Do you know the statutory definition of “widow” for benefit purposes?

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Gibson v. Office of Personnel Management, No. 2020-1651 (Fed. Cir. September 9, 2020) (MSPB Docket No. PH-0831-20-0011-I-1): The appellant sought survivor annuity benefits under the Civil Service Retirement System, contending that she is a “widow” of a retired Federal employee. OPM denied the appellant’s application for benefits, finding that she did not meet the statutory definition of “widow” for benefit purposes under 5 U.S.C. § 8341(a)(1)(A), because the marriage to her husband lasted from May 21, 2018, until his death on February 15, 2019 (270 days). This was short of the “at least 9 months” requirement. On appeal, the Board affirmed OPM’s determination. Before the Federal Circuit, the appellant contested the application of the term “months” and argued that each month should be counted as having 30 days, meaning her 270-day marriage was 9 months in duration. The court rejected this argument and affirmed the Board’s final decision. Citing Supreme Court precedent as support, the court concluded that the phrase “9 months” has an “ordinary public meaning” that counts time as calendar months. The court further explained that Congress often uses, including in the statute at issue, “days” as a unit of measurement and could have done so in 5U.S.C. § 8341(a)(1)(A) if that were its intention. The appellant presented no grounds for “erasing the clear distinction between familiar counting methods.”

http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/20-1651.OPINION.9-9-2020_1649543.pdf

 


 

 

Snapshot: Qualifying Injury Under 3 FAM 3660 – Compensation For Certain Injuries

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A section in the Foreign Affairs Manual was added on May 28, 2020 (see 3 FAM 3660 Compensation for Certain Injuries). It is based on Public Law 116-94, Division J, Title IX, section 901, where:
“Congress allows the Secretary of State to pay benefits to certain Department of State personnel under chief of mission authority who incurred a qualifying injury and are receiving benefits under section 8105 or 8106 of Title 5, United States Code.  It further authorizes the Secretary of State to pay for the costs of diagnosing and treating a qualifying injury of a covered employee, as defined in 3 FAM 3662, that are not otherwise covered by chapter 81 of Title 5, United States Code (the Federal Employees Compensation Act (FECA)) or other provision of Federal law; and to pay the costs of diagnosing and treating a qualifying injury of a covered individual or covered dependent, as defined in 3 FAM 3662, that are not otherwise covered by Federal law.”
3 FAM 3660 also includes definitions on who are covered employees, or covered individuals, what’s a “qualifying injury”, and the description of recognized and eligible qualifying injuries as of June 26, 2018.

3 FAM 3662  DEFINITIONS
(CT:PER-994;   05-28-2020)
(Uniform State/USAID/USAGM/Commerce/Foreign Service Corps-USDA)
(Applies to Foreign Service and Civil Service Employees)

Qualifying injury:  The term “qualifying injury” means the following:

(1)  With respect to a covered dependent, an injury listed in (3) below incurred

(a)  during a period in which a covered dependent is accompanying an employee to an assigned duty station in the Republic of Cuba, the People’s Republic of China, or another foreign country designated by the Secretary of State under 3 FAM 3666;

(b)  in connection with war, insurgency, hostile act, terrorist activity, or other incident designated by the Secretary of State; and

(c)  that was not the result of the willful misconduct of the covered dependent.

(2)  With respect to a covered employee or a covered individual, an injury listed in (3) below incurred

(a)  during a period of assignment to a duty station in the Republic of Cuba, the People’s Republic of China, or another foreign country designated by the Secretary of State under 3 FAM 3666;

(b)  in connection with war, insurgency, hostile act, terrorist activity, or other incident designated by the Secretary of State; and

(c)  that was not the result of the willful misconduct of the covered employee or covered individual.

(3)  Recognized and eligible qualifying injuries, as of 26 June 2018, based on the University of Pennsylvania-identified criteria, include the following:

        • sharp localized ear pain;
        • dull unilateral headache;
        • tinnitus in one ear;
        • vertigo,
        • visual focusing issues;
        • disorientation;
        • nausea;
        • extreme fatigue;
        • cognitive problems, including difficulty with concentration, working memory, and attention;
        • recurrent headache;
        • high-frequency unilateral hearing loss;
        • sleep disturbance;
        • and imbalance walking.

3 FAM 3666  SECRETARY OF STATE COUNTRY DESIGNATION
(CT:PER-994;   05-28-2020)
(Uniform State/USAID/USAGM/Commerce/Foreign Service Corps-USDA)
(Applies to Foreign Service and Civil Service Employees)

a. Under Public Law 116-94, Division J, Title IX, section 901, the Secretary of State may designate another foreign country for the purposes of this section, provided that the Secretary reports such designation to the Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives, and includes in such report a rationale for each such designation.

b. The Secretary of State may not designate an added foreign country or duty station for the purposes of providing additional monetary benefit pursuant to 3 FAM 3663 or 3 FAM 3664 for a qualifying injury to covered employees, covered dependents, or covered individuals under this section unless the Secretary of State

(1)  provides to the Committees on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives 30 days’ notice of the designation of a particular additional country or duty station and the rationale for such an addition; and

(2)  provides no such additional monetary benefit pursuant to 3 FAM 3663 or 3 FAM 3664  to covered employees, covered dependents, or covered individuals for a qualifying injury until the 30-day notice period expires, unless there is written agreement by both the Chair and Ranking Members of both the Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives that there is no objection to proceeding with provision of such monetary benefit compensation in less than 30 days.


 

 

FSGB: A Tandem Couple Gets a Penalty, You Guess It — For Being Married

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One of the cases highlighted in the recently released FSGB Annual Report for 2020 is one relating to finances involving  an FS-06 Office Management Specialist (OMS)  married to a Diplomatic Security Special Agent. Two FS employees married to each other is called a tandem couple.
In FSGB Case No. 2019-024, the Board overturned the Department’s application of several Standard Operating Procedures to grievant and her tandem spouse that denied her per diem and related travel benefits during a four-month period of mandatory language training in Washington, D.C. between her first and second assigned posts overseas. The Board found that in addition to internal inconsistencies, the Standard Operating Procedures applied by the Department conflicted with applicable federal statutes and regulations that otherwise governed grievant’s right to receive travel and per diem benefits.
FSGB Case No. 2019-024 Summary

Grievant was an untenured Foreign Service officer of the Department of State (“Department,” “agency”) who was part of a tandem couple. Grievant was directed to her first assignment overseas, at the end of which, she planned to take Home and Annual Leave, followed by sixteen weeks of mandatory language training at the Foreign Service Institute (“FSI”) in Washington, D.C., in advance of an onward assignment. Grievant’s husband, also a Foreign Service officer, requested and was granted Leave Without Pay (“LWOP”) in order to accompany grievant on her first tour. The Department considers LWOP on paper to be an assignment to Washington, D.C. At the end of the LWOP period, grievant’s husband planned to return to Washington to serve in a bridge assignment and to attend work-related training, followed by the same sixteen weeks of mandatory language training and the same onward assignment.

At the end of grievant’s first tour, pursuant to a Standard Operating Procedure (“SOP”), the agency assigned grievant’s husband to “long-term” training at FSI. Under federal statutes and agency regulations, an officer who is in long-term training is authorized to receive locality pay and a Home Service Transfer Allowance but not authorized to receive per diem or an allowance for meals and incidentals. An officer is entitled to per diem and related expenses if he or she is on temporary duty of six months or less.

Another agency SOP requires both members of a tandem couple to be in the same status. Therefore, the Department assigned grievant to “long-term” training at FSI to match her husband’s assignment. Grievant requested and was denied a temporary duty assignment for the duration of her training. She filed a grievance challenging the agency’s application of SOPs that denied her the right to receive federally authorized per diem and related benefits.

The Department denied the grievance, arguing that because grievant was not contending that any of the applied SOPs was contrary to law, regulation, or collective bargaining agreement, she was not legally allowed to challenge them. The Department argued further that the federal benefits statutes and regulations upon which grievant relied did not apply to her because of the operation of the agency SOPs that required tandem couples to be in the same assignment status. The Department maintained that grievant did not establish that any of the SOPs were misapplied.

The Board reviewed the primacy of the federal legislation and regulations versus the agency SOPs and concluded that the federal statutes and regulation were controlling. The Board concluded that under the applicable statutes and regulation, grievant was entitled to per diem and related benefits, in the absence of application of the SOPs. The Board further found that the SOPs were internally inconsistent and conflicted with federal law and, therefore, grievant’s challenge to them was grievable. The Board concluded that grievant proved by preponderant evidence that the SOPs that were applied in this instance improperly prevented her from receiving per diem and other benefits to which she was entitled. The grievance was therefore sustained and the Department was ordered to reimburse grievant for the benefits she should have received under federal law.
[…]
Grievant points out that she and her husband did not have a local residence in the Washington DC area, therefore, they were obligated to spend money on housing, meals and incidentals. As proof that the SOPs were erroneously applied to her family, grievant cites the fact that the Department spent more money assigning her to Washington, D.C. than if she had been detailed to FSI in a TDY capacity. She states that the Department delivered to her rental property in Washington, D.C. her household effects (“HHE”), her privately owned vehicle (“POV”), and items that had been in storage; unpacked their belongings; and then repacked them less than six months later. Had the Department allowed her to receive per diem while on short-term training, her husband would not have received HSTA and they would not have received the HHE, POV transportation, or storage shipment.

The Board concluded that grievant, a member of a tandem couple, proved by preponderant evidence that the Department of State improperly denied her per diem and related benefits when it applied several Standard Operating Procedures that were at times internally inconsistent and that conflicted with applicable federal statutes and regulations that otherwise governed grievant’s right to receive travel benefits during a period of sixteen weeks of language training between two overseas.
Grievant argued that the Department’s SOP A-11a discriminates against tandem couples by treating them as a single entity, rather than two separate employees, each with their own respective, individual entitlements. She argues that there is no law or existing regulation that mandates that both members of a tandem couple remain in the same assignment status.
Grievant explained the practical difficulties of the policy application when she wrote to HR/CDA:

Since HR/CDA does review on a case-by-case basis and exceptions have been granted in the past, we do kindly ask guidance on how to pursue having [the denial of our request for per diem] reviewed. …. [W]e have been told we may have to be assigned as a PCS [Permanent Change of Station] vs TDY. … The arbitrary interpretation of an SOP, rather than a ruling that is backed by the FAM, is going to create undue hardship on our family and unnecessary expenses for the State Department by having to receive all of our HHE, storage, POV, etc, only to have it packed back up again within 4 months. Shipping our HHE from to DC where it will be unpacked then repacked, then shipped again to is going to cost significantly more than having it held in temp storage in ELSO [European Logistical Support Office] then sent directly. I understand that we have the option to pay to keep our belongings in storage, but that forces us into a furnished apartment for 4 months. I contacted Oakwood, and a 2 bedroom apartment will cost over $23,000 for this time frame, which is just absurd. Even with DC locality and HSTA that is an extreme amount of money that I have to pay to attend required training.

Note that a hypothetical FS-06/1 employee earns approximately $42K. A 4-month rental of a furnished apartment at $23K would cost more than half that employee’s annual salary.
FSGB’s take on SOPs vs. Federal Statute:

“… where there is conflict between a state law and a federal one, the Supreme Court has stated that the federal statue must take effect. It follows, then, a fortiori, that where there is conflict between a unilaterally established agency procedure and a federal law or regulation, the procedure must equally give way to the operation of a federal statute “where it is impossible … to comply with both.” Id. Here, the Department could not comply with the federal per diem statutes, as grievant requested, solely because of its application of legally inferior SOPs. We conclude that this was clear error.”

16 Weeks is a “Long Term Assignment”, Who Knew?

“We further find that by mandating that grievant was on an assignment to long-term training in Washington, D.C., when she was in fact in training for no more than sixteen weeks, she did not have a home in Washington, she had not previously been assigned there, and she was mandated to take language training for her onward assignment overseas, the Department violated its own SOPs. Specifically, the Department violated the provision in SOP A-11a that, “The Department’s policy is to ensure that no advantage or disadvantage accrues to any employee through the assignment process on the grounds of marital status.” (Emphasis added). Application of this SOP put grievant at a clear disadvantage because she was not permitted to receive the benefits of the federal statutory per diem and M&IE benefits, solely because she was part of a tandem couple. The record is clear that had grievant not been married to her husband, she would have been entitled to seek a TDY assignment to Washington for her short-term training.

A tandem married couple penalty:

“… the Board finds that the purpose of the SOPs applied in this instance was to prevent any one employee from receiving duplicate benefits, such as per diem and locality pay, or employee benefits and family member benefits. Nothing in the SOPs suggests that the purpose was to prevent one employee from receiving certain benefits on the basis solely that the employee was married to another employee who received different benefits. If this were the case, then the procedures would advantage unmarried, but cohabiting, couples over tandem married couples.

Here’s the nutty part. When the FSGB became aware that AFSA was requesting a change in the very policies at issue in this case, it asked the Department about the proposed revision. The Department told FSGB:

Please find attached a copy of the revised SOP A-11a, which was implemented by the Department in December 2019 and is currently being announced within the Department. … As the revisions to SOP A-11a were implemented after [grievant’s] assignment in this case, the revisions have no impact on the application of the prior version of SOP A-11a to [her]. In her appeal, [grievant] contends that SOP A-11a should not have been applied to her and that she should have been placed on TDY status, that SOP A-11a was contrary to law, and that SOP A-11a discriminated based on marital status. The revision of SOP A-11a does not validate any of the arguments raised in [grievant’s] appeal.

Holymoly macaroni! It does, good heavens, it does validate all! Exclamation points added !!!!!!!!!!!!!!!!!!!!!!!!
Seriously, how does one learn to think with such mental and linguistic contortions?
We could almost imagine the FSGB Board members shaking their heads in disbelief when it said:  “The Department concedes that the policy has changed officially, precisely as grievant requested in her case. Essentially, the Department argues that the revised policy should not be applied retroactively and, therefore, grievant’s appeal should be denied.”
FSGB cases cannot be read online without downloading the files.  Files are available here.

 


 

 

@StateDept Updates FAM For Individuals Serving as Designated Chiefs of Mission

One part of the ARB-Cuba report addressed guidance provided to the chief of mission (see ARB on Havana Syndrome Response: Pray Tell, Who Was in Charge?):
The ARB report reveals: “In exploring the guidance given to the COM regarding his responsibility for the security of all executive branch employees, the Board learned the COM did not have a letter of instruction. Presidentially-appointed, Senate-confirmed ambassadors all receive a letter of instruction from the President detailing their responsibilities. Typically the responsibility for the safety and security of American citizens and U.S. government employees features prominently in these letters. In other posts where a COM is not Senate confirmed, the Department sometimes issues a letter of instruction from the Secretary of State which serves a similar purpose.”
On February 19, 2021, the State Department updated 3 FAM 1420, the Transfer of Office for Chiefs of Mission and Other Principal Officers.  The updated regs actually is in referenced to “Designated Chief of Mission” positions.  Assignments as CdA a.i. to designated COM positions go to the D Committee for approval and are approved by either the secretary or deputy secretary.  See 3 FAH-1 H-2425.8-2(B).  The new updates also notes that Designated COMs must “receive a briefing on intelligence oversight responsibilities from the Bureau of Intelligence and Research (INR) and confirm in writing that they have read and understood the Secretary’s guidance to individuals performing the functions of a COM (3 FAM 1427).”
One section addresses the general policy:
3 FAM 1422  GENERAL POLICY
(CT:PER-1028 ;  02-19-2021)
(State Only)
(Applies to Foreign Service Employees Only)
a. This policy establishes the roles, responsibilities, and processes for ensuring relevant statutory and other requirements are met when designating individuals to serve as Chargé d’Affaires ad interim (CdA a.i.) in the absence of the Chief of Mission (COM).  The requirements set forth in this policy apply regardless of the length of time the individual will be serving as CdA, a.i. This policy also addresses transfer of the principal officer at consulates and interest sections.
b. The term “transfer of office”, as used here refers to the permanent or temporary transfer of the authorities and responsibilities vested in the principal officer for the management of the post and the conduct of its operations.  A permanent transfer of office occurs whenever an officer relinquishes charge of a post and does not expect to resume charge of that post, or whenever directed by the Department.  A temporary transfer occurs whenever an officer relinquishes charge of a post with the expectation of resuming charge of the post.
c.  The legal authorities cited in 3 FAM 1421 support the practice of designating principal officers at certain posts as CdA, a.i., Consul General, or principal officer with COM authority.  These three categories are referred to as Designated Chiefs of Mission (List available at 2 FAH-2 H-112).  Incumbents in Designated COM positions are not appointed by the President with the advice and consent of the Senate and do not have the ambassador title.  They also do not receive a Letter of Instruction by the President. The policy in 3 FAM 1420 also applies to individuals serving as Designated COMs and provides guidance to those individuals on their responsibilities. Designated COMs, like other CdAs, a.i. need approval by the Under Secretary for Management (M) and required guidance and briefings, but because Designated COMs are not filling in during the absence of a COM, the transfer of office provisions in 3 FAM 1420 do not apply.
Another section addresses the criteria for individuals serving as CDAs.  This update says that individuals on a Foreign Service limited non-career appointment  or a while actually employed (WAE) appointment, which is an appointment into the Civil Service, do not qualify as career FSOs and therefore may not serve as CdA, a.i. See 3 FAM 1427 for guidance outlines responsibilities for CdA, a.i.s.
3 FAM 1425  CRITERIA FOR INDIVIDUALS SERVING AS CDA
(CT:PER-1028;  02-19-2021)
a. Any individual serving as CdA pursuant to Section 502(c) of the Foreign Service Act must be a career FSO.  This includes retired career FSOs recalled for service under section 308(a) of the Foreign Service Act. Recall appointments are approved by the director general of the Foreign Service and the individual recalled must also be approved by the Under Secretary for Management (M) in order to serve as CdA, a.i.  Individuals on a Foreign Service limited non-career appointment  or a while actually employed (WAE) appointment, which is an appointment into the Civil Service, do not qualify as career FSOs and therefore may not serve as CdA, a.i.
b. Factors regional bureaus may consider when nominating individuals to serve as CdA, a.i. include: past experience as CdA, a.i. or DCM, experience managing multi-dimensional and complex teams, experience working with the interagency, relevant country and regional experience, number of years of service, and demonstrated ability to mentor and lead staff.
c.  Pursuant to Section 502(c) of the Foreign Service Act and Delegation 462, M approval is required in order for an individual other than a DCM or suitable senior officer at post to serve as CdA, a.i. The regional bureau’s assistant secretary must send an action memo to M identifying the individual identified to serve as CdA, a.i. and outlining the individual’s qualifications and the rationale for designating the individual’s qualifications and the rationale for designating the individual as CdA, a.i.
d. Individuals who serve or are expected to serve as CdA, a.i. for more than 30 consecutive days, including Designated COMs, must also have authorization to access to Sensitive Compartmented Information. Additionally, he/she must receive a briefing on his/her intelligence oversight responsibilities from the Bureau of Intelligence and Research (INR).  If already at post, he/she should contact INR/OPS to receive a secure virtual briefing. 
e. Regional bureaus must ensure that the individual does not travel to post or assume charge until required briefings have been completed.
f.  Prior to departing for post, any individual who will be serving as CdA, a.i. must confirm in writing that he or she has read and understands the Secretary’s guidance to individuals performing the functions of a COM (3 FAM 1427).  If already at post, this written confirmation should be part of the notification process outlined in 3 FAH-1 H-1425.

 

 

PSA: Things You Cannot Send Via Diplomatic Post Offices

 

According to the Foreign Affairs Manual, 39 U.S.C. 413 authorizes the United States Postal Service (USPS) to establish U.S. Post Office branches at U.S. diplomatic missions abroad.  It also authorizes the Department of State to enter into an agreement with USPS to perform postal services at such branch post offices through personnel designated by the Department of State.  The Tripartite Agreement between the Department of State, Department of Defense, and USPS exercises that authority, providing a framework for the establishment and support of Diplomatic Post Offices (DPOs).
The DPO must be used only for personal mail.  Official mail, including official supplies, is not permitted in the DPO.  The mailing of dangerous goods via the DPO may present serious dangers to aircraft and passengers, and/or cause serious diplomatic concerns with host nations. 
IATA Dangerous Goods Regulations, Section 9, requires DPM (Diplomatic Pouch and Mail Division) to report to the appropriate authorities of the State when undeclared or misdeclared dangerous goods are discovered in cargo or mail.  Incidents discovered anywhere in the USPS supply chain must be reported to DPM via a Postal Offense Report in ILMS DPO.  DPM will notify the United States Postal Inspection Service (USPIS), the Bureau of Diplomatic Security (DS), and the Federal Aviation Agency (FAA).
Items known as hazardous, restricted, or perishable are prohibited for dispatch by DPO from the United States to either abroad, or from abroad to the United States, or from post to post (consult USPS Publication 52). 
See some of the restricted items below (expanded list is available via 14 FAM Exhibit 761.4 here):

Human remains are only authorized when sent via Priority Mail Express International Service (NOTE:  Express mail is not authorized to/from a DPO);

Alcoholic beverages (e.g., beer, wine, liquor, any liquid containing alcohol);

Electronic Cigarettes (e-Cigarettes).

Agriculture products (e.g., plants, seeds, bulbs, soil, fertilizer, plant food, wood chips, fruits, etc.);

Animals:  Endangered species products (e.g., lab samples, insects, etc.);

Compressed gases and aerosols (e.g., hairspray, cylinders containing residual pressure, inhalers for asthma);

Flammable liquids (e.g., nail polish and remover, hand sanitizer, lens wipes, medication containing alcohol, perfume, or cologne);

Flammable solids (e.g., safety matches);

Incendiary materials such as road flares, cigarette lighters, self-starting charcoal, MRE meals with heaters, etc.;

Items for resale (e.g., Girl Scout cookies, magazines, etc.) per 14 FAM 742.4-3;

Household Effects (HHE) or Unaccompanied Baggage (UAB) per USPS Postal Bulletin restriction N, and 14 FAM 761.4-4, Private Property in the DPO;

Firearm/ammunition/explosive devices (e.g., blanks, caps, shells, simulated ammo);

Explosives or inert training devices resembling explosives;

Firearms and objects resembling weapons or dangerous objects (e.g., air rifles, paintball guns, training weapons, weapons and/or gun parts made/fashioned by three-dimensional (3D) printers, etc.), per USPS Postal Bulletin restriction U4;

Weapons or items that resemble weapons (e.g., any spring-loaded knife (switchblade), tactical knives, fixed-bladed fighting/hunting knives, firearms, or components thereof, sling shots, bows, arrows, BB guns and pellet guns, firearms, throwing stars/spikes, ceremonial swords, toys closely resembling weapons, etc.).  NOTE:  Kitchen knives are permitted but highly discouraged; 

Per 14 FAM 310, for official supplies and equipment from the United States, the Department, the foreign affairs agencies and other U.S. Government civilian (i.e., non-DOD) agencies utilize the U.S. Despatch Agents and their Consolidated Receiving Point (CRP) Programs for shipment.
Anybody knows the restrictions for med flights?

 


 

 

State/M Brian Bulatao Suspends All @StateDept Diversity and Inclusion Training Programs

 

On October 23, the State Department released an ALDAC cable on the “Department Implementation of Executive Order on Race and Sex Stereotyping.” The cable came with a message from the Under Secretary for Management and Pompeo BFF Brian Bulatao. 
The guidance says that  starting Friday, October 23, 2020, the Department is temporarily pausing all training programs related to diversity and inclusion in accordance with Executive Order (E.O.) 13950 of September 22, 2020 on Combating Race and Sex Stereotyping. 
The president, who is undoubtably, the top promoter of divisiveness in this country has issued another dumpster fire here: Executive Order on Combating Race and Sex Stereotyping, September 22, 2020.
The State Department cable says that the “pause” will allow time for the Department and Office of Personnel Management (OPM) to review program content.  “The Department is in regular communication with the Office of Management and Budget (OMB) and OPM to discuss the effective implementation of E.O. 13950 and to minimize the time period needed for review to ensure approved programs can resume in a timely fashion.” 
Apparently, the Foreign Service Institute (FSI) will “collect relevant training materials” for submission to OPM’s review “in a complete, all-inclusive submission. ” 
What the heck is that? They think FSI is hiding some of their um, training?
The cable also says that the “Department continues to welcome input from employees on how to improve diversity and inclusion efforts, including from leadership, existing and emerging bureau and post Diversity and Inclusion Councils, and Employee Affinity Groups.”
Wait … emerging bureau at State? Hmmn … somebody has a pet new bureau over there, huh?
Bulatao’s message says that the Department “leadership” will be requesting in a separate cable “all bureaus and overseas missions to review and confirm that any materials related to diversity and inclusion courses or programs are consistent with the Executive Order.”
The OMB Memorandum says in part “Agency employees and contractors are not to engage in divisive training of Federal workers. Noncompliance by continuing with prohibited training will result in consequences, which may include adverse action for Federal employees who violate the Order.”
Agencies must:
“Review these trainings to determine whether they teach, advocate, or promote the divisive concepts specified in the Executive Order on Combating Race and Sex Stereotyping ( e.g., that the United States is fundamentally racist or sexist or that an individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive). Reviews of specific training curriculum materials can be supplemented by a broader keyword search of agency financial data and procurements for terms including, but not limited to:
      • “critical race theory,”
      • “white privilege,”
      • “intersectionality,”
      • “systemic racism,”
      • positionality,”
      • “racial humility,”
      • “unconscious bias”
When used in the context of diversity training, these terms may help to identify the type of training prohibited by the E.O. Searching for these key words without additional review does not satisfy the review requirements of the E.O.”
And contractors?
“Contractors who are found to have provided a training for agency employees that teaches, advocates, or promotes the divisive concepts specified in the E.O. in violation of the applicable contract will be considered for suspension and debarment procedures consistent with the E.O. and in accordance with the procedures set forth in Part 9 of the Federal Acquisition Regulation.”
See OPM – M-20-37 Ending Employee Trainings that Use Divisive Propaganda to Undermine the Principle of Fair and Equal Treatment for All (September 28, 2020) (4 Pages, 4,370 KB).
Holymoly macaroni!
If  the Federal government is about to revert to just calling ’em pranks, why should training be needed, luv?
Remember that time when FBI Agents Hung A Noose Over an African American DS Agent’s Workspace Twice, and the FBI Called It “Pranks”?

How @StateDept Handles Domestic Violence Overseas: One Example and Some Questions

 

In the many years that we’ve watched the State Department, or asked questions about assaults, harassment, or domestic violence, we seldom see a public accounting of how the agency handles these cases, particularly overseas.  State had such a case in 2018. And we’re only seeing it now because the case landed in the U.S. Equal Employment Opportunity Commission.  The EEOC case came from a complainant who was previously assigned to an overseas post in the Bureau of Near Eastern Affairs (NEA).
On November 7, 2018, Complainant filed an EEO complaint alleging that the Agency [State Department] subjected him to discrimination and a hostile work environment/harassment on the basis of sex (male), status as a parent, and in retaliation for “whistleblower activity”. The EEOC notes that “With respect to Complainant’s allegations on appeal of violations of the U.S. Constitution, whistleblower protection laws, criminal laws, and tortious laws not addressed by EEO laws, these laws are not within the purview of the EEO complaint process.”.
The State Department concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. On March 13, 2020, the EEOC issued a decision which affirmed the Agency’s final decision. Excerpt from Appeal No. 2019005790:
The Agency accepted the complaint as to the alleged basis of sex and conducted an investigation, which produced the following pertinent facts:
Complainant was assigned to the Agency’s facility [/], accompanied by his spouse (“Spouse”) (female) and children. He and his family resided in U.S. government-supplied housing.
On September 21, 2018, Spouse reported an incident of domestic violence to the Deputy Regional Security Officer (Deputy RSO), alleging Complainant assaulted her. The alleged assault occurred on September 9, 2018, while they were on vacation in Poland. Deputy RSO attested that, based on Spouse’s report, it was reasonable to believe that domestic violence had occurred, and he reported the situation to the front office and the Office of Special Investigations (OSI), as required by Agency policy.
The Agency’s Family Advisory Team (FAT) was advised of Spouse’s report of domestic violence and they recommended that, in the best interest of the family, Complainant and Spouse be separated for a cooling down period. One factor in the decision was Spouse’s comment that she was afraid of Complainant’s finding out that she made the report. Members of the FAT recommended the separation out of concern for further violence, without a determination as to the veracity of Spouse’s allegations, until a decision could be made as to the next steps. The Deputy Chief of Mission instructed that Complainant be removed from the residence, pending further deliberations by the FAT.
On September 21, 2018, Deputy RSO and two other Agency employees went to the residence Complainant shared with his Spouse and their children and informed Complaint that he was being relocated to a hotel. Complainant and Spouse were instructed not to contact each other until a decision was made about the alleged domestic violence incident. Complainant cooperated and was escorted to a hotel.
On September 25, 2018, Complainant reported to Deputy RSO that Spouse was the aggressor in the domestic violence incident. Deputy RSO instructed Complainant to communicate with OSI, as they had jurisdiction.
In the instant complaint, Complainant alleged sex was a factor because he was required to leave the residence, while Spouse remained in the home with their children.
On September 26, 2018, Complainant met with a Human Resources Officer (HRO) and Agency security personnel and was informed that he must immediately leave the post and return to the United States. He was given the choice of voluntary or involuntary curtailment. He was informed that the issues facing his family could not be addressed locally and resources were not available to manage his family situation. Complainant agreed to a voluntary curtailment because the official reason would be classified as personal and there would be no discipline. He also attested that he selected voluntary curtailment because, even though he was the victim of Spouse’s assault, he did not believe he would have any support at the post.
HRO explained that when there is a conflict between two members of a household and one or more of the individuals are direct hires, the Agency policy is to curtail the direct hire. She further explained that this approach is preferred as there is an unwillingness to involve the local police in a potential domestic violence situation. She explained that the post cannot adjudicate claims and make a determination, as that authority rests with OSI. She explained that the post has no authority to require a family member of a direct hire to leave the country and the only viable option is to require the direct hire to curtail, which then will require the spouse or other family member to vacate the government-supplied housing.
The Deputy Chief of Mission attested that she made the decision to curtail Complainant, as this was the third occasion of serious behavioral incidents involving Complainant since he arrived, less than a year ago and, based on the advice from FAT, she instructed that he be given a choice of voluntary or involuntary.
On September 28, 2018, Complainant returned to the United States. Spouse and their children remained behind to pack their belongings and arrived in the United States on October 17, 2018.
Upon his arrival in the United States, Complainant was informed by Diplomatic Security that an update for approval of his security clearance had been initiated “for cause.” Complainant’s security clearance was not scheduled to expire until June 2021. Complainant alleged that the review of his security clearance was initiated by the post to support their decision to remove him from [post].
The Office Director of DS/SI/PSS explained that he was, in part, responsible for the investigation and adjudication of security clearances for the Department and Complainant was subject to an “out of cycle” investigation regarding his security clearance because of the reports received from a Diplomatic Security investigation alleging potential misconduct. He explained that the investigation was “for cause,” non-routine, and pursuant to regulations.
With respect to the alleged harassment, Complainant attested that, on November 7, 2018, the Agency notified him that he was the subject of an administrative inquiry into allegations that he was a harasser.
He explained that he learned that, during a social setting, he made a comment about Spouse that might have been considered a distasteful joke but did not rise to the level of harassment. He also alleged that, during a meeting with the American Foreign Service Association and Human Resources, a Human Resources representative asked him when he anticipated retiring.
[…]
The Agency explained that, following Spouse’s report of domestic violence, the Agency felt it in the best interest of the family that Complainant and Spouse be separated for a cooling down period, pending a determination as to what steps were next. The Agency further explained that there is an unwillingness to involve local authorities in such matters and it lacks the authority to adjudicate such matters. The Agency explained that in such situations involving a direct hire employee and an accompanying spouse, it is the Agency’s policy to curtail the direct hire, which would then cause the spouse and family to be required to vacate the government-supplied housing. The Agency also explained that Complainant was subject to an “out of cycle” investigation regarding his security clearance because of the reports of alleged potential misconduct. We note that, although Complainant and Spouse disagree as to who initiated the domestic violence, Complainant does not deny that the domestic violence occurred. We find the Agency’s actions of separating the spouses, sending the employee back to the United States, and subjecting him to another security investigation to be reasonable under these circumstances. Therefore, although Complainant has alleged discrimination, he has not established by a preponderance of the evidence, that the legitimate, non-discriminatory reasons articulated by the Agency were a pretext for unlawful discrimination or motivated by some unlawful discriminatory animus with respect to any of these claims.
The links to the related regs are below. In this case, State told the EEOC that “there is an unwillingness to involve local authorities in such matters and it lacks the authority to adjudicate such matters.” And yet, 3 FAM 1815.2 says:

d. If the initial report is substantiated, action may include one or more of the following: (1)  Post may call upon local authorities or resources in certain cases; […] (5)  Post may be asked to call upon shelter and child protection resources or find alternative shelter within the post community for the victim and any children.

Seriously though, why are these options decorating the FAM if they are never real options? In certain cases? Which cases would there be a willingness for post to call upon local authorities to settle a domestic violence case?
Perhaps the most striking thing here — well, a couple of things. 1) “Complainant agreed to a voluntary curtailment because the official reason would be classified as personal and there would be no discipline”; and 2) the Agency’s point that “the only viable option is to require the direct hire to curtail, which then will require the spouse or other family member to vacate the government-supplied housing.”
And then what?
The spouse and children returns to the United States. To where actually? To get back with the spouse? To a halfway house? To a homeless shelter? What actually happens to the family upon return to the United States following a report of domestic violence overseas? Folks do not always have houses in the DC area, spouses may be foreign born with no families in the DC area. In most cases, the household effects and those on storage are also under the employee’s name only (unless the spouse made prior arrangements).
So what happens next? Could ‘what happens next’ be one of the main reasons why folks do not report these cases?  

Related items:
3 FAM 1810 FAMILY ADVOCACY PROGRAM (CHILD ABUSE, CHILD NEGLECT, AND DOMESTIC VIOLENCE)
3 FAM 1815  DOMESTIC VIOLENCE

BUT the seats in question are 0.3 inches wider than regular economy seats!!!

The Civilian Board of Contract Appeals (CBCA) is an independent tribunal housed within the General Services Administration. The CBCA presides over various disputes involving Federal executive branch agencies. Its primary responsibility is to resolve contract disputes between government contractors and agencies under the Contract Disputes Act. In addition to contract disputes, the Board also adjudicates cases related to travel and relocation.
The following case relates to a Department of State employee assigned overseas who requested reimbursement of travel expenses for extended economy seating (EES) which was authorized on his orders. The agency denied his request after determining that the circumstances of his travel did not meet the agency’s requirements for reimbursement. The Board granted the claim.
This was a claim from a few years ago, but we were tickled by the 0.3 inches wider economy seat argument. Given what we’re seeing these days, my gosh!
Via CBCA 5686-RELO
Claimant is a foreign service officer currently assigned to Vietnam. On August 15, 2016, claimant and his spouse traveled twenty-three hours from Washington, D.C. to Ho Chi Minh City, Vietnam pursuant to permanent change of station (PCS) orders. Claimant’s orders authorized extended economy seating at the rate of $300 per person. Although the trip was booked on American Airlines,1 the leg from Boston, Massachusetts to Tokyo, Japan was operated by Japan Airlines (JAL). At the ticket counter in Boston, claimant inquired about upgrading his seats to extended economy, consistent with his authorization. The agent confirmed that such seats were available and reassured claimant that the seats were located in economy class. Claimant upgraded his seats for the sum of $600. His request for reimbursement of the cost of extended economy seating was denied.

I understand that you were authorized extended economy seating on your [travel orders], however, per guidance set forth by TTM-A/LM Transportation Branch and the guidance cable you have attached, not all airlines have economy seating available. In addition, TTM informed us that “premium” economy [programs] are not reimbursable as we are not reporting this under the Department’s mandatory annual Premium Class Travel Report. Based on our research on the Japan Airlines website and the seat guru site, Japan Airlines offers “premium” economy with extra services . . . and the seat guru showed that all Japan Airlines aircraft[] have [a] distinct premium economy cabin.

In response to the denial, Claimant requested a review of the decision, stating:

JAL Extended Economy is still Economy Class seating in [an] economy cabin with additional leg room, and seems to fit within [the] definition . . . My travel was over 14 hours at the allowable cost, and I did not take a rest stop or purchase business lounge [access]. . . The claim reviewer has only stated her reason [for denial] as JAL providing additional entertainment services in extended economy. Nowhere does the [Foreign Affairs Manual] or guidance mention entertainment services as something to preclude use of extended economy seating.

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Burn Bag: If you donate $10,000, you will receive a “personal visit with Secretary of State Mike Pompeo”

Via Burn Bag from Sender A:
“Secretary Pompeo is attending the Florida Family Policy Council (FFPC) annual dinner on October 3.  The invitation for the event states that if you donate $10,000 (Diamond Table Sponsor) to the organization you will receive a “personal visit with Secretary of State Mike Pompeo.”  If you donate $3-5,000 you will receive “2 VIP Tickets to Reception with Secretary of State Mike Pompeo.”  (https://ffpc.regfox.com/2020dinner)
This is an obvious pay-to-play situation and a clear violation of the federal regulations on fundraising activities (5 CFR 2635.808).  The statute lists below an example of a prohibited activity:
A nonprofit organization is sponsoring a golf tournament to raise funds for underprivileged children. The Secretary of the Navy may not enter the tournament with the understanding that the organization intends to attract participants by offering other entrants the opportunity, in exchange for a donation in the form of an entry fee, to spend the day playing 18 holes of golf in a foursome with the Secretary of the Navy. (https://www.law.cornell.edu/cfr/text/5/2635.808)
This is exactly what Secretary Pompeo is doing.  The Florida Family Policy Council is charging thousands of dollars for the opportunity to meet the Secretary of State.  Moreover, the Department and U.S. government – and, by extension, U.S. taxpayers – are paying for the Secretary to fundraise for the FFPC.  The Department will send staff to support his travel and he will fly a government plane to/from the event.  Significant resources will be spent so the Secretary can fundraise and promote the cause of an organization that is very openly hostile to the LGBTQ+ community.  
Not only does Secretary Pompeo’s pay-for-play participation violate statute, it marginalizes State’s LGBTQ+ community and is wholly inconsistent with the remarks of Deputy Secretary Biegun at the virtual panel discussion on U.S. engagement on LGBTQ+ issues:  “We need to lead by example. At the State Department, our management team, led by Under Secretary for Management Brian Bulatao and our Director General Carol Perez, is working hard to recruit, retain, and promote a diverse workforce, and to build a culture of inclusion. We continue to identify ways our workplace can be more inclusive for our LGBTI employees as well as for all of our employees.”  (https://www.state.gov/remarks-at-a-virtual-panel-discussion-on-u-s-engagement-on-lgbti-issues/).”
(Also see https://www.flfamily.org/issues-research/marriage-family/lgbt-issues).

EEOC: Denial of Reasonable Accommodation Found

Via EEOC:

Denial of Reasonable Accommodation Found.

Jona R. v. Dep’t of State, EEOC Appeal No. 0120182063 (Jan. 23, 2020).

Complainant filed an EEO complaint alleging that she was discriminated against on the basis of disability when she was not provided with a reasonable accommodation of situational telework as her medical circumstances required. Complainant had been teleworking for several years, but her telework agreement expired. According to the record, Agency managers repeatedly asked Complainant to resubmit her request or provide additional information over a period of several months. Approximately six months after Complainant requested accommodation, the Agency informed Complainant that she could telework on Mondays, Wednesdays, and Fridays and would have a one-hour window to report her duty station to her supervisor on those days. The Commission found that the Agency discriminated against Complainant when it did not approve her request for situational telework. The Agency acknowledged that Complainant was a qualified individual with a disability. Complainant demonstrated that she needed to be able to telework when she experienced symptoms related to her condition, and these symptoms occurred without notice and were not limited to the three days specified. Therefore, the Agency’s offer, which was essentially the same telework schedule Complainant had before she requested reasonable accommodation, was not an effective accommodation. The Commission found that the Agency failed to prove it would have been an undue hardship to allow Complainant to telework when her medical conditions warranted.  The Agency was ordered, among other things, to provide Complainant with the ability to situationally telework, restore any lost leave or pay, and investigate her claim for compensatory damages.
Jona R. v. Dep’t of State, EEOC Appeal No. 0120182063 (Jan. 23, 2020).