With “Stretch” and “Cede” Policies Up Front

On March 12, in a civil action lawsuit Farris v. Clinton, the United States District Judge Ricardo M. Urbina granted the defendant’s (Clinton/State Department) renewed motion for summary judgment with respect to Virginia Loo Farris’ retaliation claims but denies it with respect to the her discrimination claims. So there will be no trial for the retaliation claims but I understand that if no motion is filed, then it looks like this discrimination case proceeds to trial.

The original defendant to this action was Secretary Rice when this action was instituted. The court has substituted the current Secretary of State, Hillary Clinton as the defendant in this action when she became SoS.

Virginia Loo Farris is an Asian-American woman formerly employed by the U.S. Foreign Service under the U.S. Department of State (“the Department”). She was a thirty-four year veteran of the Foreign Service.Ms. Farris alleges that the State Department unlawfully discriminated against her based on her race and gender and then retaliated against her for complaining about the discrimination. The Department previously filed a motion for summary judgment, which the court denied in June 2007 after determining that the plaintiff was entitled to discovery to develop the factual record. Following the close of discovery, the Department filed the instant motion for summary judgment. Because Ms. Farris has produced enough evidence to withstand summary judgment on her discrimination claims but not on her retaliation claims, the court grants in part and denies in part the Department’s renewed motion for summary judgment.

The plaintiff claims the defendant discriminated against her on the basis of her race and gender by denying her bids for two positions: one as a USNATO Political Counselor, a principal adviser to Ambassador Vershbow, the U.S. Permanent Representative to the U.S. Mission toNATO (“the USNATO position”), and another as the Political Advisor to the NATO military commander in the Hague (“the Hague POLAD position”). Compl. ¶ 11; Def.’s Mot. at 5.

In denying the State Department’s renewed motion for summary judgment with respect to Ms. Farris’s race and gender discrimination claims, the Court states that its central task is to determine “whether the plaintiff has produced evidence from which a reasonable jury could determine that the defendant’s asserted non-discriminatory reason for not hiring her was pretextual and that the defendant intentionally discriminated against the plaintiff based on her race and/or gender.”

Ms. Farris offers four rationales in support of her contention that the Department’s asserted nondiscriminatory reason was a pretext for unlawful discrimination: 1) statistical evidence (which did not fly), 2) the candidates’ respective qualifications for the USNATO position (here the court decides that no reasonable jury could determine that the plaintiff was significantly more qualified than the other candidate), 3) preselection and 4) failure to follow established procedures.

I am not surprised to hear that there is a dearth of Asian American women at the highest level of the State Department but it is still kind of shocking to see it in stark numbers:

“The statistics that the plaintiff offers, viewed in the light most favorable to her, show that as of 2000, while women were heavily represented among the civil service employee base of the Department, men comprised 72% of the senior ranks of the Foreign Service. The plaintiff also proffers statistics concerning the representation of Asian-American women in particular among the senior ranks of the Foreign Service: at the plaintiff’s seniority level, only 4 officers out of 390 were Asian-American women.”

The Court did note that what Ms. Farris’ statistics fail to address, is the only comparison relevant to this action, namely, the proportion of qualified Asian-American candidates to those chosen for senior-level Foreign Service positions.

Now, items #3 and #4 are where this gets rather interesting — but more so when this gets to trial. Why? These may cast some bright sunshine on a few things that are particularly vexing in the Foreign Service when folks are “bidding” for their forward assignment every 2-3 years – oh, just things like preselection, “fair share,” “stretch” and “cede” policies.

I should note here that according to AFSA some 12 percent of overseas Foreign Service positions (excluding Iraq and Afghanistan) are now vacant, as are 33 percent of domestic Foreign Service positions. Furthermore, 19 percent of the filled slots are held by employees “stretched” into a position designated for a more experienced person.

On preselection, this is what the court record says – “The plaintiff next claims that the defendant preselected Goodman for the USNATO position because he was a member of a “good old boy” network, and that consistent with Goodman’s preselection, Thomas Tiernan, a human resources representative, pressured the plaintiff to withdraw her bid for the position.”

The Court states that it is “undisputed that as early as April 2000, the Department’s EUR Bureau strongly endorsed Goodman for the USNATO position.[…] On May 12, 2000, Tiernan e-mailed the plaintiff urging her to reconsider her candidacy for the position, Pl.’s Opp’n, Ex. 9; when she declined his advice, the defendant selected Goodman for the post in June 2000, Tiernan Dep. at 105.”

On the charges of failure to follow established procedures– State maintains that “cedes are granted even when there are senior officers prepared to take the job. Simply put, plaintiff’s seniority does not trump the prerequisite experience for the position.”Apparently, it is the State Department’s view that “because the plaintiff was willing but not qualified to take the USNATO position, the defendant properly granted a cede to Goodman.”

Now, this is where I get confused. This seems to be saying that a “cede” occurs independent of any action from a specific candidate bidding on a specific position. But to cede means “to relinquish possession or control over something,” except in this case, the employer is the one granting the cede, not the impacted employee. But why was she asked to reconsider her candidacy if it were not up to her to cede?

On the fair share policy: Ms. Farris also claims the defendant violated the “fair share policy” as it is articulated in Department regulations. Pl.’s Opp’n at 28-30. “According to the plaintiff, the policy aims to prevent officers from “limit[ing] themselves to one geographic area and thus overly identify[ing] with such area; the rules also prevent an informal ‘revolving door’ that would deprive others of the opportunity to serve in more developed, favored posts.” Id. at 28.”

The Department’s response:“the policy is intended to ensure that it can staff its “hardship posts,” not to enable as many officers as possible to serve in favored posts, including those in Europe.”

The Court then says that to determine whether there is a genuine dispute as to whether the defendant violated the stretch policy by hiring Goodman, the court looks to the evidence proffered by both parties, viewing it in the light most favorable to the plaintiff. Anderson, 477 U.S. at 255.:

“Viewing the evidence in this light, the court concludes that there is a factual dispute with respect to whether the defendant’s decision to hire Goodman notwithstanding the plaintiff’s bid was consistent with standard practice within the Department. See Lathram, 336 F.3d at 1093-94. The court is in no position to resolve this dispute by crediting either party’s version of the facts, and contrary to the defendant’s assertions, it is far from clear from the evidence submitted that the decision to hire Goodman did not deviate from standard practice. Id. Thus, a reasonable jury could determine that the defendant failed to follow established procedures, which could in turn give rise to a determination that the defendant’s asserted nondiscriminatory justification for the hiring decision was pretextual. Brady, 520 F.3d at 495 n.3.

On The Hague POLAD position (see discussion starting on page 18). The Department does not contest the plaintiff’s account of the factual circumstances surrounding her requests to be considered for The Hague POLAD position. Id. At 13-15. Instead the Department exlains:

“that although it had already submitted its short list in November 1999, the position still appeared by mistake on the “open assignments” list. Id. at 13-14. Because Whitlock “did not have any involvement with [the Hague POLAD] placement,” he was unaware that bidding was closed on the position when he mistakenly told the plaintiff that the position was still open. Id. at 14. In December 1999, the position again erroneously appeared as an open assignment – this time on the “hard to fill” list – because the individual responsible for posting the “hard to fill” list was misinformed. Id. Finally, the defendant notes that the plaintiff would not have been offered the position even if she had been allowed to bid on it because she was less qualified than the successful candidate. Def.’s Mot. at 10, 29-30.”

Read the whole thing here.

I supposed that a lot of mid-level and senior officers would like to see how this case turns out. As well as junior/mid-level officers who may be interested in “stretch” and “double stretch” assignments. The entire assignment process could be on trial with this case. Who knows what will happen next? I happen to think that transparency in the bidding and assignment process is swell — if that elephant actually walks as well as it talks.

Is it time for State to rethink this whole process? Patricia H. Kushlis of Whirled View recently penned a piece entitled Clean Up Time at Foggy Bottom? It is a good read but you won’t see it published in the in-house magazines.

I can’t help thinking that the courts do have a way of inflicting change on organizations whether they are ready for it or not. In 1968, Foreign Service Officer Allison Palmer filed a sex discrimination case that she won three years later. Her victory, according to U.S. Diplomacy resulted in an order from management barring all discrimination in assignments.

As an aside, I ‘d like to note that the State Department did not overturn its ban on the marriage of female diplomats until 1972 1971. And until the early 70’s Foreign Service Officers were still evaluated partly on the performance and personal qualities of their wives. To think that this was considered normal in those days …

In 1977, another sex discrimination, this time a class action suit was filed by Carolee Brady Hartman against the U.S. Information Agency and the Voice of America. It was fought for 23 years and in 2000 finally resulted in a settlement that paid $532,000 to each of the nearly 1,100 women involved in the case.

I don’t know if this is the case that will break the transparent elephant’s back, let’s wait and see … shall we?

Related Items:

• Farris v. Clinton Civil Action No.: 05-1975 (RMU)
  March 12, 2009
• Farris v. Rice Civil Action No.: 05-1975 (RMU)
  June 12, 2007