R. Clarke Cooper Sworn-In as Asst. Secretary for Political-Military Affairs (State/T/PM)

 

R. Clarke Cooper was confirmed as Assistant Secretary for Political Military Affairs on April 30, 2019. He was sworn-in to office by Under Secretary Andrea Thompson on May 3rd. Pol-Mil is a bureau under the Arms Control and International Security (T) family. He succeeds Puneet Talwar who was bureau head from 2014–2017.  Ambassador Tina Kaidanow served as Acting A/S for Pol-Mil until her retirement from the Foreign Service in and move to the Pentagon in 2018.

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Dept of Commerce’s Chelsea Decaminada Injured in Sri Lanka Bombing Has Died

 

A  U.S.  Government employee seriously injured in the terror attacks in Sri Lanka on Easter Sunday died on May 4 as a result of injuries she suffered during the attacks.  Chelsea Decaminada worked as an international program specialist with the U.S. Department of Commerce and was on assignment in Sri Lanka. She previously served as a Peace Corps volunteer in  in Tanzania. She graduated from Duke University in 2015. RIP Chelsea Decaminada.

EEOC Sanctions USAID For Failing to Conduct Thorough Investigation in Disability and Age Discrimination Case

 

Via The Digest of Equal Employment Opportunity Law | Volume 1Fiscal Year 2019

Commission Sanctioned Agency for Failing to Conduct Thorough Investigation & Found Evidence Would Have Established Discrimination. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the basis of disability and age when it terminated her contract employment. The Agency conceded, and the record supported a finding that Complainant established a prima facie case of discrimination, and the Commission found that the Agency articulated a legitimate, nondiscriminatory reason for the decision to terminate Complainant, that is its realignment of her office due to budgetary constraints. The Commission noted that while the EEO Investigator was thorough and pursued affidavits from both Complainant’s supervisor and the Assistant Administrator of her office, the Investigator only obtained a statement from the supervisor. The Assistant Administrator had moved to another agency and informed the Investigator, by email, that she would not cooperate with the investigation, did not supervise Complainant, and did not believe the questions posed by the Investigator were pertinent or applicable to her. The Commission stated that the Agency did not show good cause for its failure to engage in further efforts to obtain the Assistant Administrator’s affidavit. In addition, there was ample indication in the record that her testimony constituted highly relevant evidence, including a note by the EEO Counselor that the Assistant Administrator confirmed she made comments about Complainant’s health in the context of Complainant’s termination.

Therefore, the Commission concluded that the imposition of sanctions was warranted for the Agency’s failure to obtain testimony from the Assistant Administrator. While the Assistant Administrator moved to another federal agency, as a federal employee she retained the duty to respond to an EEO investigation, and the Agency provided no indication that it took any steps to obtain her cooperation. The Commission presumed that had the Assistant Administrator submitted an affidavit, she would have admitted she was directly involved in the decision to terminate Complainant’s contract, and that Complainant’s disability played a significant role in that decision. The Agency was ordered, among other things, to require Complainant’s contracting employer to reinstate her to her former position if possible or pay her one year of front pay if there was no position to which she could be reinstated; pay Complainant appropriate back pay; and investigate her claim for compensatory damages. Aileen C. v. Agency for Int’l Dev, EEOC Appeal No. 0120170399 (Sept. 18, 2018).

According to the EEOC, sanctions serve a dual purpose: 1) they aim to deter the underlying conduct of the non-complying party and prevent similar misconduct in the future, and 2) they are corrective and provide equitable remedies to the opposing party. Given these dual purposes, sanctions must be tailored to each situation by applying the least severe sanction necessary to respond to a party’s failure to show good cause for its actions and to equitably remedy the opposing party.

Several factors are reportedly considered in “tailoring” a sanction and determining if a particular sanction is warranted:
(1) the extent and nature of the non-compliance, and the justification presented by the non-complying party;
(2) the prejudicial effect of the non-compliance on the opposing party;
(3) the consequences resulting from the delay in justice; and
(4) the effect on the integrity of the EEO process.

The EEOC’s sanctions in this case  include reinstatement, back pay, front pay, compensatory damages, EEO site visit, and coverage of attorney’s fees and costs.

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Snapshot: Comparative Look at @StateDept Staffing 2008 – 2018

Via state.gov:

(click image above for larger view)

 

FSGB Annual Report 2018: Judicial Actions Involving Board Rulings

 

The following is excerpted from the Foreign Service Grievance Board Annual Report 2018. This is a good time to remind folks that while names/posts and identifying details are typically redacted from the Record of Proceedings (ROPs) routinely posted in the publicly available website fsgb.gov, once the case is filed in federal court, the records are usually publicly accessible and are unredacted (unless the case is sealed).

As described in last year’s report, USAID OIG had recommended that the grievant in FSGB Case No. 2012-057 be separated for cause. After two hearings, the Board approved the agency’s decision. The grievant appealed to the U.S. District Court for the District of Columbia. In a decision issued October 12, 2018, the court upheld the Board’s decision on cross-motions for summary judgment. The grievant has appealed to the U.S. Court of Appeals for the D.C. Circuit, challenging the District Court’s and Board’s construction of section 7(b) of the IG Act, which protects the confidentiality of employee informants.

In FSGB Case No. 2014-018, the grievant had requested a waiver of collection of a substantial overpayment of her deceased mother’s survivor’s annuity. The Department contended that she was not entitled to consideration of a waiver because the overpayment was made to her mother’s estate; under Department regulations, estates are not entitled to waivers. The Board concurred and grievant appealed. In a decision issued January 19, 2018, the D.C. district court found that the regulation denying waivers to estates was valid, but that the FSGB had erred in determining that the overpayments were made to the mother’s estate rather than to grievant as an individual. The court remanded the case for the Department and the Board to decide the request for the waiver on its merits. The waiver request is currently pending with the Department.

The grievant in FSGB Case No. 2015-016 filed a complaint in the U.S. District Court for the District of Columbia in 2017 against the Department and his former rater and reviewer requesting monetary damages related to the Board’s denial of his grievance. He had contested two EERs and a low ranking. The district court dismissed the complaint as untimely in a decision issued March 30, 2018. The U.S. Court of Appeals for the District of Columbia Circuit affirmed that decision on December 28, 2018.

The grievant in FSGB Case No. 2013-005 contended that he was deprived of certain benefits, such as promotion consideration, during a five-year assignment to an international organization. The Department found him ineligible for the benefits because his assignment to the organization was effected through a “separation and transfer” agreement, rather than a “detail.” The Board affirmed the Department’s decision and the United States District Court for the District of Colombia upheld that decision on appeal in a decision issued in 2016. The grievant had also appealed the Board’s decision in a second, related, case, FSGB Case No 2014-024, in which he had claimed certain benefits based upon his separation and transfer and subsequent reemployment with the Department. The Board dismissed his second grievance on the grounds of claims preclusion. In a decision issued March 14, 2018, the district court concluded that the Board’s decision was neither arbitrary and capricious nor contrary to law and dismissed his claims. The grievant appealed both decisions to the United States Court of Appeals for the District of Columbia Circuit, and that matter remains pending.

The grievant in FSGB Case No. 2017-014 was denied tenure and scheduled for separation from the Foreign Service. Consequently, the Department ordered her to leave her overseas post and assigned her to a position in Washington, D.C. The grievant filed a grievance with the Department challenging her transfer on several bases. The Department denied the grievance, and the grievant appealed to the Board. The Board denied all of grievant’s claims. It further found that, since no statute or regulation had been violated, it lacked jurisdiction to overturn an assignment decision. The grievant appealed the decision to the U.S. District Court for the District of the Virgin Islands, St. Croix Division. In a decision issued September 24, 2018, the court affirmed the Board’s decision.

Decisions were issued this year in two other cases filed by the same grievant, stemming from the same sets of circumstances but not involving appeals of Department or Board grievances. The grievant filed a case under the Equal Pay Act of 1963 in the U.S. Court of Federal Claims alleging gender-based discrimination in pay and benefits. She claimed that the Department discriminated against her by paying her less and providing her with fewer benefits than a similarly-situated male employee. The court initially dismissed the case, finding that it lacked jurisdiction because the same appeal was pending in another court at the time she filed. However, that decision was overturned by the circuit court and the case was remanded to the Court of Claims. The grievant also filed two identical complaints in the U.S. District Court for the District of the Virgin Islands, St. Croix Division, alleging discrimination and retaliation by the Department under the Age Discrimination in Employment Act. In both cases, the court dismissed all but one of the claims. The grievant also filed a complaint in the U.S. District Court for the District of Columbia alleging nearly identical discrimination and retaliation by the Department under Title VII of the Civil Rights Act of 1964. Therefore, the U.S. District Court for the District of Columbia has stayed its proceedings pending a decision in the U.S. District Court for the District of the Virgin Islands case.

An appeal of the Board’s 2017 decision by the State Department and USAID/OIG in another long-running case remains pending in the D.C. District Court following briefing of crossmotions for summary judgment in Civil Action No. 18-cv-41 (KBJ). As described in previous annual reports, the grievant in FSGB Case No. 2013-031 contested the decision to calculate his retirement annuity based on the application of a pay cap on his special differential pay that had not been applied when his salary was paid. In 2014, the Board initially upheld the agency’s decision. On grievant’s appeal, the district court in Civil Action No. 14-cv-1492 (KBJ) vacated the Board’s decision and remanded the case to the Board for further review. On remand, the Board in FSGB Case No. 2013-031R and No. 2016-030 issued a decision granting the grievant calculation and payment of his annuity that he sought. The Board denied the Department’s request for reconsideration of that decision. The Department and USAID/OIG jointly appealed the Board’s decision on remand to the district court in Civil Action No. 18-cv-41 (KBJ).

The 2015 Annual Report reported that the grievant filed an appeal of the Board’s decision in FSGB Case No. 2014-003 in Federal District Court, District of Colombia, claiming that the Department violated the Americans with Disabilities Act and Rehabilitation Act when it separated her. That appeal is still pending.

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Senators Van Hollen and Sullivan Introduce the Foreign Service Families Act (S.1293)

 

U.S. Senators Chris Van Hollen (D-Md.) and Dan Sullivan (R-Alaska), cofounders of the bipartisan Foreign Service Caucus, have introduced the Foreign Service Families Act (S.1293), a bill to expand employment opportunities for spouses of Foreign Service officers.

Senator Van Hollen’s press statement notes that “This legislation will help ensure that the State Department is able to attract and retain a world-class diplomatic corps by providing expanded career options and services to eligible family members. For many of these family members, the process of finding employment isn’t easy — frequent moves, language barriers, and limited options pose significant challenges. This legislation will address that issue so our Foreign Service can continue to serve the best interests of Americans at home and abroad.”

According to Senator Van Hollen’s press statement, The Foreign Service Families Act would provide authority to the State Department to offer the same services to Foreign Service family members overseas that the Defense Department is permitted to provide to military families. This includes:

  • Expanded hiring authority and preference for qualified spouses
  • Ensuring that Foreign Services spouses receive notice of State Department vacancies and that those who apply receive consideration
  • Making space available in State Department facilities for outside entities to provide career services
  • Developing partnerships with the private sector to enhance employment opportunities for Foreign Service spouses, and
  • Incorporating hiring preferences for qualified Foreign Service spouses into contracts between the Department of State and private-sector entities.

Additionally the legislation:

  • Directs the State Department to expand telecommuting opportunities for Foreign Service family members, so that family members can continue to work federal civilian and private sector jobs while overseas
  • Ensures that family members in the Expanded Professional Associates Program, which offers career opportunities for family members with advanced education and professional experience, are not held to unfair hiring standards, and
  • Makes sure that the State Department has fully implemented the Foreign Service Family Reserve Corps, a program intended to speed hiring and improve clearance portability for Foreign Service family members.

The bill has been “read twice and referred to the Committee on Foreign Relations.” We’ve searched for the text but have not yet been able to locate it.  According to congress.gov, as of 05/10/2019 text has not been received for S.1293: “Bills are generally sent to the Library of Congress from GPO, the Government Publishing Office, a day or two after they are introduced on the floor of the House or Senate. Delays can occur when there are a large number of bills to prepare or when a very large bill has to be printed.”

Govtrack notes that the United States Congress considers about 5,000 bills and resolutions each year, but of those only about 7% will become law. All bills not enacted by the end of the session on Jan 3, 2021 die, and Congress will start over.

 

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@StateDept Gets Closer to Getting an Under Secretary for Management, Vacant Since January 2017

 

@StateDept Recalls Amb. Marie Yovanovitch From Ukraine After Persistent Campaign For Removal

 

The U.S. Ambassador to Ukraine Marie Yovanovich has reportedly been recalled and now expected to depart post on or about May 20. This development followed a persistent campaign for her removal among conservative media outlets in the United States as well as allegations by Ukrainian Prosecutor-General Lutsenko concerning a do not prosecute list.

The State Department reportedly told RFE/RL  on May 6,  that Ambassador Yovanovitch “is concluding her 3-year diplomatic assignment in Kyiv in 2019 as planned.” And that “her confirmed departure date in May aligns with the presidential transition in Ukraine,” which elected a new president in April.

While that may well be true – she was confirmed in 2016, a 3-year tour is a typical assignment; the new Ukraine president takes office on June 3rd — it is hard to ignore the louder voices calling for the ambassador’s removal from post for political reasons. It doesn’t help that there is no Senate confirmed EUR Assistant Secretary or that the Secretary of State did not see it fit to come forward to defend his top representative in a priority country in Europe.

Ambassador Yovanovich is a career diplomat and a Senate-confirmed Ambassador representing the United States in Ukraine. She previously served as Ambassador to the Republic of Armenia (2008-2011) under President Obama and to the Kyrgyz Republic (2005-2008) under President George W. Bush. We’ve seen people calling career diplomats “holdovers”. If they were political appointees, they would be called “holdovers” or “burrowers,” but they are career public servants; that term does not apply to them. If some folks insists on calling them “holdovers,” then the least that these folks can do is to accurately enumerate all the public servants’ prior presidential appointments, some going back 30 years at the start of their careers in the diplomatic service.

Perhaps it is helpful to point out that as career appointees, ambassadors like Ambassador Yovanovich do not go freelancing nor do they go rogue; they do not make their own policy concerning their host country.  They typically get their marching orders from their home bureau, in this case, the Bureau of European and Eurasian Affairs (EUR) at the State Department, under the oversight of the Under Secretary for Political Affairs, who report to the Secretary of State.  And they follow those orders.  Even if they disagree with those orders or the administration’s policies. Career diplomats who do not follow their instructions do not have lengthy careers in the diplomatic service.

After all that, if the United States is taking the word of a foreign official over our own ambassador, it’s open season for our career diplomats. Will the “you want a U.S. ambassador kicked out from a specific country go on teevee ” removal campaign going to become a thing now? Will the Secretary of Swagger steps up?

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FSGB finds no merit in argument that @StateDept has “unfettered discretion” to grant or deny SNEA benefit

Via FSGB Case No. 2018-016:

“The Department next argues that its granting a SNEA under section 5924 is “discretionary,” and in any event must be paid in accordance with the DSSRs. As we have previously stated, the prior authorization the grievants sought, for reimbursement after their arrival at post, is fully consistent with the DSSRs. Further, we find no merit to the argument that the Department has unfettered discretion under section 5924 to grant or deny a SNEA benefit to employees in any way it may see fit. Rather, law and regulation must limit its discretion.”

Via giphy.com