State/OIG Finds @StateDept Revoked Security Clearance in Retaliation For Whistleblowing

 

Via State/OIG

OIG did not substantiate any allegations of whistleblower retaliation related to Department contractors or grantees. However, OIG did substantiate an allegation of a security clearance revocation in retaliation for whistleblowing activity under PPD-19. As required by the Foreign Affairs Manual, OIG reported its findings to the Under Secretary for Management. The report recommended that the whistleblower’s security clearance be reinstated.

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Presidential Policy Directive-19 (PPD-19) PDF

The brief note from State/OIG’s semi-annual report includes little details about a security clearance revocation, not suspension. According to 12 FAM 233.4, suspension is an independent administrative procedure that does not represent a final determination and does not trigger the procedures outlined in 12 FAM 234, which includes revocation.  With revocation, the Department may determine that immediate suspension without pay from employment under 5 U.S.C. 7532 is deemed advisable.

After State/OIG’s referral to “M”, the Under Secretary for Management will reportedly transmit the IG materials to the Security Appeals Panel, “if one is convened in the matter, and to other Department officials as appropriate” according to the Foreign Affairs Manual.

Note that the State Department does not have a Senate-confirmed “M” as of this writing. We want to know if the security clearance is not reinstated per OIG recommendation.

State/OIG’s semi-annual report also does not include information on consequences for the individual/individuals who perpetrated the revocation of this whistleblower’s security clearance in retaliation for whistleblowing activity.

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Burn Bag: @StateDept’s Reasonable Accommodation For a Pregnant Diplomatic Courier?

Via Burn Bag:

Pregnant diplomatic courier told to use a portable travel toilet, undress in the presence of LES driver and urinate in the back of the truck. This is the best accommodation her supervisor and DRAD* could come up with. Another example of **pregnancy discrimination that is running rampant in the State Department.

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Physical requirements  via careers.state.gov:

A Diplomatic Courier must have the physical endurance to withstand the physical stresses from working long hours, lack of sleep, extremes of heat or cold, and other discomforts and the physical strength to lift and move heavy and/or oversized items such as diplomatic pouches and crates that may weigh as much as 70 pounds or carry heavy equipment. A Diplomatic Courier is required to perform work that requires regular and recurring periods of prolonged sitting, standing, bending, and stretching and is often required to physically move and transport heavy items; that could involve climbing ladders and working in and around aircraft, trucks, trains, aboard ships, etc. Related activities include crawling, maneuvering, and working in cramped spaces.

3 FAM 3350 | LEAVE AND REASSIGNMENT OF DUTIES FOR MATERNITY AND PATERNITY REASONS

* HR/OAA/DRAD is the Disability and Reasonable Accommodations Division in the Office of Accessibility and Accommodations, Bureau of Human Resources at the State Department

** The Pregnancy Discrimination Act of 1978 is an amendment to Title VII of the Civil Rights Act of 1964.  Discrimination on the basis of pregnancy, childbirth, or related medical conditions constitutes unlawful sex discrimination under Title VII. See more: https://fam.state.gov/fam/03fah03/03fah030110.html#H112

 

Diplomatic Security Agent Charged With Five Counts of Sexual Assault Over Four Years in Wisconsin

Posted: 3:11 am  ET

 

Diplomatic Security agent David S. Scharlat was charged on March 31 with five counts of felony sexual assault, ranging from first to third degree, in Waukesha County Circuit Court in Wisconsin. According to the Journal Sentinel, Scharlat’s attorney, Paul Bucher, said the allegations “were old, including some that had been dismissed at an earlier civil court hearing, and his client believes the alleged actions were consensual.”

Scharlat is an agent with the U.S. Department of State Diplomatic Security Services. On Friday, a spokesperson for the State Department could not comment on his employment status or the investigation.

In a 2012 federal court filing, Scharlat said he was assigned to the Chicago Field Office and had been with the agency for about 11 years.

Wisconsin Circuit Court records indicate case 2017CV001949 was filed against Scharlat on November 6, 2017:  Waukesha County Case Number Party Sealed by Judge Bugenhagen vs. David Scot Scharlat “The court did not issue an injunction against the respondent in this case. The reasons were stated on the record and may be explained in the final order. No adverse inference should be drawn against the respondent when an injunction is denied or a case dismissed. The fact that a petition was originally filed means nothing.”

Case 2017CV001998 was filed on November 13, 2017 for “Domestic Abuse-Temp Rest Order.” Court record for the November 20, 2017 injunction hearing says:

Petitioner in court. Petitioner in court with Attorney Rebecca M Coffee. Respondent David S Scharlat in court. Attorney Paul E Bucher in court for Respondent David S Scharlat. Atty. Coffee requests to proceed on both case 17CV1998 and 17CV1949. Atty. Bucher objects to proceeding on both filings. Court stated they will proceed on both case but the definition of domestic abuse and harassment to defer. Atty. Bucher moves to dismiss both cases. Court denies the Motion to Dismiss. H.W., sworn in and testified. Atty. Bucher requests all witnesses be sequestered. Court orders all witnesses be seated in the hallway. Court continues case for criminal case to proceed. Injunction hearing scheduled for April 30, 2018 at 10:00 am.

Case 2018CF000482 was filed on March 30, 2018 charging Scharlat with Count 1 3rd Degree Sexual Assault; Count 2 1st Degree Sexual Assault/Great Bodily Harm; Count 3-5 2nd Degree Sexual Assault/Use of Force. Initial appearance is scheduled for April 11, 2018 at 1:15 pm. The Court record notes that “This case has not been concluded. Unless a judgment of conviction is entered, the defendant is presumed innocent of all charges.”

The criminal complaint includes three victims, identified as HLW, MRH and CKT with charges filed “upon a review of the investigative reports of Detective Paula Hoffa, Village of Hartland Police Department, Detective Sergeant Gwen Bruckner of the Town of Brookfield Police Department, and Lieutenant Detective Kristen Wraalstad and Officer of the Town of Oconomowoc Police Department.”

According to the complaint, “Officers made contact with Scharlat about the incident on October 20, 2017 at HLW’s residence and he advised officers that although he had been with HLW at her residence on that evening, he had not had intercourse with her at her residence.” The complaint also says that “The fitted sheet from HLW’s bed from the night of October 20, 2017 was submitted to the State Crime Lab for testing. The results from the DNA testing of the sheet showed that Scharlat’s semen was present, consistent with HLW’s statement.”

Under Count 2,  complaint says that “When questioned about HLW’s level of intoxication and her incapacity/inability to give consent, he stated when they got home from the bar, HLW was not incapacitated but did have trouble walking.”

Under Count 3 and 4, complaint says “On Monday, February 26, 2018 officers had contact with MRH 08/01/1967 who, in a statement deemed to be reliable inasmuch as she is a common, ordinary citizen witness indicates that she had been sexually assaulted by David Scharlat on two occasions.”

Under Count 5, complaint says “Officers had contact with CKT, DOB 03/12/1970 to whom they explained they were investigating an incident that they believed may have some connection to an incident involving her. In a statement deemed to truthful and reliable inasmuch as she is a common, ordinary citizen witness in this case, CKT advised that her rapist and stalker was Scharlat.”

We’ve requested comments from DS/Public Affairs about this case but so far have heard only crickets.

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@StateDept’s Office of Security Technology to Purchase Wearable Radiation Dosimeters

Posted: 3:29 am ET

 

On January 10, the State Department issued solicitation #19AQMM18Q0014 for radiation dosimeters. The small business set-aside firm-fixed price contract is for a base year minimum order quantity/quarter of 450 units, and a maximum order quantity/quarter of 475 units, with four option years of the same minimum/maximum requirements. So 1900 units for the base year or 9500 units total in five years.  The order is solicited on behalf of Diplomatic Security’s Office of Security Technology (DS/C/ST):

The Government requies a wearable device that records exposure to ionizing radiation that does not contain electronic equipment. It is anticipated that the device will be returned to the vendor for reading and reporting back to the Government the amount of radiation exposure recorded on the device (see Radiation Survey Results Report for more information on the reporting deliverable).

The anticipated order quantity is up to 475 devices. The anticipated ordering frequency is quarterly. No less than 450 devices will be ordered per quarter.

Delivery of the device is required 30 days from award of the BPA call to the X-Ray Program Manager (to be identified upon BPA award).

Radiation Survey Results Report: Radiation survey results reports are to be delivered to the X-Ray Program Manager (to be identified upon BPA award) within 30 days of receipt of returned device for those devices with a reading of over 50 milliRem (mR). Electronic copies of the report will be accepted, and is preferred, and electronic archiving options are also acceptable and preferred.

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The Department of Homeland Security (DHS) did a survey on radiation dosimeters back in 2015 and established the System Assessment and Validation for Emergency Responders (SAVER) Program to assist emergency responders making procurement decisions. Here is what it says about dosimeters:

Dosimeters are radiation safety devices worn to quantify an individual’s accumulated radiation dose incurred from external sources to evaluate the potential for harmful health effects of radiation. Dosimeters differ from other radiation detection devices that are designed for the purpose of preventing a radiological release by alerting a responder to the presence of radiation.

It appears from the State Department solicitation description that they are looking for processed dosimeters (and not self-reading dosimeters or electronic personal dosimeters, the latter generally the most expensive, largest in size, and most have visual, auditory, or vibratory alarms). Below is what DHS says about processed dosimeters:

Processed dosimeters are based on thermoluminescence (TL), optically stimulated luminescence (OSL), or direct-ion storage (DIS) technologies. Thermoluminescence dosimeters (TLDs) and OSL materials contain defects in their crystal structure that trap electrons released by exposure to radiation. In TLDs, the trapped electrons are subsequently freed by stimulation with heat, while OSL uses stimulation with light. In both types, after stimulation, the resulting light emission provides a measure of the radiation dose received. Specialized equipment is used for this readout, either by the user with field-portable or lab-based equipment, or by a dosimetry processing laboratory. A commercial dosimetry service can be contracted to supply dosimeters on a regular basis, read out returned dosimeters, and provide dose tracking and record keeping. TLDs and OSL dosimeters are offered in either a clip-on brooch format or identification card style. DIS devices use an analog memory cell inside a small, gas-filled, ionization chamber. Incident radiation causes ionizations in the chamber wall and in the gas, and the charge is stored for subsequent readout. The DIS dosimeter is read at the user’s site through connection to a web-based system via a universal serial bus (USB) port or Bluetooth connection to a computer or smart phone. The DIS dosimeter is designed to clip to a breast pocket. Processed dosimeters are also considered passive devices in that they do not have an on/off switch, though DIS devices do contain a small inaccessible battery to maintain their charge or for communications. Processed dosimeters are widely used in health and safety programs for radiation workers such as nuclear

Also this:

The purpose of a dosimeter is for worker protection. The potential hazardous effects of radiation depend on the radiation level. For very high doses (hundreds of R), the effects are immediate (“acute”) such as blood and skin damage or infertility, and the severity of the effect increases with dose.4 For lower radiation levels, the effects are not immediately life threatening; the long term accumulated dose is of interest because the probability (but not the severity) of effects such as cancer increase with dose.

Radiation dosimeters are routinely used in occupational radiation environments in the nuclear industry and at medical facilities. In contrast, except for some hazardous material response teams, most emergency responders do not routinely use radiation dosimeters. Responders may need dosimeters in the event of a radiological release such as a terrorist attack involving a radiological dispersal devise or an improvised nuclear device. Since emergency response scenarios span a wide range of potential radiation levels that could be initially unknown, many factors must be considered in the selection of a radiation dosimeter.

The State Department solicitation notes that the Radiation Survey Results Report are to be delivered to the X-Ray Program Manager within 30 days of receipt of returned device for those devices with a reading of over 50 milliRem (mR). More from DHS’s market survey report:

One of the most important factors influencing selection of radiation dosimeters is the magnitude of radiation levels that an instrument can measure – for example, a very sensitive device with a low minimum range is useful for alerting users to the presence of radiation but may go off-scale and not function in a high radiation field. The operational range of a dosimeter will determine how it can be used during the response, and several guidance documents provide reference values that help define what ranges are applicable. For example, the National Council on Radiation Protection and Measurements (NCRP) defined radiation control zone perimeters for emergency response to nuclear and radiological terrorism, where the “cold zone” is the area where the exposure rate is less than or equal to 10 mR/h, the “hot zone” is an area with exposure rate greater than 10 mR/h, and the “dangerous-radiation zone” is at 10 R/h and higher. Accumulated dose guidelines have also been developed by the Environmental Protection Agency (EPA) and the NCRP to guide tactical emergency response decisions, such as 10 rem for property protection operations and 25 rem and higher to conduct lifesaving missions, 5 or 50 rad to decide whether to withdraw from a radiation area.
[…]
The ability to alarm or display instant results may be an important feature to consider in relation to the magnitude of radiation levels. For example, in a dangerous radiation field, a high range electronic device that can measure exposure rates with a real-time display and alarms could help a responder avoid potentially life threatening doses. In a lower radiation field, self-reading and field-readable processed dosimeters could be used to provide near real-time information. In both types of fields and during intermediate and late phase recovery operations, processed personal dosimeters could be used for later verification of field instrument readings and to track accumulated dose for long term health.

Source doc: DHS Radiation Dosimeters for Response and Recovery Market Survey Report | June 2016 (PDF)

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EEOC Case: Investigators Find False Accusations, Agency Refuses to Help Clear His Name

Posted: 3:01 am ET

 

This is an EEOC case about a complainant who was the Consul General at the U.S. Consulate General in Naples, Italy.  The name used here is a pseudonym as in eeoc practice but the details are similar to the ugly, nasty case a few years back that made the news.  Most notable lesson here about the Privacy Act, and the limits of  Diplomatic Security’s willingness to clear somebody’s name when needed.

Via eeoc.gov

Believing that the Agency subjected him to unlawful discrimination, Complainant filed an equal employment opportunity (EEO) claim with the Agency. On November 26, 2013, Complainant and the Agency entered into a settlement agreement to resolve the matter. This decision on the breached settlement was issued in November 2016. Excerpt below:

Background:

The record reflects that a subordinate of Complainant (Subordinate 1), who resigned in May 2012, and to a lesser extent her spouse made highly charged allegations against Complainant, i.e., entertaining prostitutes, escorts, and married women in his residence during work hours, engaging in fraud or mismanagement of funds, permitting his driver to be fired so his job could go to someone else and as a form of retaliation, throwing metal umbrella pots from his sixth floor residence down to the parking lot below and then jumping on and crushing them, and this was captured on CCTV and in front of the security guards, and so forth. By April 2013, the U.S. Embassy Rome, in consultation with the Bureau of Diplomatic Security, Special Investigation Division initiated an investigation. The investigation was conducted by two Special Agents with the Bureau of Diplomatic Security, and involved 20 individual interviews with Consulate Staff. It concluded that the accusation that Complainant threw metal pots was “false,” and the three other allegations specified above were completely false. The investigation found that the remaining allegations were variously false, completely false, unsubstantiated, not supported by evidence, and one, in essence, grossly exaggerated.

On June 16, 2013, the New York Post and Fox News published highly negative stories about Complainant, writing for example that Subordinate 1, a whistleblower, said Complainant had trysts with hookers, and this was the latest black eye for the scandal-ridden State Department. On June 17, 2013, Complainant was copied on an Agency email chain regarding the New York Post reporting Subordinate 1’s allegation that Complainant insisted a staffer have an abortion and the staffer said she got her “tubes tied” at his instruction. It was indicated in the email chain that the staffer said the article was “all lies” and felt strongly that she should respond to the article by saying something. The above DCM advised that it would be much better for the staffer not to say anything for now – that this could all blow over quickly.

In his EEO claim, according to Complainant, he alleged discrimination when he was denied assignments in line with his experience, ability, and professional background, the DCM knew that allegations against him by Subordinate 1, her spouse and two others were false and failed to take appropriate action, and management held him accountable for the false accusations and denied him support.

By letters to the Agency dated February 1, 2016 and May 10, 2016, Complainant alleged that the Agency misled him into entering into the settlement agreement and breached it. Specifically, he alleged that when he signed the settlement agreement, the Agency knew Subordinate 1’s EEO complaint had been investigated with a finding of no wrongdoing on his part, that she would likely continue to litigate in federal court, and he could have used the EEO decision to exonerate himself. Complainant wrote that after the settlement agreement, Subordinate 1 continued to attack him in the press, with articles appearing in prominent news outlets such as Newsweek and the New York Post. He pointed to a proposed June 2013 Agency press release recounting that the Diplomatic Security Service investigated the allegations and found no violations of U.S. or Italian law, and contended that had the press release been issued this would have rebutted the articles or they would not have been published. He argues that the Agency allowed employees and family members to utilize the EEO process to raise false allegations against him despite the Agency’s conclusion that they were baseless, and in failing to clear his name breached the settlement agreement and made it ineffective and unenforceable.

The Agency found that it complied with the settlement agreement. Regarding term 9.d, the Agency found that Complainant’s submittal of proposed changes to his 2012 EER was a condition precedent to the former DCM reviewing them and considering making changes, and Complainant admitted he did not submit proposed changes because he was too disheartened and depressed. On appeal, Complainant, who is represented by counsel, confirms this, but adds another reason was that he lacked the necessary facts, particularly the EEO decision on Subordinate 1’s complaint.

Regarding term 9.g, the Agency recounted that Complainant stated it was breached because (1) the Agency simply wrote a one page memorandum simply listing the allegations against him and stating they were found to be unsubstantiated rather than discussing things in context to show how his accusers seized on scandal to defame him and hinder his career, (2) the memorandum was only based on facts until October 2013, failing to fulfill its purpose of summarizing the Diplomatic Security investigation,3 and (3) the Agency, in response to his inquiries, could not give him a clear answer on whether he could share the memorandum with family, colleagues, friends, and his Italian attorney, preventing him from doing so. On appeal, Complainant confirms that he raised reasons (1) and (3). He argues that not being able to share the memorandum makes it useless and his reason for entering into settlement negotiations was to restore his reputation.

In determining that it complied with term 9.g, the Agency found that it met its obligation to provide a summary of the investigation, and that there is no evidence the parties agreed to any specific format in or upon the use of the memorandum.

In determining that it did not negotiate the settlement agreement in bad faith, the Agency found that Complainant cited no authority for the proposition that it was obligated to divulge the outcome of Subordinate 1’s EEO case, and there was no evidence it negotiated in bad faith.

On appeal, Complainant adds that he would not have bargained for a memorandum summarizing the results of the Bureau of Diplomatic Security’s investigation had he known he could not use it, this is common sense, and the Agency’s failure to authorize its use is a breach of the settlement agreement. Complainant argues that the Agency breached the settlement agreement by failing to live up to the spirit of the document. He argues that the Agency’s failure, upon his request, to allow the issuance of the proposed press release in the Agency’s name violates the settlement agreement.

In opposition to the appeal, the Agency argues that disclosing Subordinate 1’s employment discrimination investigation would violate privacy right protected information, and it did not negotiate the settlement agreement in bad faith.

Decision

In June 2013, after the New York Post reported highly charged accusations by Subordinate 1 about the way Complainant treated a staffer, an Agency email string on which Complainant was copied showed the staffer wanted to say something rebutting what was reported, but the former DCM opined it would be much better if the staffer did not say anything now – this could blow over quickly. Further, Complainant strongly suggests that he was aware the Bureau of Diplomatic Security investigation was favorable and he certainly knew the Agency had done nothing to publically clear his name. While Complainant wanted the Agency to publically clear his name, he agreed to a settlement agreement that did not have a term explicitly doing this. Instead, the Agency agreed to issue to a summary of the Bureau of Diplomatic Security to Complainant – not the public.

Complainant’s contention that the Agency bargained for the settlement agreement in bad faith is not persuasive. First, as argued by the Agency, it had reason to believe the administrative decision on Subordinate 1’s complaint was protected by the Privacy Act, since administrative EEO records are generally within the scope of the Act. Further, Complainant has not shown he did not already have sufficient information to make a fair bargain when negotiating the settlement agreement.

The FAD is AFFIRMED.

Read the full case here via eeoc.gov.

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Snapshot: Bureau of Diplomatic Security By The Numbers (2017)

Posted: 3:10 am ET

 

Via state.gov/DS

via state/gov/ds:

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Michael T. Evanoff Assumes Charge as Asst Secretary of State for Diplomatic Security

Posted: 12:37 am ET
Updated: 11/9; 12:45 pm PT
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Former DSS Agent Michael T. Evanoff was confirmed on November 2 as Assistant Secretary of State for Diplomatic Security, and on November 7, he was back to lead his old bureau. There are some new names at the top ranks of Diplomatic Security, but the principal deputy slot appears to be vacant at this time. The names are from Diplomatic Security’s leadership page and may not be 100% accurate at this time (we heard one retirement that occurred last week, but the name is still on their page).

Principal Deputy Assistant Secretary for Diplomatic Security and Director of the Diplomatic Security Service — VACANT
The Principal Deputy Assistant Secretary for Diplomatic Security/Director of Diplomatic Security Service (DSS) is responsible for the Bureau of Diplomatic Security’s international and domestic operations and training programs.

Deputy Assistant Secretary and Assistant Director for for Countermeasures — Wayne B. Ashbery
The Deputy Assistant Secretary/Assistant Director for Countermeasures formulates security policy and plans for countermeasures in the areas of physical security, technical security, and diplomatic courier operations for the Department of State’s overseas and domestic operations and facilities. [biography]

Cyber and Technology Security — Lonnie J. Price
The CTS Directorate manges advanced cybersecurity programs and risk-managed technology innovation for the department. CTS provides advanced cyber threat analysis, incident detection and response, cyber investigative support, and emerging technology solutions for our department colleagues in headquarters and our missions around the world.

Acting Deputy Assistant Secretary and Assistant Director for Domestic Operations — James Murphy
The Deputy Assistant Secretary/Assistant Director for Domestic Operations is responsible for all Bureau of Diplomatic Security investigative programs as well as domestic protection programs and operations.

Deputy Assistant Secretary and Assistant Director for High-Threat Programs — Tim Riley
The Deputy Assistant Secretary/Assistant Director for High-Threat Programs is responsible for evaluating, managing, and mitigating the security threats, as well as the direction of resource requirements as high-threat U.S. diplomatic missions. [biography]

Assistant Director for International Programs — Christian J. Schurman
The Deputy Assistant Secretary/Assistant Director for International Programs is responsible for managing and directing all Bureau of Diplomatic Security programs and policies that protect the Department of State’s international missions and personnel from the threats of terrorism, espionage (human and technical), and crime. [biography]

Acting Deputy Assistant Secretary and Acting Assistant Director for Threat Investigations and Analysis — Bartle B. Gorman
The Deputy Assistant Secretary/Assistant Director for Threat Investigations and Analysis is in charge of all threat management programs within Diplomatic Security that analyze, assess, investigate, and disseminate information on threats directed against our facilities and personnel overseas and domestically.

Deputy Assistant Secretary and Assistant Director for Training — Scott Moretti
The Deputy Assistant Secretary/Assistant Director for Training oversees the Bureau of Diplomatic Security’s Offices of Antiterrorism Assistance, Training and Performance Support, and Mobile Security Deployments. [biography]

Executive Director for Diplomatic Security — Stephen B. Dietz, III
The Executive Director is the principal advisor to the Director of Diplomatic Security Service, and the Assistant Secretary for Diplomatic Security on the Bureau’s administrative, management, planning and resource issues, activities and programs. The Executive Director oversees and ensures the development and implementation of administrative and management policies, plans and procedures to ensure that the Bureau’s resources are allocated, administered, and accounted for in accordance with U.S. law and government regulations. [biography]

Senior Coordinator for Security Infrastructure — Donald R. Reid
The Senior Coordinator for Security Infrastructure oversees the Department of State’s Information and Personnel Security/Suitability programs and key aspects of its network cyber security program. Responsibilities include the management of classified information programs, oversight of the State Department’s Special Security Office, the operation of the Industrial Security program, and the investigation/resolution of security violations. [biography]

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EEOC Affirms No Reprisal in Quick Termination of a Foreign Affairs Officer

Posted: 12:33 am ET
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Via eeoc.gov

At the time of events giving rise to this complaint, Complainant worked as a Foreign Affairs Officer, GS-11 at the Agency’s Office of Intelligence and Threat Analysis, Bureau of Diplomatic Security facility in Rosslyn, Virginia. Complainant was terminated during her two-year probationary period, effective November 25, 2013. Management indicated that after a very good start, Complainant’s work product deteriorated in that her written articles required substantial editing. Complainant was advised to take basic writing and analysis courses to help correct her deficiencies. Complainant maintained that management’s comments about her writing were unsupported as the complaints she received were arbitrary and style comments and not comments regarding substance. On June 13, 2013, Complainant and a Special Agent had a disagreement when Complainant made a comment about Special Agents and he took offense. He yelled and cursed at Complainant while she was at her desk. Complainant indicated that she felt threatened because he had his gun on his waist. Following this argument, the Special Agent reported the incident to management. Management informed the Special Agent that his conduct was not acceptable. Management also spoke with Complainant, and the two apologized to each other. Therefore, management believed that the incident was over. Two days later, the Special Agent was made the team leader of Complainant’s unit. Complainant believed that, based on the verbal assault, his promotion was in retaliation against her. Complainant also maintained that after she filed her EEO complaint management engaged in other conduct which ultimately led to her termination.

On August 16, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:

1. On July 15, 2013, her portfolio responsibilities for Turkey were removed;
2. On July 31 and August 5, 2013, her requests for training were denied;
3. On August 1, 2013, she received a negative memorandum that served as her mid-year review regarding her performance;
4. On August 6, 2013, she was reassigned to the DS/Public Affairs Office;
5. On August 8, 2013, management informed her that her SCI security clearance and partial building access would be removed; and
6. Effective November 25, 2013, she was terminated from Employment.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge. When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to reprisal as alleged.

Specifically, the Agency determined that even if it assumed Complainant established a prima facie case of reprisal, there were legitimate, nondiscriminatory reasons for its actions.

Accordingly, the Agency’s FAD which found that Complainant did not demonstrate that she was subjected to reprisal is AFFIRMED.
[…]
To show pretext, Complainant argued that reprisal was a factor in Management’s action in Claim 1 because her portfolio was changed after she informed management of her intent to file an EEO complaint regarding the Special Agent incident. With respect to Claims 2 – 6, Complainant asserted that the manner in which she was treated with regard to training, her performance review, her detail, her security clearance and her termination was in retaliation for her initiation of an EEO complaint. The FAD found that Complainant’s subjective beliefs, without any evidence to support those beliefs were not evidence of pretext. No evidence in the record supported Complainant’s claim that any of the described actions were taken due to her EEO activity. According to the Agency, the record strongly supported management’s account of the events. Therefore, the Agency found that Complainant could not meet her burden of proving by a preponderance of the evidence that management’s reasons were untrue or unworthy of credence.

CONTENTIONS ON APPEAL

On appeal, Complainant reiterates her contention that two days after she reported the verbal assault by the Special Agent, he became her team leader, which she believes was undoubtedly an act of retaliation. Complainant maintains that on July 1, 2013, she reported to management that her working conditions were intolerable and that she was contacting the EEO office. Complainant also indicates that after she filed her complaint all adverse performance related issues were documented. On July 15, 2013, she maintains that she received an Unacceptable Performance Memorandum, indicating that her writing style was too academic. Complainant contends that she was held to a higher standard than needed and that in order to keep her job she needed only to get a fully successful rating, not an outstanding. Complainant also asserts that she should have been placed on a PIP before she was removed. Finally, Complainant maintained that work was late only when the Agency had not properly staffed the unit and she was there in the unit alone doing the work of three people. Complainant again asserts that in retaliation for her EEO complaint she was terminated on November 25, 2013.

In response, the Agency requests that the FAD be affirmed as Complainant did not show that the Agency erred in finding that she did not prove her case.

ANALYSIS AND FINDINGS

Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that even if we assume arguendo that Complainant established a prima facie case of reprisal, the Agency articulated legitimate, nondiscriminatory reasons for its actions as addressed above. To show pretext, Complainant, among other things, maintained that the comments made about her written work product were arbitrary and concerned matters of style. She maintained that after she filed her EEO complaint criticisms about her work product increased. We find however, that the record supports the Agency’s position that Complainant was repeatedly spoken to regarding her work product and she did not conform to management’s concerns.

With respect to Complainant’s arguments on appeal, we find that other than her conclusory statements she has not provided persuasive evidence that she was subjected to reprisal. Complainant asserts that the Special Agent that assaulted her verbally was promoted to the team leader in order to retaliate against her. Notwithstanding the lack of evidence to support this contention, we note that the record indicates that the Special Agent never took the position. Complainant also maintained that if there were real concerns about her work that she should have been placed on a PIP. We find however that the Agency adequately explained that probationary employees do not have access to the PIP program. Finally, Complainant also maintained that due to a lack of staff on several occasions she was left alone and during those times she needed to request extensions for her work. While this may be true, we find that Complainant did not show how this was related to her claim of reprisal. Complainant acknowledged that she was left alone because her coworkers got off work at an earlier time than she did. With regard to Complainant’s termination during her probationary period, the Commission has long held that an Agency has broad discretion in terminating an employee during their probationary period as long as it is not for discriminatory reasons. In the instant case, we find no persuasive evidence of a discriminatory motivation.

CONCLUSION

Accordingly, the Agency’s FAD which found that Complainant did not demonstrate that she was subjected to reprisal is AFFIRMED.

Read in full here.

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Tillerson’s Hiring/Lateral Transfer Freeze: What Priorities Shape Staffing Freeze Exceptions?

Posted: 1:40 am ET
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So Secretary Tillerson has apparently lifted the hiring freeze for WAEs to work the FOIA shop (FS retirees from any agency and CS retirees from DOS are eligible), but Diplomatic Security could not get one position established for its Mobile Security Deployments Office because there is still a freeze on hiring and lateral transfers for the rest of the Foggy Bottom universe?

Diplomatic Security’s Office of Mobile Security Deployments (MSD) is the agency’s emergency security support, crisis response, and special mission component. MSD was originally established in 1985 under the Bureau of Diplomatic Security’s (DS) Directorate for Training to provide training and security support to overseas posts. As a result of the 9/11 attacks, the Department in 2002 expanded MSD’s mission to include:

  • Security Support Teams, which deploy to embassies or consulates during periods of immediate threat of terrorist or criminal activity, crisis, natural disaster, or other unusual event.
  • Tactical Support Teams, which provide protection for the Secretary of State and other high-risk VIPs, both domestically and as required when the Secretary is traveling abroad.
  • Integrated Mobile Training Teams, which provide specialized security training at overseas posts for U.S. Government employees and to foreign partners.

According to State/OIG, MSD is authorized 104 Foreign Service, 24 Civil Service, and 26 contractor positions. At the time of the inspection, 25 percent of the Foreign Service positions were unfilled.

DS leadership acknowledged that MSD is critical to the security and safety of the Secretary and the Department’s embassies and consulates. Nonetheless, the office faced, on average, a 13.7 percent shortfall in staffing in the three years prior to 2017. This staffing shortfall resulted in 14 agent positions, or two and a half teams, being unstaffed. The staffing shortfall increased in 2017 to 38 percent; a shortfall of 38 agent positions or staffing for six and a half teams. In addition to reducing the number of teams it deployed, the staffing shortfall also required MSD to prioritize Security Support Team and Tactical Support Team missions over Integrated Mobile Training Team missions. As a result, MSD frequently had to reschedule training missions to address more urgent priorities.

In FY 2016, MSD teams deployed 70 times, often on short notice for periods up to 2 months or more, to locales where U.S. embassies and consulates faced serious security threats. Additionally, from July 2014 through April 2017, MSD dedicated 6 of its 10 teams to continuous missions in South Sudan and Somalia, leaving only 4 teams to address other crises or provide needed training. In December 2016, when every available team was deployed on priority missions, MSD trained senior agents, not normally deployed, to create an additional team in case another crisis arose. DS senior leadership acknowledged the need for additional MSD agents but also recognized DS’ bureau-wide shortage of agents. […] MSD met the standards in 1 FAM 262.5-3(1), which require the office to provide Security Support Teams for emergency support to overseas posts during periods of high threats, crises, or natural disasters. The office also met Department standards in 12 FAH-1 H-024.1-2b, which state that Security Support Teams should provide time-sensitive protective security for ambassadors, post personnel, or facility protection, to generally counter a direct or imminent threat of attack. MSD deployed 25 Security Support Teams in FY 2015, 18 in FY 2016, and 10 through the first 7 months of FY 2017. Among the missions conducted from September 2016 through April 2017, MSD provided protective support during the ordered departure of Embassy Kinshasa personnel due to political protests. During the same period, MSD also provided a protective detail for the Ambassador and a tactical operations center at Embassy Juba in the face of civil unrest. Other Security Support Team missions included support to U.S. embassies in the Gambia, Mauritania, the Republic of the Congo, and Somalia. While at a post, Security Support Teams also provided training to regional security officers, Marine Security Guards, the local guard force and American family members in an effort to strengthen their capability to meet future crises.

The State/OIG report notes that MSD did not have anyone permanently assigned to provide high-level oversight for its administrative operations and procedures per GAO suggestion. So last year, MSD apparently established a temporary position for an employee to exercise high-level, unified oversight of the MSD administrative functions.

OIG found that the two DS Special Agents, each of whom held the position for only a few months, were instrumental in implementing significant improvements in MSD personal property internal controls, including the examples described above. These Special Agents also prepared, drafted or updated 50 standard operating procedures on all areas of MSD operations. Based on these accomplishments, OIG concluded that there is a compelling justification to establish a permanent position to maintain the improvements and to provide long-term stability in the direct oversight of contracts, budget, and property management. Without permanent senior oversight, the office risks reverting to its former practices, including an inability to effectively manage SPE.

SPE stands for Sensitive Protective Equipment which refers to equipment, such as weapons and optical equipment like night-vision goggles, issued to agents in support of their law enforcement, security, and protective missions. State/OIG recommended that the Bureau of Diplomatic Security “should make the Office of Mobile Security Deployments’ temporary administrative chief a permanent position.”

Management Response: In its October 13, 2017, response, the Bureau of Diplomatic Security concurred with the recommendation. The bureau noted that it had updated the internal organizational structure of the office to depict the new position. The bureau further stated that once the Department’s restrictions on hiring and lateral transfers are lifted, it would attempt to establish the position in the General Schedule to ensure permanence and continuity.

Read the full report here.

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Whistleblower in @StateDept “CIVPOL” Contract Gets $875K in False Claims Act Settlement

Posted: 12:30 am ET
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On September 13, USDOJ announced that Pacific Architects and Engineers, LLC has agreed to pay $5 million in False Claims Act allegations related to “PAE’s Civilian Police “CIVPOL” contract in support of State Department missions in Afghanistan, Haiti, Lebanon, Liberia, South Sudan, and elsewhere. The announcement includes a note that “The claims settled by this agreement are allegations only, and there has been no determination of liability.” It also adds that the $5 million settlement also resolves a lawsuit filed in the U.S. District Court for the District of Columbia by former PAE manager Robert J. Palombo under the qui tam, or whistleblower provisions, of the False Claims Act and that Mr. Palombo will receive $875,000 as his share of the government’s recovery.

Below is an excerpt from the announcement:

WASHINGTON – Pacific Architects and Engineers, LLC (“PAE”) has agreed to pay the United States $5 million to resolve allegations that it knowingly failed to follow vetting requirements for personnel working in Afghanistan under a State Department contract for labor services. PAE is a Virginia-based contractor that provides personnel and other support to various federal government agencies.

The settlement was announced today by U.S. Attorney Channing D. Phillips and Steve A. Linick, Inspector General for the U.S. Department of State.

The agreement resolves claims relating to PAE’s Civilian Police “CIVPOL” contract in support of State Department missions in Afghanistan, Haiti, Lebanon, Liberia, South Sudan, and elsewhere.  In 2007, the State Department awarded PAE a task order under the CIVPOL contract to provide training and mentoring personnel to counter-narcotics and drug interdiction police and investigators in Afghanistan. The task order required PAE to conduct extensive background checks on U.S. personnel that were in high risk or armed positions, including independently developed reference checks. For local, national, and third party national employees working on the task order, PAE was obligated to submit their names to the State Department’s Regional Security Office in Afghanistan for additional security clearance. According to the government’s evidence, PAE was aware of these contractual requirements but did not comply with them for extended periods. The United States asserts that invoices PAE submitted to the State Department for the labor services of improperly vetted personnel were false.

“This settlement affirms our commitment to hold government contractors accountable for properly screening employees, particularly those who work alongside our government’s personnel in fragile areas of the world,” said U.S. Attorney Phillips. “In this particular matter, it is alleged that PAE failed to conduct the appropriate vetting for personnel working in Afghanistan under a State Department contract for labor services for which invoices were later submitted. Our Office will continue to investigate and seek appropriate recoveries from contractors who do not meet their obligations.”

“The OIG special agents and staff assigned to this case should be commended for their excellent investigative work,” said Inspector General Linick. “Rooting out waste, fraud, and abuse is at the heart of any OIG mission, as is ensuring that contractors are accountable for every taxpayer dollar they receive.”

The settlement also resolves a lawsuit filed in the U.S. District Court for the District of Columbia by former PAE manager Robert J. Palombo under the qui tam, or whistleblower provisions, of the False Claims Act. Under the False Claims Act, private citizens may bring suit on behalf of the United States and share in any recovery obtained by the government. Mr. Palombo will receive $875,000 as his share of the government’s recovery. The case is captioned United States ex rel. Robert J. Palombo v. PAE, Inc., et al. 

The claims settled by this agreement are allegations only, and there has been no determination of liability.

This settlement was the result of an investigation into Mr. Palombo’s allegations by the United States Attorney’s Office for the District of Columbia and the Department of State, Office of Inspector General.

The full statement is available here.

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