CIA’s Interim Report on Havana Syndrome Issued, Have You Read It? #AskMollyHale

 

NYT reports that the C.I.A. has found that “most cases of the mysterious ailments known as Havana syndrome are unlikely to have been caused by Russia or another foreign adversary, agency officials said, a conclusion that angered victims.”  CIA officials describing the interim findings to reporters also say that “A majority of the 1,000 cases reported to the government can be explained by environmental causes, undiagnosed medical conditions or stress, rather than a sustained global campaign by a foreign power.”
Politico writes that “CIA Director William Burns stands behind the current finding, but made clear the probe continues with an indefinite timeline.
“While we have reached some significant interim findings, we are not done,” Burns said in a statement. “We will continue the mission to investigate these incidents and provide access to world-class care for those who need it. While underlying causes may differ, our officers are suffering real symptoms. Our commitment to care is unwavering.”
A group of Havana Syndrome victims have reportedly released a statement criticizing the report while the investigation is ongoing. We haven’t seen the report. It looks like CIA officials are talking to the media discussing the findings of the interim report but the interim report itself has not been made available for the public to read.

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US Embassy Abu Dhabi Issues Security Alert Following Suspected Drone Attacks in UAE

 

On January 17, the US Embassy in Abu Dhabi issued a Security Alert following the suspected drone attacks at two locations in the country and reminded U.S. citizens to “maintain a high level of security awareness.”

Location: UAE, Abu Dhabi

    • Musaffah Industrial Area, and
    • A construction site at the new terminal of the Abu Dhabi airport.

Event: There have been reports of explosions at the Musaffah Industrial Area in Abu Dhabi and a fire at the new terminal of the Abu Dhabi airport on January 17, 2022.  Media reports indicate that both incidents were potentially caused by unmanned aerial systems (drones) in the area.  The Embassy reminds all U.S. citizens in the United Arab Emirates to maintain a high level of security awareness.  The possibility of terrorist attacks against U.S. citizens and interests in the Gulf and Arabian Peninsula remains an ongoing, serious concern.  Rebel groups operating in Yemen have stated an intent to attack neighboring countries, including the UAE, using missiles and unmanned aerial systems (drones).

The United States Embassy in Abu Dhabi is currently headed by Sean Murphy as Chargé d’Affaires. Mr. Murphy holds the rank of Minister Counselor in the United States Foreign Service. It doesn’t look like the Biden Administration has made an announcement on a nominee to be U.S. Ambassador for UAE.

 

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USCG Almaty on Voluntary Departure For Non-Emergency USG Staff/Family Members

 

On Friday, January 7, 2022, the State Department issued a Level 4 Do Not Travel Advisory for Kazakhstan due to COVID-19 and civil unrest. It also announced that the Department approved the voluntary departure of Consulate General Almaty non-emergency U.S. government employees and family members of all Consulate General Almaty U.S. government employees.
On Saturday, January 8, US Mission Kazakhstan issued a Security Alert for U.S. citizens in the country announcing the voluntary evacuation of non-emergency USG staff and family members at the Consulate General in Almaty. The Alert also advised U.S. citizens in country to shelter in place if a safe departure is not possible:

The U.S. government has authorized the voluntary departure of non-emergency personnel and family members at the U.S. Consulate General in Almaty.  

U.S. citizens in Almaty are advised to shelter in place until safe departure is possible.  Avoid standing next to balconies or windows and stay indoors unless absolutely necessary.  Further, all U.S. citizens in Kazakhstan are advised to avoid crowds or demonstrations.

A nationwide state of emergency and curfew is in place between the hours of 11pm and 7am and will remain in effect until January 19.  Expect security checkpoints controlling access to population centers, public transport disruptions, and limitations on movement throughout the country.  Overland border crossing to neighboring countries may not be possible or safe at this time, and access to fuel may be limited.

Unrest in Almaty continues, and there were reports of gunfire overnight and ongoing direct conflict between armed groups and Kazakhstani government forces. Widespread flight and train disruptions continue, and there are cancellations on both domestic and international routes.  Almaty airport and railway stations are currently closed.  You are advised to check with your airline to confirm your flight and reminded to avoid travel during curfew hours.

Communications services countrywide have been limited and internet restrictions continue.  However, the government of Kazakhstan reports that access to limited news outlets has been restored.  Disruptions to internet access may continue to impact other services such as banking, credit card transactions, and COVID-19 testing.  Coordinate with your medical provider to determine testing availability.

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FSGB: Requests For Discovery Fail For Imposition of “Undue Burden on the Department”

 

Via FSGB Case No. 2021-015/November 22, 2021-Order Motion to Compel
Grievant is an untenured FP‐04 consular coned officer. She has been reviewed for tenure by two Commissioning and Tenure Boards (“CTB”), the second of which recommended her for tenure; that recommendation was suspended while the Department investigated the events giving rise to this grievance.
Her grievance concerns a disciplinary proposal arising from events that took place when she was performing passport and citizenship services at a post abroad in July 2017. The Department has proposed a 4‐day suspension for charges of Misuse of Position, with three specifications, resulting from her action in sending, or attempting to send, a photo of a naked baby contained in a Consular Report of Birth Abroad (“CRBA”) file to her mother and sister, and two specifications of Poor Judgment; one for orally discussing said baby’s genitals with consular staff and a second for asking parents of CRBA applicants for photographs of her with their babies
Grievant admits the facts underlying the proposed discipline, although she alleges that she was harmed by bias and lack of counseling on the part of her supervisor and has expressed remorse for the poor judgment displayed in these instances.
However, she alleges that the penalties are disproportionate and unfairly harsh because they will effectively end her career. She argues that, unlike the individuals in the comparator cases, she is an untenured officer, and that having a suspension letter in her performance file for two years, three years into her limited career appointment, eliminates any chance of a renewed recommendation for tenure despite otherwise exemplary performance and the strong recommendations of her raters and reviewers. She further contends that because she is on a five year Limited Career Appointment as an untenured officer, undue delay in the investigation and disciplinary process, in particular a two-year gap between the completion of the investigation of the complaint by Diplomatic Security and the proposal for discipline, has harmed her by precluding any future board from considering her file absent the suspension letter.
Grievant filed a Motion to Compel on August 16, 2021, seeking full Department response to two requests for production of documents.
[…]
Additional details from ROP:

We set out below the two requests in dispute together with the respective positions of the parties.

a. Discovery Request 3: Without revealing any information protected by the Privacy Act, please provide the following information:

a. In the last ten years, how many untenured career candidates have been proposed for any action between an admonishment and a five day suspension?

b. Of those employees, how many actions were sustained as admonishments, how many as reprimands, and how many as suspensions?

c. Of those that received reprimands and suspensions, how many were deferred and/or denied tenure at least once?

d. Of those that received reprimands or suspensions, how many were actually recommended for tenure with the decision letter in their files?

e. Of those that received reprimands and suspensions, how many failed to achieve tenure?

b. Discovery Request 4: Without revealing any information protected by the Privacy Act, please provide redacted copies of Department proposal letters, decision letters and Douglas factor checklists for those cases of untenured career candidates proposed for disciplinary action up to and including five days’ suspension, within the last ten years referred to in request 3 above.
[…]

This Board has in the past denied requests for discovery that require extensive research and analysis of the files of unrelated individuals in pursuit of a statistical or other correlation.

See FSGB Case No. 2014-026 (Order dated April 26, 2015). Grievant’s argument that the Department, because it reports denial of tenure and disciplinary statistics separately to AFSA, must also keep records of the relationship between disciplinary proposals and tenure, both
statistically and with respect to each individual affected, or alternatively that the information she requests should be readily available, is largely speculative and unsupported by preponderant evidence. We therefore find that, taken together, the resources required to respond to these two requests outweigh the likely materiality of the information produced. Grievant’s Motion to Compel is denied.

 

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Senate Cuts Loose 44 @StateDept/USAID Hostages, Two FS Lists Before Running Out the Door

 

The Senate adjourned for the holiday break early morning Saturday at 4:04am ET. The Senate returns on Monday, January 3, 2022 for the beginning of the 2nd session of the 117th Congress.
Except for Rahm Emanuel (nominee for Japan) and Atul Atmaram Gawande (nominee for USAID), all nominations in this group were confirmed via voice vote. See, it wasn’t hard, was it?
Many more nominees are stuck in super glue in the Senate’s Executive Calendar. Over 50 more are pending in Committee. We don’t know how many will require renominations in January.
We expect that some senators will continue to play the game of hold next year because there are no consequences from voters for these actions. Politico’s Global Insider on December 17 notes that the confirmation mess will continue to grow. Apparently, some nominees were even told by the administration to “lobby for themselves.” What-the-what? Happy holidays and that’s not in$$$ane at all!

AMBASSADORSHIPS: CAREER FOREIGN SERVICE

2021-12-18 PN377 ALGERIA – Elizabeth Moore Aubin, of Virginia, a Career Member of the Senior Foreign Service, Class of Minister-Counselor, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the People’s Democratic Republic of Algeria.

2021-12-18 PN382 ANGOLA/SAO TOME AND PRINCIPE – Tulinabo S. Mushingi, of Virginia, a Career Member of the Senior Foreign Service, Class of Counselor, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Republic of Angola, and to serve concurrently and without additional compensation as Ambassador Extraordinary and Plenipotentiary of the United States of America to the Democratic Republic of Sao Tome and Principe.

2021-12-18 PN378 BAHRAIN – Steven C. Bondy, of New Jersey, a Career Member of the Senior Foreign Service, Class of Minister-Counselor, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Kingdom of Bahrain.

2021-12-18 PN786 BANGLADESH – Peter D. Haas, of Virginia, a Career Member of the Senior Foreign Service, Class of Minister-Counselor, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the People’s Republic of Bangladesh.

2021-12-18 PN1009 BENIN – Brian Wesley Shukan, of Virginia, a Career Member of the Senior Foreign Service, Class of Minister-Counselor, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Republic of Benin.

2021-12-18 PN911 BOSNIA AND HERZEGOVINA – Michael J. Murphy, of New York, a Career Member of the Senior Foreign Service, Class of Minister-Counselor, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to Bosnia and Herzegovina.

2021-12-18 PN910 BRUNEI – Caryn R. McClelland, of California, a Career Member of the Senior Foreign Service, Class of Minister-Counselor, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to Brunei Darussalam.

2021-12-18 PN732 THE GAMBIA – Sharon L. Cromer, of New York, a Career Member of the Senior Foreign Service, Class of Career Minister, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Republic of The Gambia.

2021-12-18 PN381 CAMEROON – Christopher John Lamora, of Rhode Island, a Career Member of the Senior Foreign Service, Class of Minister-Counselor, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Republic of Cameroon.

2021-12-18 PN937 CENTRAL AFRICAN REPUBLIC – Patricia Mahoney, of Virginia, a Career Member of the Senior Foreign Service, Class of Minister-Counselor, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Central African Republic.

2021-12-18 PN417 REPUBLIC OF THE CONGO – Eugene S. Young, of New York, a Career Member of the Senior Foreign Service, Class of Minister-Counselor, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Republic of the Congo.

2021-12-18 PN1033 EQUATORIAL GUINEA – David R. Gilmour, of the District of Columbia, a Career Member of the Senior Foreign Service, Class of Minister-Counselor, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Republic of Equatorial Guinea.

2021-12-18 PN733 GUINEA – Troy Damian Fitrell, of Virginia, a Career Member of the Senior Foreign Service, Class of Counselor, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Republic of Guinea.

2021-12-18 PN379 LESOTHO – Maria E. Brewer, of Virginia, a Career Member of the Senior Foreign Service, Class of Minister-Counselor, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Kingdom of Lesotho.

2021-12-18 PN873 MOLDOVA – Kent Doyle Logsdon, of Pennsylvania, a Career Member of the Senior Foreign Service, Class of Minister-Counselor, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Republic of Moldova.

2021-12-18 PN939 MOZAMBIQUE – Peter Hendrick Vrooman, of New York, a Career Member of the Senior Foreign Service, Class of Minister-Counselor, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Republic of Mozambique.

2021-12-18 PN383 SENEGAL/GUINEA-BISSAU – Michael Raynor, of Maryland, a Career Member of the Senior Foreign Service, Class of Minister-Counselor, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Republic of Senegal, and to serve concurrently and without additional compensation as Ambassador Extraordinary and Plenipotentiary of the United States of America to the Republic of Guinea-Bissau.

2021-12-18 PN376 SOMALIA – Larry Edward Andre, Jr., of Texas, a Career Member of the Senior Foreign Service, Class of Minister-Counselor, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Federal Republic of Somalia.

2021-12-18 PN897 SRI LANKA – Julie Chung, of California, a Career Member of the Senior Foreign Service, Class of Minister-Counselor, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Democratic Socialist Republic of Sri Lanka.

2021-12-18 PN1005 TOGOLESE REPUBLIC – Elizabeth Anne Noseworthy Fitzsimmons, of Delaware, a Career Member of the Senior Foreign Service, Class of Minister-Counselor, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Togolese Republic.

2021-12-18 PN380 VIETNAM – Marc Evans Knapper, of California, a Career Member of the Senior Foreign Service, Class of Minister-Counselor, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Socialist Republic of Vietnam.

AMBASSADORSHIP: CAREER EXECUTIVE SERVICE

2021-12-18 PN734 PARAGUAY – Marc Ostfield, of Pennsylvania, a Career Member of the Senior Executive Service, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Republic of Paraguay.

AMBASSADORSHIPS: NON-CAREER/POLITICAL APPOINTEES

2021-12-18 PN1029 ARGENTINA – Marc R. Stanley, of Texas, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Argentine Republic.

2021-12-18 PN1225 BELGIUM – Michael M. Adler, of Florida, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Kingdom of Belgium.

2021-12-18 PN738 COSTA RICA – Cynthia Ann Telles, of California, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Republic of Costa Rica.

2021-12-18 PN785 FRANCE/MONACO – Denise Campbell Bauer, of California, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the French Republic, and to serve concurrently and without additional compensation as Ambassador Extraordinary and Plenipotentiary of the United States of America to the Principality of Monaco.

2021-12-18 PN774 IRELAND – Claire D. Cronin, of Massachusetts, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to Ireland.

2021-12-18 PN1004 POLAND – Mark Brzezinski, of Virginia, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Republic of Poland.

2021-12-18 PN938 SPAIN/ANDORRA – Julissa Reynoso Pantaleon, of New York, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Kingdom of Spain, and to serve concurrently and without additional compensation as Ambassador Extraordinary and Plenipotentiary of the United States of America to the Principality of Andorra.

2021-12-18 PN958 SLOVENIA – Jamie L. Harpootlian, of South Carolina, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Republic of Slovenia.

2021-12-18 PN1226 SWEDEN – Erik D. Ramanathan, of Massachusetts, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Kingdom of Sweden.

2021-12-18 PN1030 SWITZERLAND/LIECHTENSTEIN – Scott Miller, of Colorado, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to the Swiss Confederation, and to serve concurrently and without additional compensation as Ambassador Extraordinary and Plenipotentiary of the United States of America to the Principality of Liechtenstein.

2021-12-18 PN1058 JAPAN – Rahm Emanuel, of Illinois, to be Ambassador Extraordinary and Plenipotentiary of the United States of America to Japan.

STATE DEPARTMENT

2021-12-18 PN922 MANAGEMENT – John R. Bass, of New York, a Career Member of the Senior Foreign Service, Class of Career Minister, to be an Under Secretary of State (Management).

2021-12-18 PN384 STATE/IO – Michele Jeanne Sison, of Maryland, a Career Member of the Senior Foreign Service, Class of Career Ambassador, to be an Assistant Secretary of State (International Organization Affairs).

2021-12-18 PN616 STATE/PROTOCOL – Rufus Gifford, of Massachusetts, to be Chief of Protocol, and to have the rank of Ambassador during his tenure of service.

2021-12-18 PN547 Department of State – Adam Scheinman, of Virginia, to be Special Representative of the President for Nuclear Nonproliferation, with the rank of Ambassador.

2021-12-18 PN776 Department of State – Bathsheba Nell Crocker, of the District of Columbia, to be Representative of the United States of America to the Office of the United Nations and Other International Organizations in Geneva, with the rank of Ambassador.

2021-12-18 PN781 Department of State – Jack A. Markell, of Delaware, to be Representative of the United States of America to the Organization for Economic Cooperation and Development, with the rank of Ambassador.

2021-12-18 PN552 Department of State – Christopher P. Lu, of Virginia, to be Representative of the United States of America to the United Nations for U.N. Management and Reform, with the rank of Ambassador.

2021-12-18 PN553 Department of State – Christopher P. Lu, of Virginia, to be an Alternate Representative of the United States of America to the Sessions of the General Assembly of the United Nations, during his tenure of service as Representative of the United States of America to the United Nations for U.N. Management and Reform.

2021-12-18 PN934 Department of State – Mark Gitenstein, of Washington, to be Representative of the United States of America to the European Union, with the rank and status of Ambassador Extraordinary and Plenipotentiary.

2021-12-18 PN935 Department of State – Laura S. H. Holgate, of Virginia, to be Representative of the United States of America to the Vienna Office of the United Nations, with the rank of Ambassador.

 

USAID

2021-12-18 PN415 Marcela Escobari, of Massachusetts, to be an Assistant Administrator of the United States Agency for International Development.

2021-12-17 PN874 Atul Atmaram Gawande, of Massachusetts, to be an Assistant Administrator of the United States Agency for International Development.

FOREIGN SERVICE LISTS

2021-12-16 PN726 Foreign Service | Nominations beginning Arthur W. Brown, and ending Peter C. Trenchard, which 35 nominations were received by the Senate and appeared in the Congressional Record on June 22, 2021.

2021-12-16 PN728-1 Foreign Service | Nominations beginning Rahel Aboye, and ending Kyra Turner Zogbekor, which 153 nominations were received by the Senate and appeared in the Congressional Record on June 22, 2021.

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Related post:

 

Around the World in Tweets: Special Envoys, and a Running List For Future Special Envoys

 

 

 

PERHAPS COMING SOON:

 

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@StateDept Fails in FSGB Defense Over Coersive (Unlawful) Curtailment

 

The FSGB found that the State Department committed in prohibited personnel practice (“PPP”) violation of 5 U.S.C. § 2302(b)(4) against an FS employee stationed overseas when it coerced his curtailment from post. The Board also found that the curtailment in this case failed to comply with 3 FAM 2443.2. This case is horrifying in how carelessly embassy officials can chuck anyone out the airlock.
Also see FSGB: When Voluntary Curtailment Is NOT Truly Voluntary
According to the FSGB ROP, the Department questioned “whether 5 U.S.C § 2302 applies to Foreign Service Officers, because Title 5 of the U. S. Code applies only to Civil Service Employees.15 However, it concludes that, assuming the provision applies, there is no evidence to support the finding of a violation”.
The Board’s decision says “we address the Department’s question of whether Foreign Service Officers are protected against prohibited personnel practices. […] Under Section 105 (b)(2)(B)(4) of the Foreign Service Act of 1980, all FS members are free from any personnel practice prohibited by 5 U.S.C. § 2302. […] we find that PPP protections apply to Foreign Service Officers under Section 105 of the FSA.
The oldest executive agency then argued before the Grievance Board that the Senior Regional Security Officer’s alleged statement that “all this would go away,” while putting his hand on the investigatory file, “could have merely meant the file itself would be gone or that the Ambassador’s determination to involuntarily curtail him would be obviated by his decision to voluntarily curtail.”
And get this, the Department concludes that the “vague statement” by the SRSO was not deceitful.”
The Department also argued that grievant has “failed to meet his burden to show that the SRSO knew that his statement was untrue or that he acted with an intent to mislead grievant.”
Oh, lordy!
Then covering all its bases — “even assuming that the statement was deceitful, the Department contends that Section 2302(b)(4) only applies to “competition for employment,” which is limited to hiring and promotions and does not apply to the retention of employment.14  Although curtailment is an assignment, it is not a process of hiring or promotion.”
The Department agreed that “it committed a harmless error of its curtailment procedures.”
It sure wasn’t “harmless” on the affected employee and his family, was it?
The FSGB did not buy it.

It is clear that the Board’s analysis found that the SRSO engaged in deceit. The statute prohibits “deceit or willful obstruction.” While obstruction is defined as willful, the drafters did not see a need to use the adjective with deceit. Deceit is willful; it is not negligent or inadvertent.

The Board includes “deceit” in the footnotes:

26 Black’s Law Dictionary (10th ed, 2014) defines deceit: “1. The act of intentionally leading someone to believe something that is not true; an act designed to deceive or trick. 2. A false statement of fact made by a person knowingly or recklessly (i.e., not caring whether it is true or false) with the intent that someone else will act on it. 3. A tort arising from a false representation made knowingly or recklessly with the intent that another person should detrimentally rely on it.”

On curtailments, the Department notes that “under 3 FAM 2443.2(a), the Chief of Mission (COM) has discretion to determine curtailment when it would be in the best interest of the post. While the COM must follow procedures, there is no evidentiary standard, and the curtailment procedures do not require the same rigor as the disciplinary process.”
The Department then makes a shocking or maybe not really a shocking admission:

“..there were serious allegations against grievant, and the COM was not required to determine whether they were true, but only if the curtailment was in the best interests of the post.”

Wait, what? So anyone could make a claim, state an allegation, anyone could start a rumor, and COM is not required to determine whether they were true? How bonkers is that?
Via Record of Proceedings
FSGB Case No. 2019030 | September 29, 2021

The Department’s MFR seeks reconsideration of the Order on two grounds. The first ground for reconsideration is that the Department claims that the Board committed “clear error” by failing to find evidence of two essential elements of a prohibited personnel practice (“PPP”), in violation of 5 U.S.C. § 2302(b)(4), despite finding that the Department committed a PPP. The missing elements, according to the Department, are – a willful or deliberate deception and a competition for a position. The second basis for reconsideration is that the Department claims that the Board committed “clear error” by conflating the curtailment and discipline procedures when it failed to remand to the Department the question of whether it would have curtailed grievant absent the procedural error by failing to follow the Department’s curtailment regulations.

Grievant, an FS-02 Security Engineering Officer (“SEO”), served as the Deputy Officer in Charge (“DOIC”) of the Department’s Engineering Services Office (“ESO”) at the U.S. Embassy in REDACTED (“post”) from August 2016 to January 18, 2017. His rater was the Officer-in-Charge (“OIC”), and his reviewer was the Senior Regional Security Officer (“SRSO”).

The incident that led to a preliminary investigation of the grievant and, subsequently, an in-depth investigation of him by the Office of Civil Rights (“S/OCR”), is an alleged threat made by grievant at the end of December 2016. On January 10, 2017,1 a supervisee claimed that grievant had made an implied threat of physical violence to him, and the SRSO assigned the Assistant Regional Security Officer (“the ARSO”) to investigate and notified the Bureau of Diplomatic Security (“DS”), Office of Special Investigation (“DS/DO/OSI”). On January 12, post management briefed the Ambassador, who decided to exercise his authority under 16 STATE 27226 to curtail grievant from post. Later that day, January 12, the SRSO, grievant’s reviewing officer, held a meeting with grievant, two Human Resource Officers, and grievant’s rater and told grievant that the Ambassador had decided that he would be involuntarily curtailed if he did not voluntarily curtail, and if he voluntarily curtailed, “all of this,” gesturing to the investigative file, “would go away and it would be as if he had been curtailed for family reasons.”2

But the investigation did not, in fact, “go away.”

On January 14, the ARSO issued an RSO Report, which the Accountability and Suitability Board (“A&SB”), which included the SRSO, discussed that day with the Ambassador. The case was referred to the Department of State’s Office of Civil Rights (S/OCR) that same day. On January 16, the Management Counselor prepared a Decision Memorandum (“Decision Memo”) in Support of No-Fault Curtailment, which was sent to the front office. A day later, on January 17, grievant met with the HRO at post and formally accepted a “voluntary curtailment,” and management approved his request that day. On January 18, Grievant curtailed without having been advised of the ARSO’s report or of the referrals to S/OCR and to
DS/DO/OSI.
[…]
GTM/ER proposed to suspend grievant on a single charge of Improper Comments, with three specifications. The Deciding Official (“DO”) sustained only two of these specifications, both dealing with alleged threats. With the dismissal of the third specification, all potential EEO violations were dismissed. The DO reduced the penalty from a two-day to a one-day suspension.”5

Grievant filed an agency-level grievance, alleging that the one-day suspension violated regulations; that his 2017 Employee Evaluation Report (“EER”) contained a falsely prejudicial statement based on the charge; that the RSO Report contained a falsely prejudicial statement that he had been counseled for anger management; that his curtailment was coerced and unlawful under 12 STATE 27212 (“Curtailment of Employee Based on Conduct or Disciplinary Issues”); and that his assignment to a non-supervisory, overcomplement6 position was based on a PPP. The grievance was denied by the Department.

Board found that the Department committed a PPP, in violation of 5 U.S.C. § 2302(b)(4). […]Moreover, even without the PPP finding, the Board found that the curtailment failed to comply with 3 FAM 2443.2, and the Department does not challenge that finding.

[…]
By inducing grievant’s “voluntary curtailment” on an unenforceable assurance, post avoided going through the procedural safeguards of 3 FAM 2443.2, which apply to voluntary curtailments that are initiated at the request of the COM. What the Department does not acknowledge is that the SRSO (importantly, grievant’s reviewing official, the official who had directed the ARSO’s investigation and notified DS/DO/OSI and a member of the A&SB advising the Ambassador) told grievant that if he voluntarily curtailed, it would be “as if he curtailed for family reasons.” That would mean a curtailment under 3 FAM 2443.1 with no prospect of discipline.

The Board denied in full the Department’s Second Motion for Reconsideration and issued six other orders related to back pay, reconstituted Selection Boards, promotion, and interest on back pay.
The Board ordered remedies for violations of 3 FAM 2443.2 and 5 U.S.C. § 2302(b)(4) , remedies for falsely prejudicial language in Grievant’s EER; attorney’s fees request is held in abeyance until final resolution of the remedies.
The remedies ordered include:

2. The Department shall pay grievant “an amount equal to all, or any part of the pay, allowances, or differentials [including overtime], as applicable, which [he] normally would have earned or received” during the period of 18 ½ months of the remainder of his posting at post, had he not been improperly curtailed, less any amounts he earned through other employment during that period, pursuant to 5 U.S.C. § 5596(b)(1)(A)(i), 5 C.F.R. 550, Subpart H..

4. The Department shall hold four reconstituted Selection Boards for the years when grievant’s OPF contained the uncorrected 2017 EER.

5. If grievant is promoted by any of the reconstituted SBs, the promotion should beretroactive to the date a promotion would have been implemented by the SB for which it was reconstituted. The Department shall pay the wage differential from the date of any retroactive promotion.

6. The Department shall pay interest on any back pay awards due under this order.

The conduct of these government representatives at this post should be labeled “notoriously disgraceful conduct”. And the State Department should be shamed for defending this type of unacceptable behavior.  Oh, please don’t tell us these people all got promoted!
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FSGB: When Voluntary Curtailment Is NOT Truly Voluntary

 

This is part 1 of two parts we want to post about this specific grievance case. We want to highlight this part of the curtailment process that’s called “voluntary” because it was not a voluntary one, but a “coerced voluntary curtailment”. We have no idea who are the individuals involved in this case, of course, but we are aware of how the so called “voluntary” curtailment has been misused and far from being voluntary in other cases in the past.
The chief of mission was supposed to “ensure that rigorous standards apply to curtailment requests.” Whatever standards were applied in this case could not be called rigorous by any stretch of the imagination. Good grief, the ARSO wrote a false report! As if that was not enough, a supervisor engaged in deceitful behavior. And State basically shrugged its admirable shoulders, and said who cares?
Record of Proceedings
FSGB Case No. 2019030 | September 30, 2020
INTERIM DECISION  (CORRECTED 10/05/2020)

We find here that the procedures for curtailing grievant violated 3 FAM 2443.2. The due process provisions of the regulation were not
followed. Grievant was given an ultimatum to voluntarily curtail, or he would be involuntarily curtailed, when the Ambassador had limited information and the grievant had not been given any of the due process rights outlined in 3 FAM 2443.2 and the guideline cables provided below.
The applicable FAM, 3 FAM 2443.2 Involuntary Curtailment at Request of Chief of Mission, reads:

a. If the chief of mission determines that curtailment of an employee’s tour of duty would be in the best interests of the post [or] the employee, the chief of mission may ask that the employee’s tour of duty be curtailed immediately.

b. If the employee is an employee of the Department of State, the chief of mission should submit a request through the DIRGEN [Director General] channel to the Director General of the Foreign Service requesting curtailment of the employee. The request must:


(1) Include background information on any incidents that support the request;

(2) Confirm that the employee has been informed of the request and the reasons therefore; and

(3) Confirm that the employee has been advised that he or she may submit comments separately.


c. If the employee requests curtailment, the chief of mission should use the DIRGEN channel to:


(1) Inform the Director General of the chief of mission’s support of the employee’s request; and

(2) Explain fully the circumstances that, in the chief of mission’s judgment, justify immediate curtailment.


d. Except in cases of serious misconduct, criminal activities, or actions that have serious security implications, a chief of mission may offer the employee the alternative of submitting a request for immediate voluntary curtailment. If the employee is an employee of another agency, the request should be submitted to [their appropriate officials]. … The same supporting information required in 3 FAM 2443.2 should be used in requesting curtailment.57

According to the Decision Memo, the Ambassador invoked 16 STATE 27226, issued on March 14, 2016, Chief of Mission Instructions Regarding Conduct and Discipline Abroad, to determine that curtailment was necessary in this case. The summary describes the cable as the
first of two issued that date to provide guidance on conduct and discipline issues. The cable notes that COMs have full legal authority for the supervision of all government executive branch employees in that country.

The other memo issued on the same date, 16 STATE 27212, Curtailment of Employees Based on Conduct and Disciplinary Issues (Checklist), provides detailed procedures for handling curtailments. Among the relevant paragraphs are:

Par. 1. Curtailment may include the employee’s immediate departure from post, and can be voluntary or involuntary. As COM, you must ensure that rigorous standards apply to curtailment requests. Curtailments disrupt lives of employees and entail high professional and monetary cost from the Service in terms of lost productivity, service, and frequently, investment in training. Therefore, this authority must be used with judicious care and restraint.

Par. 2. If you, as COM, determine that curtailment of an employee’s tour of duty would be in the best interests of the post [or] the Service … you may request that the employee’s tour of duty be curtailed immediately. Per 3 FAM 2443.2, you should submit a request through the DIRGEN [Director General] channel to the Director General of the Foreign Service. The curtailment cable request must:

o include background information on any incidents that support the request;

o confirm that the employee has been informed of the request and the reasons therefor; and

o confirm that the employee has been advised that he or she may submit comments separately.

..HR strongly encourages post to share the request cable with the employee so the employee has the full report on which he/she can send comments.

Par. 3. Except in cases of serious misconduct, … you may offer the employee the option to request immediate voluntary curtailment in lieu of involuntary curtailment. If the employee requests voluntary curtailment, he/she should request immediate curtailment through the HR channel in a message addressed to his/her Career Development Officer (CDO) in HR/CDA (see para. 19 [checklist]). As COM, please ensure that you use the DIRGEN channel to confirm your support, or opposition to, the employee’s request and explain fully the circumstances that justify immediate curtailment.


Par. 13. Curtailments should first be vetted by a management team at post. …. Proper vetting throughout the process then allows the COM to be better able to determine whether to move forward with the curtailment request.


Par. 14. In all cases, the DIRGEN cable must include background information on the incident (s) that supports post’s decision. Except for cases of directed curtailment, the cable must confirm that the COM has discussed the proposed action with the employee and also confirm that he/she may submit separately, either by cable via the DIRGEN channel or email to the DG Direct e-mail address, any comments about the curtailment. HR will not approve any curtailment request that comes without supporting information.

Par. 19. D. [H]as the employee had the opportunity to discuss the situation with the DCM?


Par. 20. As applicable, the above elements should be addressed in a DIRGEN cable. The Department is committed to making the curtailment system work for the good of the Service and our employees, protecting both the authority of management and the rights of employees.

Grievant’s decision to curtail was not truly voluntary. Grievant did not initiate the curtailment. The Ambassador, according to what the RSO and HR told grievant on January 12, had decided that grievant had a choice to either curtail voluntarily or involuntarily. In doing so, he was exercising his right under 3 FAM 2443.2d to give the employee the option of taking a voluntary curtailment in lieu of an involuntary one. Given that ultimatum, the only way to prevent the potential adverse career effect was to choose “voluntary” curtailment. According to grievant, he was also given the inducement that if he chose “voluntary” curtailment, “all this,” which he could reasonably understand to mean any type of charge against him, would be withdrawn. Given the lack of denials, we credit grievant that this statement was made. Yet we know that, on January 14, before the curtailment took effect, the ROI had been closed without action by DS and referred to S/OCR. The case was not going away.

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FSGB Grievant Asks @StateDept “Which Surnames Qualified as “Hispanic Surnames” #Census #Google

 

Via Record of Proceedings
FSGB Case No. 2020053 | October 22, 2021

I. BACKGROUND
The background of this case is described in detail in the June 17, 2021, Order: Motion to Compel issued by the Foreign Service Grievance Board (“FSGB” or the “Board”). That Order required the Department to provide additional responses to grievant’s initial discovery requests including grievant’s Interrogatory #1 which sought disaggregated statistics on rates of tenure for Foreign Service Generalist career candidates with Hispanic surnames who were considered for tenure during a specified five-year period, as compared with the tenure rate for other candidates.

On July 7, 2021, the Department responded to grievant’s Interrogatory #1.

Grievant was dissatisfied with the response and on July 14, 2021, he requested clarification of how the Department determined which surnames were Hispanic. The Department responded the same day, explaining how it had determined which surnames were Hispanic.

On July 27, 2021, grievant made a follow-on discovery request, seeking a list of the surnames the Department determined to be Hispanic and a list of the surnames of the candidates who had non-Hispanic surnames and were denied tenure.

On August 25, 2021, the Department objected to grievant’s July 27, 2021 request. The parties met and conferred on grievant’s discovery request and the Department’s objection, without reaching agreement.

In a motion to compel, the burden is on the requesting party to prove the merits of the motion. FSGB Case No. 2016-027 (Order, dated October 28, 2016); FSGB Case No. 2011-013 (Order, dated September 28, 2011).

Excerpt:

B. SECOND MOTION TO COMPEL

Interrogatory #1
Interrogatory #1 states as follows:

Please provide disaggregated statistics on rates of tenure for minority Foreign Service Generalists as compared to white Foreign Service Generalists between March 9, 2014 and March 4, 2019.

Department’s Response:
On July 7, 2021, The Department provided the following data for Foreign Service Generalist Tenure Candidates reviewed from March 2014-March 2019:

Candidates with Hispanic Surnames – 108
3 denied tenure = 2.8%

105 recommended for tenure = 97.2%


Candidates with non-Hispanic Surnames – 1871

48 denied tenure = 2.6%

1823 recommended for tenure = 97.4%

Grievant asked the Department how it determined which surnames qualified as “Hispanic surnames.”

Department’s Response to Request for Clarification

The Department responded that it accessed publicly available 2010 Census data and “pulled the record of last names where more than 50% of respondents by that name identified as being Hispanic.” There were 199 Hispanic surnames on the Census list and the Department cross-referenced those names with the cumulative list of tenure candidates. The Department then looked at all of the remaining names and identified other Hispanic surnames that did not appear on the Census list. To confirm, the Department checked those names for Spanish/Hispanic origin via Google search. Lastly, the Department checked a random assortment of the remaining names on the list of tenure candidates to confirm that they were other than Hispanic.

Relevance of the Follow-On Interrogatory

In the instant case, grievant alleges that the CTB discriminated against him because of his Hispanic surnames. Grievant has not alleged that he has direct evidence, relying entirely on statistics. To establish a prima facie case based on statistics, grievant must establish that Hispanic surnamed candidates were tenured at a statistically significantly lower rate than non-Hispanic surnamed candidates. Accordingly, the surnames of the candidates who were tenured, and those who were denied tenure, clearly are relevant to grievant’s claim, just as the gender of candidates would be relevant to a claim of sex discrimination.
[…]
the Privacy Act does not prohibit disclosure of Human Resources information about comparator employees to a grievant if ordered by the Board.
[…]
The Board has determined that grievant is entitled to know what surnames are considered Hispanic for purposes of the Department’s discovery responses. At the same time, the other candidates deserve privacy regarding their tenuring decisions. To accommodate those competing interests, the Board will order the Department to respond anew to grievant’s Interrogatory #1, as set forth in Section IV, infra.

IV. ORDER

Grievant’s Second Motion to Compel is granted in part and denied in part, as follows:

1. Within 14 days of this Order, the Department shall email grievant the list of 199 Hispanic surnames the Department previously identified from the Census data.

2. Within 14 days of the Department’s email, grievant shall email the Department a list of any of the 199 surnames that grievant considers not to be Hispanic (“List A”), and a separate list of any surnames not on the list of 199 that grievant considers to be Hispanic (“List B”) and the source of the surnames. Grievant may use any source of surnames for List B, e.g., lists publicly available on the Internet. If grievant fails to email List A and List B to the Department by this deadline, grievant shall be deemed to have waived any further response to Interrogatory #1, and grievant’s discovery shall be considered complete.

3. Within 21 days of grievant’s email, the Department shall email grievant a revised response to Interrogatory #1, using the 199 surnames from the Census data after striking the surnames on List A and adding the surnames on List B, thereby creating List C. At that point grievant’s discovery shall be considered complete. The Department may not object to responding to Interrogatory #1 using List C. ….

4. The Board denies grievant’s request for the list of the surnames the Department determined to be Hispanic and a list of the surnames the Department determined to be non-Hispanic surnames and were denied tenure.

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Read more: 2020-053 – 10-22-2021 – B – Order re Second Motion to Compel_Redacted.pdf
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FSGB: Extra/Marital Drama With Three Women, Two Pregnancies, and a Reduced 12-Day Suspension

 

Via ROP/FSGB 2020-036/September 21, 2021:

Held – The Department of State (“Department”) met its burden of demonstrating by a preponderance of the evidence that grievant committed the misconduct with which he was charged; that the discipline proposal was timely and without procedural defect; and that the proposed penalty was reasonable and proportionate to the misconduct.

Case Summary – Grievant was serving as a Diplomatic Security (“DS”) Special Agent (“SA”) at an overseas post with his then-wife. He was engaged in extramarital affairs with two women employed at the embassy (both of whom became pregnant), failed to report these relationships, failed to report out of country travel with one of the two women, and threatened and intimidated the other woman, prompting two investigations and his voluntary curtailment from post. Two years later, while participating in a meeting concerning the medical evacuation (“medevac”) of his new wife, grievant was accused of bullying and intimidating behavior toward personnel from the Bureau of Medical Services (“MED”), prompting a third investigation. On December 8, 2017, the Department proposed a 30-day suspension without pay, on five charges with 22 specifications. On January 23, 2019, the Department sustained the proposed 30-day suspension. Grievant filed a grievance, challenging the validity of the charges and the severity of the penalty. In the agency-level grievance decision, the Department sustained four charges with 13 specifications and reduced the suspension to 12 days.

Grievant alleged that much of the conduct reflected misunderstandings. He stated that his first marriage was failing when he arrived at post and he eventually married, and remains married to, one of the two women with whom he had affairs. He contended that the investigations into his alleged misconduct were marred by the bias and unprofessional conduct of post’s Regional Security Office as well as being unduly delayed, causing him personal and professional harm. He argued that the alleged misconduct at the MED meeting resulted from mistreatment of his family by MED and should be dismissed. Grievant also alleged that the discipline was untimely, coming almost six years after the first alleged act of misconduct until the Department’s agency-level decision, an unreasonable period of time that impacted his ability to grieve a flawed process and manage his career. Grievant also argued that the Department did not meet its burden of proving the charges, appropriately weigh mitigating factors, or offer timely or proportionate discipline. Grievant argued that the charges should be dropped, or the penalty substantially reduced.

The Department responded that the complexity of the case and number of incidents leading to successive investigations, justified the time necessary to propose discipline. The agency also rebutted allegations that the discipline process was procedurally flawed, asserting that it properly assessed the charges and grievant’s misconduct, considered all mitigating factors, and levied a penalty that was both fair and proportionate.

The Foreign Service Grievance Board (“Board”) found that the Department met its burden of proving all charges and specifications. The Board found no procedural errors and concluded that the charges were not stale and the delay not prejudicial. The Board upheld the Department’s penalty determination process, including an assessment of all mitigating factors and review of appropriate comparator cases. The grievance was denied in full.

According to the ROP, the grievant was advised on January 25, 2017, “This case is still ongoing pending additional information.”8 Notwithstanding this notice, in February 2017, grievant was promoted to FS-03, still as an ARSO, retroactive to November 2016.9″
The small prints:
1 Although grievant was once tenured as a DS SA and promoted to FS-03 in that capacity, he subsequently changed careers to FSO generalist at a reduced grade of FS-04 and he remains untenured in that capacity.
9 The Department reported that grievant’s name was “temporarily removed from the rank order list of employees recommended for promotion by his 2016 FS Selection Board pending a standard vetting check …. [D]ue to his then-pending discipline cases, [he] should have been continually reported [as ineligible for promotion] in the ensuing vetting checks …. [I]t appears that [grievant’s] name was not properly reported [in early 2017] … resulting in the erroneous reinstatement of his name to the promotion list.” See Agency Amended Response to Board Request for Information, at 3-4.
ROPs available to read via FSGB.
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