@StateDept’s “New Camp Sullivan” in Afghanistan Four Years On: A Lovely $103.2 Million Flat Dirt

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State/OIG’s Office of Evaluation and Special Projects has released its Evaluation of the Bureau of Diplomatic Security’s Aegis Construction Contract at Camp Eggers in Afghanistan (PDF). Well, nothing good to read in this report, but the flat dirt is lovely, and makes us want to pull our hair out in  frustration. We bring you some GIFs to make us all feel better.

Camp Eggers Afghanistan, Photo by State/OIG

Things of note excerpted from the IG report:
The Department awarded Task Order 10 in July 2011 to Aegis (GardaWorld)  to provide and manage an armed and unarmed guard force known as the Kabul Embassy Security Force (KESF) for Embassy Kabul and other U.S. diplomatic facilities within Kabul, Afghanistan. On September 30, 2014, the Department modified Task Order 10 held by Aegis to allow for the renovation of Camp Eggers in its entirety and to erect a new facility known as the “New Camp Sullivan.” […]Modification 43 was issued to Aegis under a firm fixed price for the design-build of the Camp Eggers construction project. The task order modification was valued at about $173.2 million with an estimated completion date of March 31, 2016.
[…] An Aegis official told OIG he did not believe the company had undertaken any construction projects other than building a shooting range at Camp Sullivan. An OBO official noted that Aegis lacked the “institutional expertise” to build to OBO standards, and several Department officials told OIG that they had doubts about Aegis’s ability to carry out major construction work.

 

On January 10, 2014, AQM awarded a contract to the management consulting firm, Markon, on behalf of DS to perform professional engineering services.[..] Markon […] warned the Department in August 2014—a month before the task order was modified—that the project would not likely be finished on time or on budget. The Department nonetheless chose to move forward with this fundamentally unsuitable construction mechanism because of what it viewed as exigent need and a lack of alternatives.

 

Multiple Department officials, as well as an Aegis official, told OIG that they viewed the initial 18-month project timeline as unreasonable. An official from AQM expressed skepticism that such an extensive project could ever be completed so quickly in a construction environment as logistically complex as Afghanistan.[…]The renovation of Camp Eggers entailed extensive demolition and redevelopment, including [snip] the construction of new facilities. The “New Camp Sullivan” facility was intended to become a self-supporting, multi-use facility, which included life support for up to 900 personnel (expandable to house up to 1,500 personnel) all within a secure perimeter.

 

Aegis, through its subcontractor, CWI, purchased materials costing approximately $19.4 million for Camp Eggers. However, roughly 23 percent of these materials ($4.5 million) were obtained without submitting proper documentation or receiving proper Department approval.[…]The materials had to be stored due to numerous project delays, which prevented CWI from using the materials as they were delivered. The storage continued throughout the life of the contract until all of the materials were disposed of by May 2018. Over the life of the task order, the Department wasted about $22 million on materials that were never used and then paid to store them

 

Although Aegis continuously missed project milestones and failed to adhere to contract requirements, the Department still did not take meaningful corrective action against Aegis beyond issuing LOCs. As noted, these were primarily issued by DS. The Department also held a number of meetings with Aegis personnel to discuss the lack of progress made on the project, but no further corrective action was taken.

 

The Department reached a settlement with Aegis in March 2019 whereby the Department agreed to pay Aegis a total of $94.6 million. Based on this figure, in addition to three separate contracts with Markon Solutions, Incorporated for professional engineering and design review services, OIG identified a total of $103.2 million in questioned costs related to the Camp Eggers project.[…] the “New Camp Sullivan” remained flat dirt after more than four years of effort. The Department estimated that approximately 10 percent of the construction work was completed, and the 100 percent design—the final design—remained unfinished.

After the termination of the Camp Eggers project, the Department transferred materials stored in Kabul to fill other U.S. Government needs in the area. Regarding the materials in Dubai, Red Sea Housing Services Company FZE (Red Sea), the company with whom the Department ordered CHUs, reached a final termination settlement valued at about $2.5 million with Aegis and the Department under which Red Sea would keep all the materials and equipment they procured on behalf of the Department. The remaining materials in Sterling, VA were disposed of through the General Services Administration’s excess property program and some were scrapped.

Via reactiongif.com

 

OIG’s conclusion: [T]he Department’s sense of urgency, the selection of a non-construction contractor, the assignment of officials inexperienced in construction to oversee the project, and the failure to hold the contractor accountable for particular instances of poor performance led to the expenditure of more than $100 million without any discernible benefit to the Department or the people it intended to protect. OIG also notes that, more generally, this project illustrates many of the broader concerns that arise when the Department pursues construction projects in contingency or otherwise challenging environments. The Camp Eggers project again highlights the importance of making well-informed, thoughtful choices regarding the most appropriate contract vehicle; careful, consistent oversight; and development of a process for construction work in contingency zones that is sufficiently nimble to address urgent security needs but also considers the resources and capabilities of all relevant Department bureaus.
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U.S. Ambassador John Bass Learns to Play Cricket in Kabul, Will Keep His Day Job

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US Embassy Kabul via FB says that the U.S. Ambassador to Kabul John R. Bass put aside the American pastime of baseball for a day to learn how to play the sport that has made Afghanistan famous around the world.  So he got to “play”  cricket  with members of the Afghan National Cricket Team who apparently took some time from their busy training schedule to help the Ambassador learn how to pitch and bat along.

The Embassy want to know, “how do you think he did?.” Er … we think he already knew that he’ll keep his day job there.  The video with Pashto subtitles is available to watch here: https://youtu.be/S6EXDJqsqaU

OBO’s Fire Protection Judgments and @StateDept’s Black Hole of Bureaucratic Shrugger-Swagger

 

We blogged previously about the State/OIG Management Assistance Report sounding the alarm over the fire alarm system at the U.S. Embassy in Kabul (see  U.S. Embassy Kabul: Fire Alarm System Needs Prompt Attention or #MustHaveNoFireBeforeMarch2019

We received a reaction about the OIG report basically saying “hey, I agree with all the violations listed by the OIG”. Our correspondent also thought the “funniest thing” included in the report is that OBO challenged the OIG qualifications. There appears to be serious concerns that sound fire protection engineering judgements are being overridden “on a regular basis.” There are also some questions/allegations about the qualifications of OBO folks making decisions concerning fire protection engineering — that if true, could potentially have serious consequences.

OPM says  that all Professional Engineering positions require a basic degree in engineering or a combination of education and experience — college-level education, training, and/or technical experience that furnished (1) a thorough knowledge of the physical and mathematical sciences underlying engineering, and (2) a good understanding, both theoretical and practical, of the engineering sciences and techniques and their applications to one of the branches of engineering. Also that the adequacy of such background must be demonstrated by one of the following: 1) Professional registration or licensure — Current registration as an Engineer Intern (EI), Engineer in Training (EIT)1, or licensure as a Professional Engineer (PE) by any State, the District of Columbia, Guam, or Puerto Rico. 2) Written Test — Evidence of having successfully passed the Fundamentals of Engineering (FE)2 examination or any other written test required for professional registration by an engineering licensure board in the various States, the District of Columbia, Guam, and Puerto Rico. Read more here.

In any case, you know that State/PA refused to respond to us during Tillerson’s watch but with Pompeo’s new guards in, we thought we should try asking questions again from its media professionals, coz, why not, hey?

We did receive a PA response months ago that says “we’ll look into it but may not have anything over the weekend”.  Lordy, short weekends and long weekends have come and gone and we have not heard anything back via email, fax, sign language, or telephatic signal.  Our follow-up email appeared to have also ended up in a black hole of bureaucratic shrugger-swagger.

In any case, we’ve addressed the same questions to State/OIG, and those folks reliably read and respond to email inquiries, and we received the following:

Ensuring the safety and security of Department personnel is paramount for the OIG. We give careful consideration to allegations relating to safety and security issues, including the one involving the Office of Fire Protection. Additionally, if anyone becomes aware of something that jeopardizes the safety and security of Department employees, they should report it immediately to the OIG hotline at OIG.state.gov/HOTLINE or at 1-800-409-9926.

About that report, here are a couple of examples that we understand, requires some folks to wear brown paper bags over their heads when reading:

OBO’s Technical Comment 10 | OBO disagreed with OIG’s statement: “According to PAE, a secondary loop was installed. However, rather than being routed separately, the existing fiber optic cables run in a parallel path. Because the fiber optic cables run in the same direction (as opposed to opposite directions representing a redundant circuit), damage to one part of the network can render sections of the network inoperable.” OBO stated that “it is perfectly acceptable for cables to run in the same direction. They cannot run in the same conduit. Additionally, the secondary loop is, in fact, a redundant circuit since there are two paths of travel one from the original loop and one from the secondary loop.”

OIG’s Reply | OIG agrees that cables can run in the same direction but cannot run in the same conduit. OIG found, however, that a number of the runs currently installed at Embassy Kabul did, in fact, have fiber optic cables bundled together in the same conduit. The photo below shows the current configuration at Embassy Kabul in which fiber optic cables are bundled together in the same conduit. This is contrary to NFPA standards for a redundant path. OIG made no changes to the report on the basis of this comment.

TA-DAA! Somebody stop these wild cables from running in the same conduit!

 

OBO’s Technical Comment 13 | OBO disagreed with OIG’s conclusion that “the improper installation of key components of Embassy Kabul’s fire alarm system needs immediate attention because of the potential safety risk to personnel and property.” OBO stated that it disagreed with OIG’s underlying assumptions and that OIG’s scope contained flaws.

OIG’s Reply | As set forth in this report, OBO is not in compliance with NFPA 72 regarding the requirement for a redundant path. In addition, a number of the runs currently installed at Embassy Kabul have fiber optic cables bundled together in the same conduit, which similarly fails to comply with NFPA 72. The NFPA codes and standards are designed to minimize the risk and effects of fire by establishing criteria for building, processing, design, service, and installation around the world. Failure to adhere to these requirements thus presents potential risk to embassy personnel and property. Therefore, the improper installation of key components of Embassy Kabul’s fire alarm system requires immediate attention. OIG made no changes to the report on the basis of this comment.

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U.S. Embassy Kabul: Fire Alarm System Needs Prompt Attention or #MustHaveNoFireBeforeMarch2019

Posted: 12:45am  ET

 

State/OIG has issued a Management Assistance Report sounding the alarm over the fire alarm system at the U.S. Embassy in Kabul. We should hope that no fire breaks out at post before March 2019. But do staffers need to sleep with buckets of sand next to their doors?

During the course of an audit of Bureau of Overseas Buildings Operations (OBO) construction projects at the U.S. Embassy in Kabul, Afghanistan, the Office of Inspector General (OIG) was alerted to potential risks to personnel and property due to the improper installation of the embassy’s fire alarm system. OIG concluded that the system was, in fact, improperly installed and did present safety risks. OIG is therefore issuing this Management Assistance Report to prompt immediate action to address the identified deficiencies.

OBO and the Bureau of Administration have undertaken a major office and residential expansion at the U.S. Embassy in Kabul. As part of this expansion, in June 2010, the bureaus contracted with Caddell Construction, Inc. (Caddell), to build a number of new facilities at the embassy. These facilities include residential and office buildings, warehouses, parking and vehicle maintenance facilities, power plants, perimeter walls, guard towers, and compound access control facilities. Caddell is required to install fire alarm systems in each of the new buildings throughout the compound as part of its contract.

Fire alarm control panels installed in 23 buildings on the embassy compound are key components of the fire alarm system. Fire alarm control panels monitor and control each fire alarm-initiating and signaling device through microprocessors and system software. Fire alarm control panels are connected throughout the embassy compound via fiber optic cables that transmit data between each building and to Post One, a communications center staffed by Marine Security Guards. The Marine Security Guards at Post One are on duty 7 days a week, 24 hours a day and are responsible for ensuring that communications are routed to appropriate responders during emergencies or security threats. When a fire emergency occurs at any building on the embassy compound, Post One is alerted through the network of fire alarm control panels. Post One, in turn, alerts the embassy fire department and other emergency response personnel.

In July 2017, the embassy’s principal operations and maintenance (O&M) contractor, PAE Government Services (PAE), discovered that underground fiber optic cables on the west side of the embassy compound were accidentally cut by a construction worker. As a consequence of the damage to the fiber optic cables, fire alarm control panels in eight buildings could not transmit data to Post One for more than 6 months. After completion of OIG’s fieldwork in January 2018, OIG shared its findings with OBO officials. In response, embassy facility managers took steps to repair the damaged fiber optic cables and restored connectivity between the affected buildings and Post One.

OIG also found that the existing fiber optic cable network does not have a separate redundant path as required by Section 12.3.7 of the National Fire Protection Association (NFPA 72) code.1

According to NFPA, a redundant path helps ensure the network’s continued functionality if one of the cables is damaged. Without a redundant path, damage in one location can render sections of the network inoperable. Additionally, OIG found that seven fire alarm control panels on the east side of the embassy compound are not connected to Post One. Rather, these seven control panels are on a separate network connected to a guard post staffed by contractor security guards on the east side of the compound. Engineers in OBO’s Office of Fire Protection told PAE that this configuration is inconsistent with OBO standards and that ideally all fire alarm control panels on the embassy compound should be connected to the Post One communications center.

According to OBO officials, because the fiber optic cable network is part of a larger project involving the construction of multiple buildings and facilities, there is no requirement to install a redundant path until the end of the entire construction project, which is currently scheduled to be completed in March 2019. Furthermore, according to OBO officials, because the seven fire alarm control panels on the east side of the embassy compound are in temporary structures, there is likewise no requirement that those structures be connected to Post One. Notwithstanding OBO’s position, OIG made two recommendations to Embassy Kabul, in coordination with OBO, to take immediate actions to correct the identified deficiencies because they pose potential risks to the safety of embassy personnel and property.

Read in full here (PDF).

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Senate Confirms Mitchell (EUR), Siberell (Bahrain), Bass (Afghanistan), Huntsman (Russia)

Posted: 12:40 am ET
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On September 28, the U.S. Senate confirmed the nomination for the new Assistant Secretary for State for EUR, and the nominees as chiefs of mission to Bahrain, Afghanistan, and Russia.

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“Stoned” Guy in the Street Ruins U.S. Embassy Kabul’s Supposed Drug-Free Workplace

Posted: 4:10 am ET
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The AFP reported last week that six employees of the U.S. Embassy in Kabul have been dismissed for drug use or possession.  The State Department confirmed that “six individuals were involved” but that they are not State Department employees according to AFP. The report does not indicate what drugs were used but Afghanistan remains the world’s top opium producer despite billions of dollar spent by the U.S. government there.

It’s not like this is the first time there have been major personnel issues at the U.S. Embassy in Afghanistan.

Some years ago both American and expatriate Diplomatic Security contract U.S. Embassy guard staff members (including supervisors) appeared naked in numerous photographs and were also photographed fondling each other. These photographed activities took place at parties in or around the guard staff housing compound, and were evidence of, not surprisingly, “a pattern of blatant, longstanding violations of the security contract.” See POGO writes to Secretary Clinton about US Embassy Kabul Guards.

In 2013, the Department of State’s Bureau of Diplomatic Security (DS) went looking for a contractor who would be responsible for administering drug tests to the estimated 1,300 security employees in Kabul. Noting that these “armed employees” in Kabul, who were “exposed to extreme conditions,” needed to be “reliable, stable, and show(ing) good use of judgment,” the cyclical drug testing (every six months) for amphetamines, opiates, benzodiazepines, barbiturates, cocaine, and marijuana was required.  So basically new contractors testing other contractors, see more here: State Dept Seeks Drug/Steroid Testing of Security Personnel in Afghanistan and Jerusalem.

But something obviously went wrong somewhere, hey? Sounds like the twice a year screening did not work. A person who appeared to be intoxicated was apparently noticed “wandering around in a state of confusion.” As a consequence, six U.S. Embassy Kabul mission members have been fired for allegedly using, possessing, and even selling illegal drugs. According to the Wall Street Journal, after investigators identified “the drug dealer” involved, his cellular phone was mined for contacts/leads and extensive searches of the embassy employees’ housing complex were launched, which led to the discovery of yet more drugs and more drug users.

According to the Wall Street Journal, most of the employees who were fired were American employees. Furthermore, this number allegedly includes contractors for Aegis/Garda. It is noteworthy that several years ago, dozens of Embassy Kabul guard staff members signed a petition accusing Aegis/Garda guard staff leaders of “tactical incompetence,” and shared that they had “a dangerous lack of understanding of the operational environment.” These American employees further called attention to serious gaps in the manned security of the compound, such as guard shortages at key guard positions.

In 2013, former Embassy Kabul security guards filed a class-action lawsuit against Aegis, claiming that the company refused to pay them for the overtime that they had worked while in Kabul. Though this lawsuit was later sent to arbitration, Senator Claire McCaskill (D-Mo.) noted her opposition to the State Department’s continued reliance on contractors for embassy security. “We’ve seen failure after failure after failure by these contracted individuals to be competent, professional, and thorough,” she stated.

Note that last year, the housing compound for U.S. Embassy Kabul security personnel was also hit by a bomb (see US Embassy Kabul: January 4 Attacks Target USG Employees at Camp Sullivan).  According to the Project on Government Oversight (POGO), the severity of the blast was significant. The blast radius was 100 meters wide, and the explosion left a crater that was fifteen feet deep. Half of the housing compound was rendered uninhabitable.

Aegis, the security contractor discussed above, was purchased by Garda/GardaWorld in 2015. Canada-based Garda, the world’s largest security services provider, acquired Aegis in order to expand their company presence throughout both the Middle East and Africa. Garda bids aggressively for embassy security contracts in places like Kabul. In 2015, it undercut former contractor Hart Security Australia with a three-year $72.3 million bid for Australia’s Department of Foreign Affairs and Trade (DFAT). In this case, Australian Security staff  reportedly faced a 60% wage reductions to keep their jobs. Read more about that here.

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Hopeless But Optimistic: Journeying through America’s Endless War in #Afghanistan (Excerpt)

Posted: 2:24 am ET
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Douglas Wissing previously wrote a book entitled, Funding the Enemy: How US Taxpayers Bankroll the Taliban.  He’s back with a new book, Hopeless but Optimistic: Journeying through America’s Endless War in Afghanistan. Kirkus Review calls it “a scathing dispatch” with “pungent, embittered, eye-opening observations of a conflict involving lessons still unlearned.”

As he gets into Kabul to embed with the military, the author notes “a USAID (United States Agency for International Development) billboard proclaiming women’s rights in English and Dari that few Afghan females can read, because almost 90 percent of them are still illiterate after more than a decade and $100 billion spent on grotesquely mismanaged US aid programs.”

That Ring Road?  Wissing writes, “During his frantic reelection push after the botched Iraq invasion, President George W. Bush decided that refurbishing the Ring Road on a yeehaw schedule in 2003 would show Afghans how things were done the American way. Well, it did. The highway is infamous for its poor construction and extravagant price.”

It’s that kind of book. It reminds us of Peter Van Buren’s We Meant Well book on Iraq.

A couple of notes, Chapter 35 titled Embassy includes a nugget about Embassy Kabul refusing to allow the author to meet with SIGAR John Sopko who was also at post, without a minder. Sopko, according to Wissing was furious, demanding a private meeting without embassy handlers but “the diplomats won’t budge.”

Chapter 36 talks about Loss.  A cynical USAID financial officer earlier told the author that “given the amount of money the United States was pushing on the Afghan insiders who were “bankers,” he didn’t blame them for stealing it.” This is in relation to the Bank of Kabul scandal that involved an almost $900 million Ponzi scheme of fraudulent loans. The chapter also talks about Anne Smedinghoff and four other Americans, including three soldiers and an interpreter lost during a suicide attack in Qalat. The author previously meet Smedinghoff during a visit to the embassy compound in Kabul where the latter acted as his minder, assigned to escort him for an interview with a Justice Department official who was working the Afghan Threat Finance Cell (ATFC).

The author told us that he find audiences in the U.S. are often surprised to learn that Afghanistan remains our largest foreign military engagement–$44 billion requested for FY 2017 (vs $5 billion for Syria) “to add to the trillion dollars already wasted.” He also notes that around 10,000 US troops are still there, along with up to 26,000 defense contractors.

We’re posting an excerpt of the book courtesy of Amazon Kindle/Preview:

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EEOC Finds @StateDept Liable Under the Rehabilitation Act in US Embassy Kabul Medical Clearance Denial

Posted: 12:21 am ET
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This is a case where an FSO previously diagnosed with rheumatoid arthritis was granted a Class 2 medical clearance for an assignment at the US Embassy in Kabul, Afghanistan.  While at post, the FSO developed pericarditis and was hospitalized in Kabul in 2013; she was subsequently medevaced to Texas. The FSO was later told by State/MED that she retained her Class 2 Medical Clearance, but it was not Kabul-approved.  In August 2013, the FSO filed an EEO complaint alleging that the State Department discriminated against her on the basis of disability. The State Department’s decision  notes that in denying her clearance, its medical officers failed to conduct a sufficient individualized assessment of the risk posed by Complainant’s medical condition and its impact on her ability to return safely to Kabul.  It held “that there was no evidence that the medical officers and Medical Review Panel took into account the duration of the risk, the nature and severity of the potential harm, and the likelihood that the harm will occur or the imminence of the potential harm, as required by the law.”  It also concluded that MED“improperly denied Complainant a Class 2 medical clearance (Kabul-approved).”  The FSO on appeal asserted that she was not provided with full relief, including reasonable attorney’s fees and costs. In response to that appeal, the State Department noted that its final decision was, get this — “erroneously issued.”

Summary of Case via EEOC:

In September 2011, Complainant was assigned to work as an Administrative Officer at the Agency’s Embassy in Kabul, Afghanistan.  Complainant had been diagnosed with ongoing rheumatoid arthritis since 1999. In conjunction with her assignment to Kabul, Complainant was reviewed by the State Department’s Office of Medical Services (State/MED) for a medical clearance.  Complainant was granted a Class 2 (Kabul-approved) medical clearance 2 and she started her duties in Kabul.  While on leave from Kabul in the United States in June 2012, Complainant saw a doctor and was prescribed a new medication for her arthritis called Leflunomide. At the time, Complainant did not report that she was taking this new medication to Agency medical officials.

In April 2013, Complainant developed pericarditis which led to her hospitalization in Kabul.  At that time, her physicians at the hospital advised her to stop taking Leflunomide and she did so.  Upon her release from the hospital, Embassy medical officials made the decision to send Complainant back to the United States for an evaluation by her own physicians. On May 7, 2013, Complainant departed Kabul for El Paso, Texas.

Upon her return to El Paso, Complainant was examined by her own physician (“Complainant’s Physician”) for clearance to return to Kabul.  She provided documentation to the Agency’s Office of Medical Services indicating that her physician had no concerns with her return to Kabul. On May 31, 2013, Complainant was initially informed by the Agency’s physician (“Agency Physician”) that her medical clearance for Kabul would be renewed.

However, on June 3, 2013, the Agency Physician informed her that she retained her Class 2 Medical Clearance, but was not Kabul-approved.  Complainant was told that the reason for the denial of her clearance to return to Kabul was her use of Leflunomide, a drug banned by the Department of Defense for use by personnel assigned to Afghanistan.3  As Complainant had stopped using the medication since her April 2013 hospitalization, she appealed the denial of her medical clearance for Kabul.  Her appeal was denied by the Agency’s Medical Review Panel on the grounds that her cessation of Leflunomide was too recent. The Panel indicated that Complainant needed to show a period of at least 12 month of “clinical stability” before she could return to Kabul.  The Panel defined clinical stability as “the absence of systemic clinical manifestations of pericarditis and rheumatogic problems.”  There was some speculation that, because Leflunomide reduces resistance to infection, Complainant’s pericarditis may have resulted from its use.  Complainant then requested an Administrative Waiver to allow her to return to her position in Kabul.  That waiver was also denied on June 19, 2013.  Since May 2013, Complainant has been working from the Agency’s El Paso, Texas, Intelligence Center.

On August 22, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of disability (rheumatoid arthritis) when her “Return to Post Authorization” was not reinstated and she was prevented from returning to work at the U.S. Embassy in Kabul.

At the conclusion of the investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ).  However, on March 10, 2014, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In its decision, the Agency conceded the Complainant was an individual with a disability as defined by the Rehabilitation Act.  The Agency further determined that Complainant was an otherwise qualified individual with a disability, as she had been performing in the position in question in Kabul for the preceding two years, and had the requisite knowledge, experience, skill, and education to perform the position.

The Agency’s decision then noted that Complainant was denied a Class 2 Medical Clearance (Kabul-approved) because of the perceived risk of harm she posed to herself due to her recent use of the drug Leflunomide. As a result of this determination, Complainant was prevented from returning to her previously-approved assignment in Kabul.  The Agency’s decision went on to conclude that, in denying her clearance, its medical officers failed to conduct a sufficient individualized assessment of the risk posed by Complainant’s medical condition and its impact on her ability to return safely to Kabul.  Specifically, Agency held that there was no evidence that the medical officers and Medical Review Panel took into account the duration of the risk, the nature and severity of the potential harm, and the likelihood that the harm will occur or the imminence of the potential harm, as required by the law.  The Agency decision noted that medical opinions that supported Complainant ability to safely return to Kabul were improperly given little weight during the medical clearance determination.  Accordingly, the Agency’s final decision concluded that it improperly denied Complainant a Class 2 medical clearance (Kabul-approved).

Based on its finding that Agency medical staff had failed to provide Complainant with an individualized assessment, the Agency ordered the Office of Medical Services to go forward and actually conduct the required individualized assessment of Complainant’s medical condition and her ability to return to the Administrative Officer position at the Agency’s Embassy in Kabul without posing a significant risk of substantial harm to herself or others.

This appeal followed.  On appeal, Complainant did not challenge the findings by the Agency, but asserted that she was not provided with full relief, including reasonable attorney’s fees and costs.

In response to the appeal, the Agency noted that its final decision was erroneously issued in light of Complainant’s previous request for a hearing.  As such, the Agency argued that the final decision should be voided.  In response, Complainant argued that the final decision should not be considered void and the matter should not be remanded for a hearing.

EEOC ANALYSIS AND FINDINGS: Violation of Rehabilitation Act

As an initial matter, we find that Complainant’s statement on appeal constitutes a withdrawal of her earlier hearing request.  As such, we deny the Agency’s request to void its final decision.

In that decision, the Agency found that its medical staff failed to conduct a proper individualized assessment as required by the Rehabilitation Act when Complainant was prevented from returning to work at the U.S. Embassy in Kabul.  Complainant does not challenge the Agency’s findings in its final decision.  As such, we affirm the Agency’s specific findings.  However, the Agency did not expressly state that its actions constituted discrimination in violation of the Rehabilitation Act.

As evidenced by the Agency’s final decision, there is no dispute that Complainant is an individual with a disability who was otherwise qualified for the position in she had previously held in Kabul. In other words, she met the skill, experience, education and other job requirements to perform the duties of the position in Kabul, apart from the Agency’s decision to retract her medical clearance for work in Kabul.

The Agency noted in its findings in its own decision that Complainant’s Physician provided medical documentation that Complainant was no longer taking Leflunomide, the drug of concern, had not had flare-ups of her medical condition, and had embarked on a healthier lifestyle. However, the Agency conceded that Complainant’s supporting medical documentation was improperly “given little if any weight.”  The Agency also admitted in it decision that the denial of the Class 2 Medical Clearance was due to the “perceived risk of harm she posed to herself or others” and not on an actual risk.  Based on the record including the medical evidence provided by Complainant’s Physician, we find that Complainant has shown that she was qualified for the position in question in Kabul and was only prevented from doing so based on the Agency’s perception that she posed a safety risk.  This moves the burden of proof squarely to the Agency to prove that there is a significant risk of substantial harm. Massingill v. Dep’t. of Veterans Affairs, EEOC Appeal No. 01964890 (July 14, 2000).  See also, Branham v. Snow, 392 F.3d 896 (7th Cir. 2005) (“employer’s burden to show that an employee posed a direct threat to workplace safety that could not be eliminated by reasonable accommodation”); Hutton v. Elf Atochem N. America, 273 F.3d 884, 893 (9th Cir. 2001) (direct threat affirmative defense).

Here, as already noted, the Agency’s own decision concluded that Complainant was denied a Class 2 Medical Clearance because of perceived risk of harm she posed to herself or others.  Our regulations permit the Agency to deny job assignments on the basis of disability where such an assignment would pose a direct threat. See 29 C.F.R. § 1630.2(r). A “direct threat” is defined as a “significant risk of substantial harm” that cannot be eliminated or reduced by reasonable accommodation. Interpretive Guidance of Title 1 of the Americans with Disabilities Act, Appendix to 29 C.F.R. Part 1630, § 1630.2(r); Echazabal v. Chevron U.S.A., Inc. 536 U.S. 73 (2002); 29 C.F.R. § 1630.2(r).

The issue in finding direct threat is “not…whether a risk exists, but whether it is significant.” Bragdon v. Abbott, 524 U.S. at 649. A direct threat must be based on an individualized assessment of the individual that takes into account: (1) the duration of the risk, (2) the nature and severity of the potential harm, (3) the likelihood that the potential harm will occur, and (4) the imminence of the potential harm. Interpretive Guidance on Title I of the Americans With Disabilities Act, Appendix to 29 C.F.R. § 1630.2(r). The individual assessment must be based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence. Id. A determination of significant risk cannot be based merely on an employer’s subjective evaluation, or, except in cases of a most apparent nature, merely on medical reports.

The Agency held in its final decision that it “failed to conduct a sufficiently individualized assessment of the risk posed by Complainant’s medical condition, and its impact on her ability to return safely to Kabul.  There is no evidence that the following factors were taken into account: 1) the duration of the risk; 2) the nature and severity of the potential harm; 3) the likelihood that the potential harm will occur; and 4) the imminence of the potential harm.”  Based on the record and the Agency’s own findings in its decision, we determine that the Agency has not met its burden of establishing that Complainant’s return to Kabul would have posed a direct threat.  Accordingly, the Agency’s defense to denying Complainant the Class 2 Medical Clearance was not established, and the Agency is liable under the Rehabilitation Act.

As a result of this violation of the Rehabilitation Act, Complainant is entitled to make-whole relief, which the Agency did not provide her in its final decision.  First, the Agency should offer Complainant the assignment in Kabul if she chooses to return. See Nathan v. Department of Justice, EEOC Appeal No. 0720070014 (July 19, 2013) (awarding the complainant the position for which he applied following a determination that the agency violated the Rehabilitation Act when it medically disqualified him without an individualized assessment). In addition, Complainant correctly argues that she should be awarded reasonable attorney’s fees and legal costs for processing her EEO complaint, as well as the opportunity to support her claim for compensatory damages. Also, we find that the Agency provide training to relevant management highlighting the Agency’s obligations with respect to the Rehabilitation Act.

The EEOC concludes the case with a modification of the State Department’s  final decision and remanded the matter to the agency with the following order signed by Carlton M. Hadden on October 25, 2016.  The EEOC case file notes that compliance with the Commission’s corrective action is mandatory.

The Agency is ordered to take the following remedial action:

1. Within 60 calendar days from the date this decision is issued, the Agency shall offer Complainant an assignment in Kabul substantially similar to the one she lost. If Complainant rejects the offer of the assignment, the Agency shall use the date of rejection for purposes of back pay calculations as noted below.  If Complainant accepts the assignment, the Agency shall use the date Complainant assumes the assignment for purposes of back pay.

2. The issue of compensatory damages is REMANDED to the Agency. On remand, the Agency shall conduct a supplemental investigation on compensatory damages, including providing the Complainant an opportunity to submit evidence of pecuniary and non-pecuniary damages. For guidance on what evidence is necessary to prove pecuniary and non-pecuniary damages, the parties are directed to EEOC Enforcement Guidance: Compensatory and Punitive Damages Available Under § 102 of the Civil Rights Act of 1991 (July 14, 1992) (available at eeoc.gov.) The Agency shall complete the investigation and issue a final decision appealable to the EEOC determining the appropriate amount of damages within 150 calendar days after this decision is issued.

3. The Agency shall determine if Complainant is entitled to an award of back pay as a result of the denial of her return to her assignment in Kabul.  The Agency shall determine the appropriate amount of back pay, with interest, and other benefits due Complainant, pursuant to 29 C.F.R. § 1614.501, no later than sixty (60) calendar days after the date this decision is issued.  The Complainant shall cooperate in the Agency’s efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency.  We note that the Agency should consider if there would have been a difference in locality pay and benefits to Complainant including but not limited to promotions or other incentives for an assignment in Kabul, Afghanistan.

If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to the Complainant for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due.  The Complainant may petition for enforcement or clarification of the amount in dispute.  The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled “Implementation of the Commission’s Decision.”

4. Within sixty (60) days from the date this decision is issued, the Agency is ordered to provide at least eight (8) hours of training to the responsible officials covering their responsibilities under the Rehabilitation Act. The training shall cover the Agency’s obligations regarding the provision of reasonable accommodation, as well as its obligation to conduct an individualized assessment pursuant to the direct threat defense.

5. If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she is entitled to an award of reasonable attorney’s fees and costs incurred in the processing of the complaint, including this appeal.  29 C.F.R. § 1614.501(e).  The award of attorney’s fees shall be paid by the Agency.  The attorney shall submit a verified statement of fees to the Agency — not to the Equal Employment Opportunity Commission, Office of Federal Operations — within sixty (60) calendar days of this decision is issued.  The Agency shall then process the claim for attorney’s fees in accordance with 29 C.F.R. § 1614.501.

The State Department was also ordered to post this order within 30 days of the date of the decision for a duration of 60 consecutive days.

The Agency is ordered to post at its Washington D.C. facility copies of the attached notice.  Copies of the notice, after being signed by the Agency’s duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision is issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted.  The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material.  The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled “Implementation of the Commission’s Decision,” within 10 calendar days of the expiration of the posting period.

 

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US Embassy Kabul Gets a New Chargé d’ Affaires #HugoLlorens

Posted: 1:06 am ET
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Via state.gov:

U.S. Secretary of State John Kerry poses for a photo with Ambassador Hugo Llorens at the U.S. Department of State in Washington, D.C., on November 21, 2016. Ambassador Llorens, formerly the Consul General at the U.S. Consulate in Sydney, Australia, will become the new Chargé d' Affaires at the U.S. Embassy in Kabul, Afghanistan. [State Department photo/ Public Domain]

U.S. Secretary of State John Kerry poses for a photo with Ambassador Hugo Llorens at the U.S. Department of State in Washington, D.C., on November 21, 2016. Ambassador Llorens, formerly the Consul General at the U.S. Consulate in Sydney, Australia, will become the new Chargé d’ Affaires at the U.S. Embassy in Kabul, Afghanistan. [State Department photo/ Public Domain]

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Taliban Attacks German Consulate, Building Previously Abandoned by USG For Being “Too Dangerous”

Posted: 2:04 am ET
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In December 2009, the US Embassy in Kabul announced that Ambassador Karl W. Eikenberry and the Foreign Minister of the Islamic Republic of Afghanistan, Dr. Rangin Dadfar Spanta, signed a new agreement under which the United States would lease an historic 1930’s hotel in Mazar-e-Sharif for use as the new U.S. Consulate. At that time, the United States has agreed to invest approximately $26 million to renovate the Mazar Hotel facility so that it may be used as an office building and housing for consulate employees (see US Consulate in Mazar-e-Sharif Moving Forward and DIY Home Renovation Opportunity in Mazar-e-Sharif.

After signing a 10-year lease and spending eventually more than $80 million on a site envisioned as the United States’ diplomatic hub in northern Afghanistan, American officials were reported to have abandoned their plans, deeming the location for the proposed compound too dangerous according to WaPo in May 2012. The WaPo report cited an internal memo written by Martin Kelly, then acting management counselor at the U.S. Embassy in Kabul saying that the facility was far from ideal from the start:

The compound, which housed a hotel when the Americans took it on, shared a wall with local shopkeepers. The space between the outer perimeter wall and buildings inside — a distance known as “setback” in war zone construction — was not up to U.S. diplomatic standards set by the State Department’s Overseas Security Policy Board. The complex was surrounded by several tall buildings from which an attack could easily be launched.[…] Responding effectively to an emergency at the consulate would be next to impossible, Kelly noted, because the facility does not have space for a Black Hawk helicopter to land. It would take a military emergency response team 11 / 2 to 2 hours to reach the site “under good conditions,” he said.”

Also this:

In December (2011), embassy officials began exploring alternative short-term sites for their diplomatic staff in northern Afghanistan. A Western diplomat familiar with the situation said the United States has sought, so far in vain, to persuade the German and Swedish governments to sublet it. The diplomat, who spoke on the condition of anonymity because he was not authorized to speak about the matter, said European diplomats have found the prospect laughable.”

Read more US Consulate Mazar-e-Sharif: $80 Million and Wishful Thinking Down the Drain, and Not a Brake Too Soon.

In June 2013, the German Consulate opened at the old Mazar Hotel in Mazar-e-Sharif.

Last Thursday, a suicide bomber rammed a truck into the German Consulate in Mazar, killing at least six civilians and wounding 120.  The Telegraph reported that Afghan special forces have cordoned off the consulate, previously well-known as Mazar Hotel, as helicopters flew over the site and ambulances with wailing sirens rushed to the area after the explosion. On November 12, the US Embassy in Kabul announced that it will be closed for routine services on Sunday, November 13 as a temporary precautionary measure.

We don’t as yet know if this property with a 10-year USG leased was sublet by the German Government or purchased by the Germans from its owners. We will update if we know more. There were local casualties but there were no reported casualties for German consulate workers. We understand that this was a reasonably secure building after all the fit-out and upgrade work was done prior to the USG suspending the project in 2012 but that the site is hemmed in by other structures and too close to high-traffic venues like the Blue Mosque. Then Ambassador Ryan Crocker decided that the location was too risky when he arrived in Afghanistan and so the USG abandoned this building.