry as opposed to an isolation required due to illness.  But not China. One source called its entry requirements, the “most onerous.” The quarantine is reportedly for all “regardless of test status.”  We were informed that this involves “something like 14 days in a hotel in the arrival city and then a stay at home for another 7 days in your destination city, with multiple tests along the way.”
The EAP bureau and Mission China were supposedly communicating to FS people relocating to China what the requirements are and what they should expect. The rules are “rigid and exacting” we were told.  We understand that a particularly egregious requirement is that couples have to quarantine separately. We were, however, told that the United States had supposedly “received earlier assurances” from the Chinese that in situation where kids are involved, at least one parent would be able to stay with the children.
So, if teens are now being quarantined alone, and separate from the parent/parents — what happened?
  • 1) Is this a case of arbitrary enforcement of local laws?
  • 2) If they’re separating 14 year olds from their parents for the quarantine, why is 14 the magic number?
  • 3) So the host country just now decided not to follow through with its prior assurances, why?
  • 4) Was this so unexpected EAP and Mission China did not get a chance to forewarn incoming FS families?
  • 5) Did State/L sign off on this? If yes, why?If not, what is it going to do about it – just let families bear it?
  • 6) USG and China must have exchanged Diplomatic Notes, what’s in it?
Excerpt from US Mission China’s COVID-19 Information updated on April 20, 2021:

All travelers, including U.S. citizens who enter China, are screened upon arrival and subject to a minimum 14-day quarantine. While restrictions around domestic travel within China have eased, local quarantine requirements can vary significantly between cities, and regulations can change very quickly. All international arrivals should be prepared to complete quarantine at a government-selected facility or hotel at their own expense, with no control over the amenities, even if they maintain a residence in China. Cities and provinces within China may also require quarantine for domestic travelers, regardless of nationality.

The US Consulate General in Hong Kong has an update dated May 10:

Starting May 12, 2012, fully vaccinated individuals will be able to reduce their quarantine by 7 days. Fully vaccinated travelers from the United States will complete 14 days in a designated quarantine hotel and then self-monitor the remaining 7 days. For full information about reduced quarantine, please see the Hong Kong government’s press release.

When we previously blogged about quarantine, the former ambassador also pointed out that our relations with the Chinese “have involved scapegoating them for their failure instantly to recognize and act to control the outbreak of COVID-19 in Wuhan, coupled with all sorts of conspiracy theories and uncouth accusations by our former secretary of state and others.  So, it would not be surprising that they would not cut us much slack.”
What else is going on between US and China the last couple of months?
On April 8, 2021, the Department of Commerce’s Bureau of Industry and Security (BIS) added seven Chinese supercomputing entities to the Entity List for conducting activities that are contrary to the national security or foreign policy interests of the United States.
On May 10, the SFRC approved S. 1169 Strategic Competition Act of 2021 signaling bipartisan support in “laying out a strategic approach towards Beijing – and assuring that the United States is positioned to compete with China across all dimensions of national and international power for decades to come”.

 

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