EEOC: @StateDept Failed to Provide Legitimate, Nondiscriminatory Reason for Not Promoting Complainant

 

Via EEOC: Terrie M. v. Dep’t of State,  EEOC Appeal No. 2019002167 (Sept. 22, 2020).
Agency Failed to Provide Legitimate, Nondiscriminatory Reason for Not Promoting Complainant.
Complainant, a Consular Section Chief at a U.S. Embassy, alleged, among other things, that the Agency discriminated against her on the basis of sex when it failed to promote her.  The Commission found that Complainant established a prima facie case of sex discrimination, and the Agency failed to articulate a legitimate, nondiscriminatory reason for its action.  Complainant was qualified for a promotion, as evidenced by her Employee Assessment Reviews, and responding management officials acknowledged that Complainant was eligible for the promotion.  Moreover, Complainant asserted that the prior curtailments of her overseas assignments due to her high-risk pregnancy impacted the ranking she received in the promotion process.  Therefore, Complainant had raised an inference that her sex was a factor in her non-selection for promotion.  The Commission found that the Agency failed to overcome Complainant’s prima facie case because the evidence was not sufficient to provide a specific, clear, and individualized explanation as to why Complainant was not selected for promotion.  While the Agency explained the general mechanics of the promotion process, it failed to provide an individualized explanation for Complainant’s specific situation.  The Agency was ordered, among other things, to retroactively promote Complainant, with appropriate back pay and benefits, and investigate her claim for damages.  Terrie M. v. Dep’t of State,  EEOC Appeal No. 2019002167 (Sept. 22, 2020).
Excerpt:

In the instant complaint, Complainant has alleged that because she is a woman who got pregnant  twice and had to curtail her assignments as a result, she was disadvantaged in the selection for promotion process. To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). To establish a prima facie case of sex discrimination, a complainant must show that: (1) she is a member of a protected group; (2) she is qualified for her position; (3) she suffered an adverse employment action; and (4) the circumstances give rise to an inference of discrimination.

Based on record evidence, we find that Complainant has established a prima facie case of sex discrimination. First, Complainant belongs to a protected group as she is female. Complainant is also qualified for promotion to the FSO-03 position. HDR1 also acknowledged that Complainant was eligible for the promotion; and the evidence shows that Complainant was a high-performing FSO as demonstrated by her EARs. Moreover, Complainant has asserted that she believes her prior curtailments of her assignments overseas due to her high-risk pregnancy impacted the ranking she received in the promotion process. Therefore, Complainant has raised an inference that her sex was a factor in her non-selection for promotion.3 Because Complainant established a prima facie case of sex discrimination, the Agency now has the burden of producing a legitimate, non-discriminatory explanation for not selecting Complainant for promotion.

Here, DDHR1, corroborated by DDHR2, explained that Complainant was not selected for promotion because she had been mid-ranked by the Selection Board. To support this explanation, the record only includes the same generalized information about the rules governing the selection process that the Commission had previously found insufficient, and which resulted in the complaint being remanded for a supplemental investigation. The record does not include pertinent documentation reviewed by the Selection Board and information regarding comparators. Also missing from the record are comparative data related to Complainant’s protected class or affidavits from Selection Board members; and thestatement of the Agency’s reasons for mid-ranking Complainant that led to her consequent non-selection for promotion. Moreover, the supporting testimony provided by DDHR2 does not add relevance to the instant complaint because, as Complainant stated, DDHR2 had only been in her position since June 1, 2018, nearly four years after Complainant’s non-promotion incident. DDHR2 herself indicated that she had no personal knowledge about Complainant or her non-promotion. In fact, the extent of the Agency’s explanations for its actions is that promotion decisions are based only on the documentation in the candidates’ Official Performance Folder for the most recent five years and at grades FS-02 and above, on the security incident records. The two DDHRs also stated that PE staff does not have information related to, nor will they address, personal or assignment decisions of employees, and only from the material submitted by the employee to his/her eOPF could this information be known.

We find that the evidence presented by the Agency is not sufficient to provide a specific, clear, and individualized explanation as to why Complainant was not selected for promotion in 2014. The Agency explained the general mechanics of the promotion process but failed to provide an individualized explanation for Complainant’s specific situation. See, e.g., Koudry v. Dep’t of Educ., Request No. 0520100196 (Apr. 13, 2010) (discrimination found where agency merely explained the mechanics of selection process, provided list of candidates deemed best qualified, and summarized applications of selectee and complainant, but failed to provide statements from selecting officials explaining how complainant’s qualifications were evaluated compared to selectee’s qualifications). The record does not indicate how the Agency determined which 76 candidates were selected for promotion or why Complainant was not one of the 76. Merely indicating that the Selection Boards rely only on information in candidates’ eOPF for making promotion decisions is not enough. Moreover, we add that the record also does not identify how or why the 76 candidates selected for promotion in 2014 received their scores and rankings. Simply stating that candidates who are mid-ranked do not receive scores is inadequate.

Moreover, nothing in the record provides a basis for dispelling Complainant’s belief that the staff of HR/PE had access to her curtailment memo as well as access to her personnel files which contained information about her pregnancy and presumably communicated with post leadership about the curtailment. Neither did the Agency refute Complainant’s assertion that the Board may have been aware of her pregnancy because the panel works closely with HR on promotions; and that the Board was also aware of the gaps in her tours and the shortened lengths of her tours because that was reflected in her personnel and evaluation files. As the Agency never presented any testimony from the Board members who reviewed Complainant’s promotion materials, we are left with only Complainant’s unrebutted assertions.

We note DDHR2’s statements that the Board notes are only retained for one year after dismissal of the FSSB and, therefore, were no longer available. In that regard, because Complainant filed her EEO complaint within a year of her non-selection for promotion, those statements should have been made available to the Investigator, given there was an ongoing EEO complaint being processed on this selection. See EEOC regulations at 29 C.F.R. Section 1602.14 (requiring employers to retain “all personnel records relevant to the charge or action until final disposition”

ORDER (D0617)
The Agency is ordered to take the following remedial actions:
I. The Agency will promote Complainant to FS-03 retroactively to the date she would have been promoted in 2014 absent discrimination, within thirty (30) calendar of the date this decision is issued.5 II. The Agency shall pay Complainant back pay with interest from the date in 2014 when Complainant would have started in the FS-03 position. 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 was issued. The Agency will ensure that all tax consequences are taken into account. 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. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to Complainant for theundisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. 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.”
III. The Agency will conduct and complete a supplemental investigation on the issue of Complainant’s entitlement to compensatory damages and will afford her an opportunity to establish a causal relationship between the Agency’s discriminatory action and her pecuniary or non-pecuniary losses, if any.  ….

The order is accompanied by a “Posting Order” which required the State Department to post the EEOC Notice signed by agency representative in DOS Washington, DC offices – in both hard copy and electronic format within 30 calendar days of the decision dated September 22, 2020, and to remain in place for 60 consecutive days in “conspicuous places”.  Anyone saw this posting order anywhere in the obscure corners of the Intranet?
Having seen the State Department  and the federal government negotiate on claims for damages like this, we would not be surprised if the negotiations for damages would run on not just for weeks, but months, even years. The goal is not really to find an agreement — the government has lawyers with limitless hours billable to Uncle Sam — the goal appears to be to negotiate up to the point where the complainant is exhausted that he/she would take whatever deal the government offers. Someday, somebody should calculate the costs when the government drag on these negotiations, as opposed to expeditious settlement when it is found to be in the wrong.
Read in full below:

Click to access 2019002167.pdf

 

Biden Nominates John Bass to be Under Secretary of State For Management

 

President Biden announced his intent to nominate former Ambassador John Bass to be the next Under Secretary of State for Management. The WH released the following brief bio:

John R. Bass, Nominee for Under Secretary of State for Management

John R. Bass, a career member of the Senior Foreign Service, class of Career Minister, currently is a Senior Advisor at the Department of State’s Foreign Service Institute. He has served as Ambassador to the Islamic Republic of Afghanistan, Ambassador to the Republic of Turkey, and Ambassador to the Republic of Georgia.  Previously, Bass focused, among other things, on supporting U.S. government efforts to mobilize allies and marshal resources to combat terrorism and instability in Iraq, Syria and Southwest Asia.  He served at seven U.S. Missions overseas including as Team Leader of Provincial Reconstruction Team – Baghdad at the American Embassy in Baghdad, Iraq.  In addition, he was the Executive Secretary of the State Department and held other senior leadership positions at the Department of State.  Bass earned an A.B. Cum Laude from Syracuse University. 

According to his online bios, Ambassador Bass began his diplomatic career in 1988 with early postings reportedly in Chad, Belgium, the Netherlands, and Italy.
In 1992, he was confirmed by the U.S. Senate for appointment as Foreign Service Officers of Class Four, Consular Officers and Secretaries in the Diplomatic Service of the United States of America.
In 1998, he went to work for Deputy Secretary of State Strobe Talbott (1994-2001) first as a special assistant for Europe and Eurasia and later as Talbott’s chief of staff in 2000 (presumably until Talbott’s departure from Foggy Bottom in 2001).
He served at the U.S. Embassy in Rome from 2002 to 2004.
From 2004 to 2005, Bass was a special advisor to Vice President Dick Cheney for Europe and Eurasia.
From 2005-2008, Bass was director of the State Department Operations Center during Condoleezza Rice’s tenure as secretary of state.
About 19 years after joining the Foreign Service, he was promoted into the Senior Foreign Service (SFS). In 2007, he was confirmed as a Career Members of the Senior Foreign Service of the United States of America, Class of Counselor.
He led the Baghdad Provincial Reconstruction Team (PRT) from 2008-2009.
President Obama nominated him as Ambassador to Georgia where he served from August 2009 to 2012.
In 2011, he was promoted within the Senior Foreign Service, Class of Minister-Counselor
He served as Special Assistant to the Secretary of State and Executive Secretary from 2012–2014, partly during Clinton’s tenure (2009-2013), and during Kerry’s tenure (2013-2017).
He served as Obama’s Ambassador to Turkey from 2014-2017
He served as  Trump’s Ambassador to Afghanistan from December 2017-January 2020.
Some 10 years after his promotion into the SFS, he was promoted within the Senior Foreign Service of the United States of America, Class of Career Minister in 2017.
In January 2020, he stepped down from a two-year tenure as Ambassador to Afghanistan.
We’re not sure where he went after Kabul but 18 months later, he was back in the news.
On July 21, 2021, President Biden announced his intent to nominate him as Under Secretary for Management at the State Department.
On August 18, the State Department sent him to Kabul to help with the evacuation (see @StateDept Sends M Nominee John Bass to Kabul to Leverage “Logistics Experience” in Evacuation).
As of this writing, his nomination (PN922 ) is pending at the Senate Foreign Relations Committee.
There is no/no other position in Foggy Bottom that has a more significant impact on the lives of employees and family members than the Under Secretary of State for Management. Now, we know that press clips say this appointment is part of the Biden’s administration’s “efforts to revive a demoralized diplomatic corps.”   We’ve also heard some quarters argue that the nominee is a 7th floor denizen who has never served in the Bureau of Administration or any of the functional bureaus under M, etc. etc. Remains to be seen either way what impact he makes once he is in office; he will be facing not just morale issues but also a host of internal management challenges.
Some added perspective –Ambassador Bass is not the secretary of state’s BFF unlike his predecessor; one could consider that good news. Also, he’s been in the service for 33 years, so with few exceptions, he knows more than most people appointed as State/M. He won’t need six months getting to know the institution and learning all the acronyms! If confirmed, he would only be the third career diplomat appointed as Under Secretary for Management (the others being Ronald Ian Spiers who served as “M” from 1983–1989 and Patrick F. Kennedy  who served from 2007–2017).
Hey, three career appointees out of the total 16 appointees since 1953 is a record!
Also good news, Ambassador Bass doesn’t have an Operation Anvil baggage coming into the job currently encumbered by …. ah, what were they thinking?!

Related posts:

ROK Awards Ex-Ambassador Harry Harris the Gwanghwa Medal of Diplomatic Merit

 

 

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Biden Taps Julissa Reynoso Pantaleon as Ambassador to Spain and Andorra

 

President Biden recently announced his intent to nominate Julissa Reynoso to be the next U.S. Ambassador to Spain and Andorra. The WH released the following brief bio:

Julissa Reynoso Pantaleon, Nominee for Ambassador Extraordinary and Plenipotentiary to the Kingdom of Spain and to the Principality of Andorra

Julissa Reynoso is an Assistant to the President and Chief of Staff to Dr. Jill Biden, and the Co-Chair of the Gender Policy Council at the White House.  A former U.S. Ambassador to Uruguay, Reynoso also served as Deputy Assistant Secretary of State in the Bureau of Western Hemisphere Affairs.  She is a former partner at the international law firm of Winston & Strawn LLP, in New York, and served on the faculty of Columbia University School of Law and School of International and Public Affairs.  Reynoso is widely published in English and Spanish on an array of issues including comparative law, regulatory reform, community organizing, immigration policy, and Latin American politics for both popular press and academic journals.  She holds a B.A. in Government from Harvard University, a Masters in Philosophy from the University of Cambridge in the United Kingdom and a J.D. from Columbia University School of Law.  She clerked for the Honorable Federal Judge Laura Taylor Swain.  She is fluent in Spanish.

If confirmed, the former Ambassador to Uruguay Julissa Reynoso would succeed political appointee Richard D. Buchan III who served as Ambassador to Spain from January 18, 2018–January 2021. According to AFSA’s ambassador tracker, all but five of 19 ambassadors to Spain (73.7%) since 1960 were political appointees.

Foreign Service Posts Mark the 20th Anniversary of #September11

 

CDC Requires COVID-19 Vaccination For Immigrant Visa Applicants Effective 10/1/21

 

Via CDC: CDC Requirements for Immigrant Medical Examinations: COVID-19 Technical Instructions for Panel Physicians:

The current pandemic of Coronavirus Disease 2019 (COVID-19) has been determined by the World Health Organization (WHO) to be a public health emergency of international concern (PHEIC) under the International Health Regulations. COVID-19 meets the definition of a quarantinable communicable disease under 42 USC 264 and Executive Order 13295, as amended by Executive Order 13375 and 13674. Specifically, COVID-19 meets the definition of severe acute respiratory syndromes as specified by Presidential Executive Order 13674external icon (issued July 31, 2014), thus making it a Class A Inadmissible Condition.

Applicants, defined in these Technical Instructions as people applying for immigrant or refugee status, as well as non-immigrants who are required to have an overseas medical examination, are medically screened days or weeks prior to travel to the United States (US). Thus, a negative screening for COVID-19 at the time of the medical evaluation does not guarantee the applicant will not have COVID-19 at the time of immigration to the United States.

A combination of vaccination, strategic testing, and routine infection control practices will provide the best protection from COVID-19 for applicants and US communities. These instructions provide requirements for COVID-19 vaccination and testing for applicants.  The Instructions in this document are to be followed for COVID-19 when assessing applicants from all countries.  These Technical Instructions are effective from October 1, 2021 until the Centers for Disease Control and Prevention (CDC) determines these Technical Instructions are no longer needed to prevent the importation and spread of COVID-19.
[…]

Other reasons why an applicant might not complete a COVID-19 vaccine series:

  • Applicant may request a waiver based on religious or moral convictions
    If an applicant objects to vaccination based on religious or moral convictions, it must be documented that the applicant is requesting an individual waiver based on religious or moral convictions. This is not a blanket waiver. The applicant will have to submit a waiver request to US Citizenship and Immigration Services (USCIS). USCIS will determine if this type of waiver is granted, not the panel physician or CDC.
  • Applicant refuses a COVID-19 vaccine series in part or entirety
    If an applicant refuses one or more doses of an approved COVID-19 vaccine series that is medically appropriate for and available to the applicant, it should be documented that the vaccine requirements are not complete and that the applicant refuses vaccination. This applicant is Class A and is inadmissible to the United States.

Read the entire guidance here.

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@StateDept Announces Tiered Approach in Immigrant Visa Prioritization

 

Via travel.state.gov:
As noted in our recent visa services operating status update, the Department of State is committed to sharing the current status of our worldwide visa operations.  As part of that effort, we would like to clarify how our embassies and consulates are prioritizing immigrant visa applications, as the Department works to reduce the backlog of such applications resulting from travel restrictions and operational constraints caused by the global COVID pandemic.
The health and safety of our personnel, U.S. citizens seeking assistance abroad, individuals seeking immigration benefits, and local populations is paramount.  Posts that process both immigrant and nonimmigrant visas are prioritizing immigrant visa applications while still providing some nonimmigrant visa services.  However, the volume and type of visa cases each post will process continues to depend on local conditions, including restrictions on movement and gathering imposed by host country governments.  In addition, consistent with U.S. government guidance on safety in the federal workplace, U.S. embassies and consulates have implemented social distancing and other safety measures, which have reduced the number of applicants consular sections are able to process in a single day.  Consular sections will resume providing all routine visa services as it is safe to do so in that particular location.
[…]
Consistent with those objectives, U.S. embassies and consulates are using a tiered approach to triage immigrant visa applications based on the category of immigrant visa as they resume and expand processing.  While our consular sections, where possible, are scheduling some appointments within all four priority tiers every month, the following lists the main categories of immigrant visas in priority order:
      • Tier One: Immediate relative intercountry adoption visas, age-out cases (cases where the applicant will soon no longer qualify due to their age), certain Special Immigrant Visas (SQ and SI for Afghan and Iraqi nationals working with the U.S. government), and emergency cases as determined on a case-by-case basis.
      • Tier Two:  Immediate relative visas; fiancé(e) visas; and returning resident visas
      • Tier Three: Family preference immigrant visas and SE Special Immigrant Visas for certain employees of the U.S. government abroad
      • Tier Four: All other immigrant visas, including employment preference and diversity visas
Many embassies and consulates continue to have a significant backlog of all categories of immigrant visas.  This prioritization plan instructs posts to maximize their limited resources to accommodate as many immediate relative and fiancé(e) cases as possible with a goal of, at a minimum, preventing the backlog from growing in these categories and hopefully reducing it.
Read the full announcement here.
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Biden to Nominate @ColumbiaLaw’s Sarah H. Cleveland to be @StateDept Legal Adviser

 

President Biden recently announced his intent to nominate Sarah H. Cleveland to be the next Legal Adviser of the State Department. The WH released the following brief bio:

Sarah H. Cleveland, Nominee for Legal Adviser of the Department of State

Sarah H. Cleveland is an American law professor and expert in international law and the constitutional law of U.S. foreign relations.  A native of Alabama, she holds the Louis Henkin Chair in Human and Constitutional Rights and is Faculty Co-Director of the Human Rights Institute at Columbia Law School. She previously served as the Co-Coordinating Reporter of the American Law Institute’s Restatement (Fourth) of the Foreign Relations Law of the United States (2018), and as Counselor on International Law to the Legal Adviser of the U.S. Department of State.  She was nominated by the U.S. government and served as an independent expert on the United Nations Human Rights Committee (2015-18) and the Venice Commission of the Council of Europe (2013-19). Cleveland began her career as a Skadden Fellow representing migrant farmworkers with Florida Legal Services, and then joined the faculty at the University of Texas School of Law. The author of numerous publications, she also has taught at Oxford, Harvard, Michigan, Sciences Po Paris, Paris II Panthéon-Assas, and the European University Institute, Florence.  She earned a Bachelor’s Degree with honors at Brown University (Junior Phi Beta Kappa); a Master’s Degree at Oxford University, where she studied as a Rhodes Scholar; and a J.D. at Yale University Law School.  She clerked for Judge Louis F. Oberdorfer on the United States District Court for the District of Columbia, and then for Supreme Court Justice Harry A. Blackmun.

Related posts:

Nomination: Amb David R. Gilmour to be U.S. Ambassador to the Republic of Equatorial Guinea

President Biden recently announced his intent to nominate David R. Gilmour to be the next U.S. Ambassador to Equatorial Guinea. The WH released the following brief bio:

David R. Gilmour, Nominee for Ambassador Extraordinary and Plenipotentiary to the Republic of Equatorial Guinea

David R. Gilmour, a career member of the Senior Foreign Service, class of Minister-Counselor, is the Chargé d’Affaires a.i. at the U.S. Embassy in N’Djamena, Chad.  He is a former U.S. Ambassador to the Togolese Republic.  He has served in the Bureau of African Affairs at the Department of State as Deputy Assistant Secretary for Central Africa, Director of East African Affairs, and Director of Public Diplomacy for Africa.  He was Deputy Chief of Mission at the U.S. embassies in Panama and Malawi, and Counselor for Public Affairs at the U.S. Mission in Geneva.  Other overseas assignments include Australia, Costa Rica, South Africa and Cameroon.  He is the recipient of numerous awards, including Partnership Excellence Award from the Secretary of State’s Office of Global Partnerships.  Gilmour received a B.A. from Saginaw Valley State University in Michigan, and an M.A. from the University of Texas at Austin.  He speaks French and Spanish.

If confirmed, Ambassador Gilmour would succeed career diplomat Susan Stevenson who was appointed to the US Embassy in Malabo in 2019.