@StateDept Fails in FSGB Defense Over Coersive (Unlawful) Curtailment

 

The FSGB found that the State Department committed in prohibited personnel practice (“PPP”) violation of 5 U.S.C. § 2302(b)(4) against an FS employee stationed overseas when it coerced his curtailment from post. The Board also found that the curtailment in this case failed to comply with 3 FAM 2443.2. This case is horrifying in how carelessly embassy officials can chuck anyone out the airlock.
Also see FSGB: When Voluntary Curtailment Is NOT Truly Voluntary
According to the FSGB ROP, the Department questioned “whether 5 U.S.C § 2302 applies to Foreign Service Officers, because Title 5 of the U. S. Code applies only to Civil Service Employees.15 However, it concludes that, assuming the provision applies, there is no evidence to support the finding of a violation”.
The Board’s decision says “we address the Department’s question of whether Foreign Service Officers are protected against prohibited personnel practices. […] Under Section 105 (b)(2)(B)(4) of the Foreign Service Act of 1980, all FS members are free from any personnel practice prohibited by 5 U.S.C. § 2302. […] we find that PPP protections apply to Foreign Service Officers under Section 105 of the FSA.
The oldest executive agency then argued before the Grievance Board that the Senior Regional Security Officer’s alleged statement that “all this would go away,” while putting his hand on the investigatory file, “could have merely meant the file itself would be gone or that the Ambassador’s determination to involuntarily curtail him would be obviated by his decision to voluntarily curtail.”
And get this, the Department concludes that the “vague statement” by the SRSO was not deceitful.”
The Department also argued that grievant has “failed to meet his burden to show that the SRSO knew that his statement was untrue or that he acted with an intent to mislead grievant.”
Oh, lordy!
Then covering all its bases — “even assuming that the statement was deceitful, the Department contends that Section 2302(b)(4) only applies to “competition for employment,” which is limited to hiring and promotions and does not apply to the retention of employment.14  Although curtailment is an assignment, it is not a process of hiring or promotion.”
The Department agreed that “it committed a harmless error of its curtailment procedures.”
It sure wasn’t “harmless” on the affected employee and his family, was it?
The FSGB did not buy it.

It is clear that the Board’s analysis found that the SRSO engaged in deceit. The statute prohibits “deceit or willful obstruction.” While obstruction is defined as willful, the drafters did not see a need to use the adjective with deceit. Deceit is willful; it is not negligent or inadvertent.

The Board includes “deceit” in the footnotes:

26 Black’s Law Dictionary (10th ed, 2014) defines deceit: “1. The act of intentionally leading someone to believe something that is not true; an act designed to deceive or trick. 2. A false statement of fact made by a person knowingly or recklessly (i.e., not caring whether it is true or false) with the intent that someone else will act on it. 3. A tort arising from a false representation made knowingly or recklessly with the intent that another person should detrimentally rely on it.”

On curtailments, the Department notes that “under 3 FAM 2443.2(a), the Chief of Mission (COM) has discretion to determine curtailment when it would be in the best interest of the post. While the COM must follow procedures, there is no evidentiary standard, and the curtailment procedures do not require the same rigor as the disciplinary process.”
The Department then makes a shocking or maybe not really a shocking admission:

“..there were serious allegations against grievant, and the COM was not required to determine whether they were true, but only if the curtailment was in the best interests of the post.”

Wait, what? So anyone could make a claim, state an allegation, anyone could start a rumor, and COM is not required to determine whether they were true? How bonkers is that?
Via Record of Proceedings
FSGB Case No. 2019030 | September 29, 2021

The Department’s MFR seeks reconsideration of the Order on two grounds. The first ground for reconsideration is that the Department claims that the Board committed “clear error” by failing to find evidence of two essential elements of a prohibited personnel practice (“PPP”), in violation of 5 U.S.C. § 2302(b)(4), despite finding that the Department committed a PPP. The missing elements, according to the Department, are – a willful or deliberate deception and a competition for a position. The second basis for reconsideration is that the Department claims that the Board committed “clear error” by conflating the curtailment and discipline procedures when it failed to remand to the Department the question of whether it would have curtailed grievant absent the procedural error by failing to follow the Department’s curtailment regulations.

Grievant, an FS-02 Security Engineering Officer (“SEO”), served as the Deputy Officer in Charge (“DOIC”) of the Department’s Engineering Services Office (“ESO”) at the U.S. Embassy in REDACTED (“post”) from August 2016 to January 18, 2017. His rater was the Officer-in-Charge (“OIC”), and his reviewer was the Senior Regional Security Officer (“SRSO”).

The incident that led to a preliminary investigation of the grievant and, subsequently, an in-depth investigation of him by the Office of Civil Rights (“S/OCR”), is an alleged threat made by grievant at the end of December 2016. On January 10, 2017,1 a supervisee claimed that grievant had made an implied threat of physical violence to him, and the SRSO assigned the Assistant Regional Security Officer (“the ARSO”) to investigate and notified the Bureau of Diplomatic Security (“DS”), Office of Special Investigation (“DS/DO/OSI”). On January 12, post management briefed the Ambassador, who decided to exercise his authority under 16 STATE 27226 to curtail grievant from post. Later that day, January 12, the SRSO, grievant’s reviewing officer, held a meeting with grievant, two Human Resource Officers, and grievant’s rater and told grievant that the Ambassador had decided that he would be involuntarily curtailed if he did not voluntarily curtail, and if he voluntarily curtailed, “all of this,” gesturing to the investigative file, “would go away and it would be as if he had been curtailed for family reasons.”2

But the investigation did not, in fact, “go away.”

On January 14, the ARSO issued an RSO Report, which the Accountability and Suitability Board (“A&SB”), which included the SRSO, discussed that day with the Ambassador. The case was referred to the Department of State’s Office of Civil Rights (S/OCR) that same day. On January 16, the Management Counselor prepared a Decision Memorandum (“Decision Memo”) in Support of No-Fault Curtailment, which was sent to the front office. A day later, on January 17, grievant met with the HRO at post and formally accepted a “voluntary curtailment,” and management approved his request that day. On January 18, Grievant curtailed without having been advised of the ARSO’s report or of the referrals to S/OCR and to
DS/DO/OSI.
[…]
GTM/ER proposed to suspend grievant on a single charge of Improper Comments, with three specifications. The Deciding Official (“DO”) sustained only two of these specifications, both dealing with alleged threats. With the dismissal of the third specification, all potential EEO violations were dismissed. The DO reduced the penalty from a two-day to a one-day suspension.”5

Grievant filed an agency-level grievance, alleging that the one-day suspension violated regulations; that his 2017 Employee Evaluation Report (“EER”) contained a falsely prejudicial statement based on the charge; that the RSO Report contained a falsely prejudicial statement that he had been counseled for anger management; that his curtailment was coerced and unlawful under 12 STATE 27212 (“Curtailment of Employee Based on Conduct or Disciplinary Issues”); and that his assignment to a non-supervisory, overcomplement6 position was based on a PPP. The grievance was denied by the Department.

Board found that the Department committed a PPP, in violation of 5 U.S.C. § 2302(b)(4). […]Moreover, even without the PPP finding, the Board found that the curtailment failed to comply with 3 FAM 2443.2, and the Department does not challenge that finding.

[…]
By inducing grievant’s “voluntary curtailment” on an unenforceable assurance, post avoided going through the procedural safeguards of 3 FAM 2443.2, which apply to voluntary curtailments that are initiated at the request of the COM. What the Department does not acknowledge is that the SRSO (importantly, grievant’s reviewing official, the official who had directed the ARSO’s investigation and notified DS/DO/OSI and a member of the A&SB advising the Ambassador) told grievant that if he voluntarily curtailed, it would be “as if he curtailed for family reasons.” That would mean a curtailment under 3 FAM 2443.1 with no prospect of discipline.

The Board denied in full the Department’s Second Motion for Reconsideration and issued six other orders related to back pay, reconstituted Selection Boards, promotion, and interest on back pay.
The Board ordered remedies for violations of 3 FAM 2443.2 and 5 U.S.C. § 2302(b)(4) , remedies for falsely prejudicial language in Grievant’s EER; attorney’s fees request is held in abeyance until final resolution of the remedies.
The remedies ordered include:

2. The Department shall pay grievant “an amount equal to all, or any part of the pay, allowances, or differentials [including overtime], as applicable, which [he] normally would have earned or received” during the period of 18 ½ months of the remainder of his posting at post, had he not been improperly curtailed, less any amounts he earned through other employment during that period, pursuant to 5 U.S.C. § 5596(b)(1)(A)(i), 5 C.F.R. 550, Subpart H..

4. The Department shall hold four reconstituted Selection Boards for the years when grievant’s OPF contained the uncorrected 2017 EER.

5. If grievant is promoted by any of the reconstituted SBs, the promotion should beretroactive to the date a promotion would have been implemented by the SB for which it was reconstituted. The Department shall pay the wage differential from the date of any retroactive promotion.

6. The Department shall pay interest on any back pay awards due under this order.

The conduct of these government representatives at this post should be labeled “notoriously disgraceful conduct”. And the State Department should be shamed for defending this type of unacceptable behavior.  Oh, please don’t tell us these people all got promoted!
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FSGB: When Voluntary Curtailment Is NOT Truly Voluntary

 

This is part 1 of two parts we want to post about this specific grievance case. We want to highlight this part of the curtailment process that’s called “voluntary” because it was not a voluntary one, but a “coerced voluntary curtailment”. We have no idea who are the individuals involved in this case, of course, but we are aware of how the so called “voluntary” curtailment has been misused and far from being voluntary in other cases in the past.
The chief of mission was supposed to “ensure that rigorous standards apply to curtailment requests.” Whatever standards were applied in this case could not be called rigorous by any stretch of the imagination. Good grief, the ARSO wrote a false report! As if that was not enough, a supervisor engaged in deceitful behavior. And State basically shrugged its admirable shoulders, and said who cares?
Record of Proceedings
FSGB Case No. 2019030 | September 30, 2020
INTERIM DECISION  (CORRECTED 10/05/2020)

We find here that the procedures for curtailing grievant violated 3 FAM 2443.2. The due process provisions of the regulation were not
followed. Grievant was given an ultimatum to voluntarily curtail, or he would be involuntarily curtailed, when the Ambassador had limited information and the grievant had not been given any of the due process rights outlined in 3 FAM 2443.2 and the guideline cables provided below.
The applicable FAM, 3 FAM 2443.2 Involuntary Curtailment at Request of Chief of Mission, reads:

a. If the chief of mission determines that curtailment of an employee’s tour of duty would be in the best interests of the post [or] the employee, the chief of mission may ask that the employee’s tour of duty be curtailed immediately.

b. If the employee is an employee of the Department of State, the chief of mission should submit a request through the DIRGEN [Director General] channel to the Director General of the Foreign Service requesting curtailment of the employee. The request must:


(1) Include background information on any incidents that support the request;

(2) Confirm that the employee has been informed of the request and the reasons therefore; and

(3) Confirm that the employee has been advised that he or she may submit comments separately.


c. If the employee requests curtailment, the chief of mission should use the DIRGEN channel to:


(1) Inform the Director General of the chief of mission’s support of the employee’s request; and

(2) Explain fully the circumstances that, in the chief of mission’s judgment, justify immediate curtailment.


d. Except in cases of serious misconduct, criminal activities, or actions that have serious security implications, a chief of mission may offer the employee the alternative of submitting a request for immediate voluntary curtailment. If the employee is an employee of another agency, the request should be submitted to [their appropriate officials]. … The same supporting information required in 3 FAM 2443.2 should be used in requesting curtailment.57

According to the Decision Memo, the Ambassador invoked 16 STATE 27226, issued on March 14, 2016, Chief of Mission Instructions Regarding Conduct and Discipline Abroad, to determine that curtailment was necessary in this case. The summary describes the cable as the
first of two issued that date to provide guidance on conduct and discipline issues. The cable notes that COMs have full legal authority for the supervision of all government executive branch employees in that country.

The other memo issued on the same date, 16 STATE 27212, Curtailment of Employees Based on Conduct and Disciplinary Issues (Checklist), provides detailed procedures for handling curtailments. Among the relevant paragraphs are:

Par. 1. Curtailment may include the employee’s immediate departure from post, and can be voluntary or involuntary. As COM, you must ensure that rigorous standards apply to curtailment requests. Curtailments disrupt lives of employees and entail high professional and monetary cost from the Service in terms of lost productivity, service, and frequently, investment in training. Therefore, this authority must be used with judicious care and restraint.

Par. 2. If you, as COM, determine that curtailment of an employee’s tour of duty would be in the best interests of the post [or] the Service … you may request that the employee’s tour of duty be curtailed immediately. Per 3 FAM 2443.2, you should submit a request through the DIRGEN [Director General] channel to the Director General of the Foreign Service. The curtailment cable request must:

o include background information on any incidents that support the request;

o confirm that the employee has been informed of the request and the reasons therefor; and

o confirm that the employee has been advised that he or she may submit comments separately.

..HR strongly encourages post to share the request cable with the employee so the employee has the full report on which he/she can send comments.

Par. 3. Except in cases of serious misconduct, … you may offer the employee the option to request immediate voluntary curtailment in lieu of involuntary curtailment. If the employee requests voluntary curtailment, he/she should request immediate curtailment through the HR channel in a message addressed to his/her Career Development Officer (CDO) in HR/CDA (see para. 19 [checklist]). As COM, please ensure that you use the DIRGEN channel to confirm your support, or opposition to, the employee’s request and explain fully the circumstances that justify immediate curtailment.


Par. 13. Curtailments should first be vetted by a management team at post. …. Proper vetting throughout the process then allows the COM to be better able to determine whether to move forward with the curtailment request.


Par. 14. In all cases, the DIRGEN cable must include background information on the incident (s) that supports post’s decision. Except for cases of directed curtailment, the cable must confirm that the COM has discussed the proposed action with the employee and also confirm that he/she may submit separately, either by cable via the DIRGEN channel or email to the DG Direct e-mail address, any comments about the curtailment. HR will not approve any curtailment request that comes without supporting information.

Par. 19. D. [H]as the employee had the opportunity to discuss the situation with the DCM?


Par. 20. As applicable, the above elements should be addressed in a DIRGEN cable. The Department is committed to making the curtailment system work for the good of the Service and our employees, protecting both the authority of management and the rights of employees.

Grievant’s decision to curtail was not truly voluntary. Grievant did not initiate the curtailment. The Ambassador, according to what the RSO and HR told grievant on January 12, had decided that grievant had a choice to either curtail voluntarily or involuntarily. In doing so, he was exercising his right under 3 FAM 2443.2d to give the employee the option of taking a voluntary curtailment in lieu of an involuntary one. Given that ultimatum, the only way to prevent the potential adverse career effect was to choose “voluntary” curtailment. According to grievant, he was also given the inducement that if he chose “voluntary” curtailment, “all this,” which he could reasonably understand to mean any type of charge against him, would be withdrawn. Given the lack of denials, we credit grievant that this statement was made. Yet we know that, on January 14, before the curtailment took effect, the ROI had been closed without action by DS and referred to S/OCR. The case was not going away.

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EEOC Reverses @StateDept Dismissal of Reasonable Accommodation Complaint Over Housing Assignment

 

 

Via EEOC Appeal No. 2021001832:
At the time of events giving rise to this complaint, Complainant was employed as a Criminal Investigator, GS-1811-13, with the Department of Justice – Drug Enforcement Agency (DEA), Caribbean Division – Curaçao, Netherlands Antilles Country Office, and stationed at the Department of State’s (hereinafter Agency or State) U.S. Consulate – Curaçao. On January 6, 2020, Complainant filed an equal employment opportunity (EEO) complaint against State alleging he was discriminated against based on his disability (asthma and association with his minor son with asthma who was part of his household) and reprisal for prior protected EEO activity under the Rehabilitation Act (requesting reasonable accommodation) when:
1. he was denied reasonable accommodation regarding his housing assignment in Curaçao; and
2. his assignment to US Consulate Curaçao was terminated on September 13, 2019.
State conducted an EEO investigation and then issued a FAD dismissing the complaint for failure to state a claim because Complainant was not a State employee, it had no decisionmaking authority on him, and it took no action “independent” of the DEA, Complainant’s employing agency. On appeal, Complainant submits a State regulation which indicates the Chief of Mission (Ambassador or Consul General) has full responsibility for the direction, coordination, and supervision of all U.S. executive branch employees in their country, with exceptions that do not apply here. We note that in his investigatory statement, the Consul General at Curaçao stated he was responsible for overseeing the activities of the DEA at his post, including Complainant, and that DEA asked if he would concur with curtailment (terminating the tour), which he did.
Additional details:

Complainant repeatedly articulated his view that State discriminated against him. See e.g., EEO complaint, at Bates No. 4; Affidavit A, at Bates Nos. 59, 60, 71; Rebuttal letter by Complainant’s former counsel writing Complainant “rebuts… that [the Consul General’s] actions to curtail… his assignment at… Curacao was at the request of DEA” at Bates No. 200; Complainant’s appeal statement that, “State was unilaterally responsible for the denial of a request for reasonable accommodation with respect to complainant’s housing assignment on September 13, 2019 (claim #1) and complainant’s assignment to… Curacao was broken on September 13, 2019 (claim #2)…. At no point in time did any individual from [DEA] request to break the… assignment at… Curacao or deny [my] request for a reasonable accommodation.”

Under a plain reading of 29 C.F.R. § 1614.106(a) – and this Commission’s own case law – Complainant’s belief alone is enough to enable him to file a discrimination claim with State. See e.g., Pion v. OPM, EEOC Request No. 05880891 (Oct. 18, 1988) (pointing out that the forerunner to current 29 C.F.R. § 1614.106(a) had once been amended precisely to guarantee the right of complainants “to bring a complaint against any agency they believed engaged in discriminatory conduct”); Warren v. OPM, EEOC Request No. 05950295 (Aug. 17, 1995) (ruling that “[i]n the present case, although [complainant] is clearly an employee of the Department of Agriculture, the Commission finds that the complaint was properly made against [OPM], the agency which allegedly discriminated against [him]”); Koch v. OPM, EEOC Appeal No. 01A13849 (Dec. 21, 2001) applying all the above cited cases. Thus, on these particular facts, State had no right to reject complainant’s complaint on the grounds that it was filed with the wrong agency.
[…]
The Agency is ordered to process the remanded claims, as redefined herein, from the point processing ceased. This means the Agency shall, within 10 days from the date of this decision, shall again notify Complainant that he has the option to request a hearing before an EEOC Administrative Judge (AJ) or an immediate FAD within 30 days of receipt of the notice in accordance with 29 C.F.R. § 1614.108(e). 2 If Complainant requests a FAD without a hearing, the Agency shall issue a final decision on the merits of the claim within sixty (60) days of receipt of his request.
[…]
Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency.

Full decision is available to read here (PDF).

Click to access 2021001832.pdf

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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

 

How @StateDept Handles Domestic Violence Overseas: One Example and Some Questions

 

In the many years that we’ve watched the State Department, or asked questions about assaults, harassment, or domestic violence, we seldom see a public accounting of how the agency handles these cases, particularly overseas.  State had such a case in 2018. And we’re only seeing it now because the case landed in the U.S. Equal Employment Opportunity Commission.  The EEOC case came from a complainant who was previously assigned to an overseas post in the Bureau of Near Eastern Affairs (NEA).
On November 7, 2018, Complainant filed an EEO complaint alleging that the Agency [State Department] subjected him to discrimination and a hostile work environment/harassment on the basis of sex (male), status as a parent, and in retaliation for “whistleblower activity”. The EEOC notes that “With respect to Complainant’s allegations on appeal of violations of the U.S. Constitution, whistleblower protection laws, criminal laws, and tortious laws not addressed by EEO laws, these laws are not within the purview of the EEO complaint process.”.
The State Department concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. On March 13, 2020, the EEOC issued a decision which affirmed the Agency’s final decision. Excerpt from Appeal No. 2019005790:
The Agency accepted the complaint as to the alleged basis of sex and conducted an investigation, which produced the following pertinent facts:
Complainant was assigned to the Agency’s facility [/], accompanied by his spouse (“Spouse”) (female) and children. He and his family resided in U.S. government-supplied housing.
On September 21, 2018, Spouse reported an incident of domestic violence to the Deputy Regional Security Officer (Deputy RSO), alleging Complainant assaulted her. The alleged assault occurred on September 9, 2018, while they were on vacation in Poland. Deputy RSO attested that, based on Spouse’s report, it was reasonable to believe that domestic violence had occurred, and he reported the situation to the front office and the Office of Special Investigations (OSI), as required by Agency policy.
The Agency’s Family Advisory Team (FAT) was advised of Spouse’s report of domestic violence and they recommended that, in the best interest of the family, Complainant and Spouse be separated for a cooling down period. One factor in the decision was Spouse’s comment that she was afraid of Complainant’s finding out that she made the report. Members of the FAT recommended the separation out of concern for further violence, without a determination as to the veracity of Spouse’s allegations, until a decision could be made as to the next steps. The Deputy Chief of Mission instructed that Complainant be removed from the residence, pending further deliberations by the FAT.
On September 21, 2018, Deputy RSO and two other Agency employees went to the residence Complainant shared with his Spouse and their children and informed Complaint that he was being relocated to a hotel. Complainant and Spouse were instructed not to contact each other until a decision was made about the alleged domestic violence incident. Complainant cooperated and was escorted to a hotel.
On September 25, 2018, Complainant reported to Deputy RSO that Spouse was the aggressor in the domestic violence incident. Deputy RSO instructed Complainant to communicate with OSI, as they had jurisdiction.
In the instant complaint, Complainant alleged sex was a factor because he was required to leave the residence, while Spouse remained in the home with their children.
On September 26, 2018, Complainant met with a Human Resources Officer (HRO) and Agency security personnel and was informed that he must immediately leave the post and return to the United States. He was given the choice of voluntary or involuntary curtailment. He was informed that the issues facing his family could not be addressed locally and resources were not available to manage his family situation. Complainant agreed to a voluntary curtailment because the official reason would be classified as personal and there would be no discipline. He also attested that he selected voluntary curtailment because, even though he was the victim of Spouse’s assault, he did not believe he would have any support at the post.
HRO explained that when there is a conflict between two members of a household and one or more of the individuals are direct hires, the Agency policy is to curtail the direct hire. She further explained that this approach is preferred as there is an unwillingness to involve the local police in a potential domestic violence situation. She explained that the post cannot adjudicate claims and make a determination, as that authority rests with OSI. She explained that the post has no authority to require a family member of a direct hire to leave the country and the only viable option is to require the direct hire to curtail, which then will require the spouse or other family member to vacate the government-supplied housing.
The Deputy Chief of Mission attested that she made the decision to curtail Complainant, as this was the third occasion of serious behavioral incidents involving Complainant since he arrived, less than a year ago and, based on the advice from FAT, she instructed that he be given a choice of voluntary or involuntary.
On September 28, 2018, Complainant returned to the United States. Spouse and their children remained behind to pack their belongings and arrived in the United States on October 17, 2018.
Upon his arrival in the United States, Complainant was informed by Diplomatic Security that an update for approval of his security clearance had been initiated “for cause.” Complainant’s security clearance was not scheduled to expire until June 2021. Complainant alleged that the review of his security clearance was initiated by the post to support their decision to remove him from [post].
The Office Director of DS/SI/PSS explained that he was, in part, responsible for the investigation and adjudication of security clearances for the Department and Complainant was subject to an “out of cycle” investigation regarding his security clearance because of the reports received from a Diplomatic Security investigation alleging potential misconduct. He explained that the investigation was “for cause,” non-routine, and pursuant to regulations.
With respect to the alleged harassment, Complainant attested that, on November 7, 2018, the Agency notified him that he was the subject of an administrative inquiry into allegations that he was a harasser.
He explained that he learned that, during a social setting, he made a comment about Spouse that might have been considered a distasteful joke but did not rise to the level of harassment. He also alleged that, during a meeting with the American Foreign Service Association and Human Resources, a Human Resources representative asked him when he anticipated retiring.
[…]
The Agency explained that, following Spouse’s report of domestic violence, the Agency felt it in the best interest of the family that Complainant and Spouse be separated for a cooling down period, pending a determination as to what steps were next. The Agency further explained that there is an unwillingness to involve local authorities in such matters and it lacks the authority to adjudicate such matters. The Agency explained that in such situations involving a direct hire employee and an accompanying spouse, it is the Agency’s policy to curtail the direct hire, which would then cause the spouse and family to be required to vacate the government-supplied housing. The Agency also explained that Complainant was subject to an “out of cycle” investigation regarding his security clearance because of the reports of alleged potential misconduct. We note that, although Complainant and Spouse disagree as to who initiated the domestic violence, Complainant does not deny that the domestic violence occurred. We find the Agency’s actions of separating the spouses, sending the employee back to the United States, and subjecting him to another security investigation to be reasonable under these circumstances. Therefore, although Complainant has alleged discrimination, he has not established by a preponderance of the evidence, that the legitimate, non-discriminatory reasons articulated by the Agency were a pretext for unlawful discrimination or motivated by some unlawful discriminatory animus with respect to any of these claims.
The links to the related regs are below. In this case, State told the EEOC that “there is an unwillingness to involve local authorities in such matters and it lacks the authority to adjudicate such matters.” And yet, 3 FAM 1815.2 says:

d. If the initial report is substantiated, action may include one or more of the following: (1)  Post may call upon local authorities or resources in certain cases; […] (5)  Post may be asked to call upon shelter and child protection resources or find alternative shelter within the post community for the victim and any children.

Seriously though, why are these options decorating the FAM if they are never real options? In certain cases? Which cases would there be a willingness for post to call upon local authorities to settle a domestic violence case?
Perhaps the most striking thing here — well, a couple of things. 1) “Complainant agreed to a voluntary curtailment because the official reason would be classified as personal and there would be no discipline”; and 2) the Agency’s point that “the only viable option is to require the direct hire to curtail, which then will require the spouse or other family member to vacate the government-supplied housing.”
And then what?
The spouse and children returns to the United States. To where actually? To get back with the spouse? To a halfway house? To a homeless shelter? What actually happens to the family upon return to the United States following a report of domestic violence overseas? Folks do not always have houses in the DC area, spouses may be foreign born with no families in the DC area. In most cases, the household effects and those on storage are also under the employee’s name only (unless the spouse made prior arrangements).
So what happens next? Could ‘what happens next’ be one of the main reasons why folks do not report these cases?  

Related items:
3 FAM 1810 FAMILY ADVOCACY PROGRAM (CHILD ABUSE, CHILD NEGLECT, AND DOMESTIC VIOLENCE)
3 FAM 1815  DOMESTIC VIOLENCE

FSGB 2020-008: Voluntarily Curtail Under Threat of Involuntary Curtailment or a Bad EER

 

Via FSGB 2020-008
Grievant is a tenured FP-02 Diplomatic Security Special Agent assigned as the Regional Security Officer (“RSO”) at U.S. Embassy [REDACTED] from June 2, 2017 until her involuntary curtailment on May 30, 2019. On July 3, 2019 she filed a complaint with the Department’s Office of Civil Rights (“S/OCR”) alleging sex, disability and age discrimination and reprisal for prior protected activity. In her S/OCR complaint dated July 3, 2019, she alleged 10 separate incidents of discrimination or reprisal by her rater, the Deputy Chief of Mission (“DCM”). She also alleged that at a May 8, 2019 meeting with the Ambassador (her reviewer), the rater and other senior officials, the Ambassador asked her to voluntarily curtail. When she refused, her rater informed her that her Employee Evaluation Report (“EER”) from April 16, 2018 to April 15, 2019 would contain a negative review statement. She ultimately declined to voluntarily curtail.
[…]
Grievant’s recitation of the facts – the underlying transactions – are contained in her agency filing as she has not yet filed her supplemental submission where she would have an opportunity to refine further her claims and remedies. In that filing, she provides extensive background chronicling allegations of sex and other forms of discrimination by her rater, the DCM. She also describes in detail four instances in which she invoked the displeasure of the Ambassador, her reviewer, for raising concerns that his actions or proposed actions constituted security risks. She then describes the removal of laudatory language in the draft rater’s statement and the circumstances surrounding her involuntary curtailment where she claims the DCM threatened to insert a negative reviewer’s statement into her previously drafted EER. She attributes both of these actions to retaliation for informing the DCM that she was initiating S/OCR proceedings.
From footnote, p.9:
“In stating I was going to seek EEO counsel and AFSA guidance related to discrimination I faced from the DCM, as I believe there were reprisal protections in place, I never envisioned I would face retaliation in the form of an involuntarily curtailment. It was only after I stated I was going to seek EEO counseling and AFSA guidance related to the DCM’s changes to the rater statement and then my refusal to voluntarily curtail under threat of involuntarily curtailment that a review statement which contained alleged performance issues materialized in retaliation for not acquiescing to the Front Office’s discrimination and reprisal.”
The FSGB Board issued the following order:
“… the Department’s Motion to Dismiss is denied in its entirety. Since the Department did not consider grievant’s claims on the merits, the Board remands the case to the Department for a decision on the merits. The Department should advise the Board of its decision not later than 45 days from the date of this order. Pending that decision, the Board retains jurisdiction of the case. Once the Department’s amended decision has been issued, grievant will have 60 days to amend her grievance appeal to the Board. In the meantime, the proceedings before the Board are stayed. The timeline for discovery will start anew when grievant files her amended appeal or advises the Board that no such amended appeal will be forthcoming.”
The FSGB files are not readable online; the files have to be downloaded first. Click here and locate FSGB 2020-008 from “Decision and Orders 2020” to read the full Motion to Dismiss order.

FSGB’s Noteworthy Cases Filed in 2019 and Pending Decision

The following cases are extracted from the Foreign Service Grievance Board’s 2019 Annual Report dated February 2020:
The grievant in FSGB Case No. 2019-045 was assigned to a country where the Zika virus was widespread. When his wife became pregnant, she was medically evacuated from the post. When the pregnancy ended in a miscarriage, State/MED contacted grievant’s wife and instructed her to forward the results of genetic testing done on the fetus, and she complied. Grievant claims that the Department gained access to these records under false pretenses and shared them in violation of the Genetic Information Nondiscrimination Act (GINA). He has asked that State/MED destroy the records. The Department has asserted that the Board lacks jurisdiction over the claims, and that grievant’s redress is through the Privacy Act.
The grievant in FSGB Case No. 2019-036 is an employee of the U.S. Agency for Global Media (USAGM), formerly the Broadcasting Board of Governors. He was hired in a position that had a salary cap of FP-02. In 2012, grievant was assigned to a position designated FP1/SFS (Senior Foreign Service). Grievant claims that at the time it was agreed that a mechanism would be found to lift the cap so he could compete for promotion to the higher grade. In 2012, a personnel form SF-50 was issued showing a skill code change to effect the desired change in status. Subsequently, however, the Human Resources Office advised grievant that the conversion was done incorrectly and that he was not eligible for promotion until the issue was resolved. Grievant claims that despite repeated requests from him, nothing has been done.
The grievant in FSGB Case No. 2019-020 claims that the Department retaliated against him when he questioned three grant activities involving his predecessor on the grounds of conflict of interest and violations of the ethics regulations. He claims that, as a consequence, his responsibilities were reduced and, ultimately, he was asked to curtail from post.
FSGB Case No. 2019-008 involves four claims, one of which is being resolved separately. In the first three claims, grievant challenges the Developmental Areas of three EERs and a low-ranking statement. In the fourth claim, grievant contends that his security clearance was wrongfully suspended and revoked. Although his clearance has subsequently been reinstated, he claims that harm to his career resulted.
In FSGB Case No. 2019-052, the grievant was assigned to a country in which the ambassador was a political appointee of the previous administration. Grievant believed she enjoyed good relations with him, despite a number of difficult issues the embassy encountered. However, when the ambassador chose to leave post early, he advised grievant that he was requesting her involuntary curtailment. On the advice of colleagues, she instead opted for a voluntary curtailment. She claims that although she was told by post management at the time that she would not be receiving an EER, she was later given one for a four-month period. That EER was the basis for a low ranking. Grievant claims that the EER includes a number of falsely prejudicial statements as well as procedural errors.
The grievant in FSGB Case No. 2019-040 is a female officer who claims that an EER she received is the result of gender bias and retaliation on the part of her rater. The EER formed a basis for low ranking.
The grievant in FSGB Case No. 2019-039 was the subject of an investigation, on the basis of which the Department originally recommended a 45-day suspension. While the charges were pending, the grievant was reached for promotion; however, the promotion was withheld pending the close of the disciplinary proceedings. Grievant was advised at the time that if the charges were resolved satisfactorily, his promotion would be made retroactive. At the close of the disciplinary procedures a number of years later, the penalty was reduced to a letter of admonishment. However, the Department maintains that the White House currently will not forward recommendations for retroactive promotions to the Senate for confirmation. It therefore forwarded a recommendation for promotion in 2019, not to be retroactive. Grievant claims back pay and benefits to the time he was reached for promotion.
The grievants in FSGB Case No. 2019-021 are new FSOs hired while already living in the Washington, DC area. They claim that they were improperly denied locality pay while assigned to long-term training prior to their first overseas assignments.
The grievant in FSGB Case No. 2019-024 is part of a tandem couple. When she was assigned to her first overseas post, her husband was granted Leave Without Pay to accompany her. According to State regulations, his official assignment was therefore Washington, D.C. Grievant and her husband returned to Washington after that assignment, in transit to their next post, where she took home leave and annual leave and had four months of language training. Rather than considering grievant as being on TDY and thus entitled to receive per diem, the Department classified her as having the same status as her husband, a Washington-based assignment, in accordance with its Standard Operating Procedures (SOP) on tandem couples. Grievant contends this is a violation of Department regulations, which treat each member of the Service as individuals entitled to their own benefits. Approximately one year after the grievance was filed, the Department, with AFSA approval, modified the operative SOP to permit tandem employees in grievant’s circumstances to be on TDY and receive per diem; however, the Department maintains that the modification was not retroactive and, therefore, does not apply to grievant.

U.S. Embassy Nassau: Aging Facility, Staffing Gaps, Curtailments, Morale Issues, and More in Sunny Bahamas

 

In 2012, State/OIG did an inspection of the US Embassy in Nassau, The Bahamas (see US Embassy Nassau: Where Absence Makes the Heart Not/Not Grow Fonder); State/OIG Nassau Report: What’s taking them so long?
The new inspection dated August 2019 reveals that the aging facility which was supposed to have been replaced in 2016 is still aging. The IG report now says that construction of a new chancery building is scheduled to begin in 2019 and be completed in 2021 on property purchased by the Bureau of Overseas Buildings Operations (OBO).
The State Department announced on February 1, 2019 that it has awarded the Design-Build contract for the new U.S. Embassy in Nassau to Caddell Construction Co., LLC of Montgomery, Alabama. Ennead Architects of New York, New York is the design architect for the project and Integrus Architecture of Spokane, Washington is the architect of record.
The report notes that the embassy had been without a permanent, confirmed ambassador since November 2011, when the incumbent, a political appointee, resigned. Her replacement was never confirmed, and, at the time of the inspection, the current nominee had been awaiting confirmation since 2017.
In May 2017, the WH announced the president’s intent to nominate Doug Manchester to be his ambassador to the Bahamas. His nomination was cleared by the SFRC in the fall of 2017 but failed to make it to the full Senate. His nomination was resubmitted in January 2018 and again in January 2019. The SFRC has held hearings on June 20, 2019. According to congress.gov, this nomination remains pending at the Senate Foreign Relations Committee.

 

Below via State/OIG:
  • Embassy Nassau is located in an aging facility originally leased by the Department of State (Department) in 1973 and purchased outright in 1994. Construction of a new chancery building is scheduled to begin in 2019 and be completed in 2021 on property purchased by the Bureau of Overseas Buildings Operations (OBO).
  • A related classified inspection report discusses the embassy’s security program and issues affecting the safety of mission personnel and facilities.
  • At the time of the inspection, the embassy had 143 authorized U.S. staff positions, 2 eligible family members, and 76 locally employed (LE) staff members. The embassy houses 11 different U.S. Government agencies and sub-agencies. Embassy Nassau also provides International Cooperative Administrative Support Services (ICASS)1 administrative and logistical support to U.S. Government agencies on Grand Bahama Island, Great Inagua Island, Andros Island, Great Exuma Island, and in Turks and Caicos.

Yay! Sections

  • The Chargé and, beginning in October 2018, the acting DCM carried out regular reviews of the Consular Section chief’s nonimmigrant visa adjudications, as required by 9 FAM 403.9-2d and 9 FAM 403.10-3d.
  • The Consular Section chief, who arrived in August 2017, demonstrated strong leadership in developing standard operating procedures, mentoring three First- and Second-Tour officers, and preparing for future hurricanes. OIG determined that the embassy’s consular programs generally complied with guidance in 7 FAM, 9 FAM, 7 FAH, applicable statutes, and other Department policies.
  • Embassy Nassau’s American citizen services workload consisted primarily of processing emergency passports. Nassau hosts up to six cruise ships from the United States per day with approximately 3,000 passengers each, the majority of whom are U.S. citizens. Passengers who missed their ships’ return to Florida contributed to the more than 400 emergency passports Embassy Nassau issued in FY 2018.
  • OIG determined that the Chargé and the acting DCM conducted their security responsibilities in accordance with 12 Foreign Affairs Handbook (FAH)-1 H-721[…] Shortly after her arrival, the Chargé reviewed, revised, and reissued all security directives, including one to all personnel under chief of mission authority mandating participation in the weekly checks of the emergency and evacuation radio network. In addition, she emphasized to staff that she expected full participation in the radio checks. Participation rates increased from 20 percent in spring 2018 to almost 90 percent by October of that year.
  • The Chargé successfully oversaw the embassy’s First- and Second-Tour employee development program for five officers and specialists, as directed by 3 FAM 2242.4. Participants commented favorably on the Chargé’s involvement in the program.

Oh, Yow! Sections

Via reactiongifs.com

Lengthy Gaps in Key Leadership Positions Hampered Operations

Embassy Nassau faced significant operational challenges due to lengthy staffing gaps in three key leadership positions: ambassador, DCM, and management officer. The embassy had been without a permanent, confirmed ambassador since November 2011, when the incumbent, a political appointee, resigned. Her replacement was never confirmed, and, at the time of the inspection, the current nominee had been awaiting confirmation since 2017. As a result, three different long-term Chargés have led the embassy since 2011. The current Chargé arrived in March 2018. Additionally, because the embassy’s DCMs have served as Chargé, it has also had a series of acting DCMs. The current acting DCM arrived in June 2016 as the INL Director and assumed the collateral duties of acting DCM in June 2018. As a result, like previous acting DCMs, she shouldered two sets of responsibilities. Finally, due to a series of curtailments in the management officer position, from 2014 to September 2018, the management section had relied on nine temporary duty officers as well as support from the Florida Regional Center.

OIG found that the lack of consistent leadership in the ambassador, DCM, and management officer positions, combined with a series of section heads covering two positions at once for long periods of time, led to serious internal control deficiencies and morale issues, as detailed later in this report. The newly assigned Management Officer arrived in September 2018 and started addressing the embassy’s internal control deficiencies, lack of procedures, and outdated policies. However, the current Front Office structure continued to place undue burdens on both the Chargé and the acting DCM, making it impossible for them to perform all of their required functions.

Internal control deficiencies

During the inspection, OIG identified numerous internal control deficiencies and vulnerabilities in the Management and Information Management Sections. The lengthy staffing gaps in key leadership positions exacerbated many of these issues, particularly those detailed in the Resource Management section of this report.

Management Section operations and oversight suffered as a result of staffing gaps due to two previous curtailments in the management officer position. Since 2014, the embassy had relied on a succession of nine temporary-duty management officers. Additionally, from 2014 to 2018, both the embassy and the management support structure at the Florida Regional Center experienced high turnover of staff.

Embassy Nassau did not have internal controls in place to ensure maintenance and repair charges for its vehicle fleet were properly recorded and monitored, increasing the risk of fraud. OIG’s review of maintenance logs and procurement orders found that in FY 2017 and FY 2018, the embassy spent $244,533 on maintenance and repairs but did not keep records to document that the work was necessary or was actually completed.

INL’s $17.8 million foreign assistance with no formal evaluation

INL has supported Bahamian law enforcement since 1978, including committing $17.8 million in foreign assistance since 2010. […] INL Nassau lacked appropriate metrics to monitor progress for its four law enforcement and judicial assistance projects. Specifically, OIG found that project metrics had not been updated since at least 2014 and were outdated. Furthermore, INL Nassau did not formally evaluate project progress on a quarterly basis, as required by INL guidance.7 INL Nassau told OIG that it informally reported project progress on a quarterly basis but was unaware of the requirement to formally track and monitor project progress against established metrics. Without current metrics for its projects, the embassy cannot measure progress and performance against the embassy’s ICS goals and INL’s strategic planning objectives.

Intranet woes, and WHA the hey?

Embassy Nassau’s intranet network faced critical processing delays and frequent variations in processing speed due to internal IT infrastructure issues. The May 2017 Bureau of Diplomatic Security CSA report also identified this severe network performance deficiency and recommended that the embassy work with the Department and the Regional Information Management Center in Ft. Lauderdale to resolve the issue. In August 2017, a regional center network technician performed a limited service repair to the network infrastructure but did not complete all needed repairs. Embassy staff told OIG that despite repeated embassy requests, WHA had yet to provide the additional Regional Information Management Center technical support to complete the work.

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U.S. Consulate General Istanbul: Post On Evacuation Status With a “No Curtailment” Policy?

Posted: 1:49 am ET
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In October 2016, the State Department updated its Travel Warning for Turkey to announce the mandatory departure of family members of employees assigned to the Consulate General in Istanbul. The announcement says that the Department of State made this decision “based on security information indicating extremist groups are continuing aggressive efforts to attack U.S. citizens in areas of Istanbul where they reside or frequent” but adds that “the Consulate General remains open and fully staffed.”

The mandatory evacuation order issued in October meant that family members departed Turkey for temporary housing typically in the Washington, D.C. area without their household effects or personal vehicles. And like all posts on mandatory evacuation, the children had to be pulled out from their schools and temporarily enrolled in local schools in the DC area. We are not sure how many family members were evacuated from post but the last data we’ve seen indicates that USCG Istanbul has approximately 80 direct-hire US employees.

By law, an evacuation cannot last longer than 180 days so after the Under Secretary of State for Management (“M”) approves the evacuation status for post (authorized or ordered), the 180-day clock “begins ticking”. The order can be lifted at any time but if family members are not allowed to return to post, and no reassignment decision has been reached, the post status could change to “unaccompanied”.  For those not in the FS, that means, family members will not be allowed to return to post and incoming employees will no longer be allowed to bring their family members to their diplomatic assignment.

The latest evacuation order for USCG Istanbul could potentially last until April 2017 unless terminated earlier, or could be extended with a new order. Note that a previous evacuation order for US Mission Turkey was terminated in September 2016 and about five weeks later, the current evacuation order was issued. Who would have thought that Istanbul would become more restrictive than say, Beirut, where employees can still bring adult family members to post?

In any case, we understand that US Mission Turkey’s DCM had a meeting recently with the staff to let them know that post and HR/EX had agreed to halt all curtailments. Apparently, employees were told they cannot leave post until they have incoming replacements. But see — if they’re not allowed to send in their requests, or if the jobs of the curtailing employees are not listed anywhere, how will folks know about these job vacancies?  How will incoming replacements come about?  We understand that the hold placed on all curtailments apparently has “no stated expiration.”

We asked the State Department about this “no curtailment” decree specific to USCG Istanbul. Below is the full official response we received:

We cannot comment on the status of individual requests, but we can confirm that it is incorrect that a “no curtailments” policy is in effect in Mission Turkey. The Department adjudicates curtailment requests on a case by case basis, in line with established regulations and procedures. In doing so, we take into account the well-being and the individual circumstances of our employees and their family members, as well as the need to ensure sufficient staffing to undertake the important work of our diplomatic posts.

We should note that we did not inquire about individual curtailments; and our question was specific to Istanbul, and did not include Ankara or Adana. You are welcome to interpret “Mission Turkey” in the most convenient way, of course.

We’ve learned that this is not the first instance of a decree issued on specific posts. In one NEA post, the Front Office reportedly made it known that it “would not accept” curtailment requests until further down the “ordered departure” road.  During the Ebola outbreak in West Africa, the Director General was also reportedly asked to implement a policy that no curtailment requests from those affected posts would be allowed until senior management decided it was “appropriate.”

We can see where the State Department is coming from; it certainly would not like to see mass curtailments from staffers but  — there is no authority in the books that prohibit curtailment requests. And as somebody familiar with the bureau puts it, “HR knows this damn well.”  

Curtailment is the shortening of an employee’s tour of duty from his or her assignment.  It may include the employee’s immediate departure from a bureau or post.  The statutory authority for curtailment is found in the Foreign Service Act of 1980.

In the Foreign Affairs Manual, 3 FAM 2443.1 allows an employee assigned abroad to request curtailment of his or her tour of duty for any reason.  The regs say that the employee should submit a written request for curtailment that explains the reasons for the request to the appropriate assignment panel through his or her counseling and assignment officer. Post management must state its support for or opposition to the employee’s request.  The Foreign Affairs Manual makes clear that a curtailment is an assignment action, not a disciplinary one.

The FAM provides any employee the right to request a curtailment for any reason at any time, regardless of where the employees are serving.  It’s been pointed out to us that this does not/not mean that the assignment panel will approve the request. We understand that the panel’s decision typically depends on the argument made by the CDO (Career Development Office) at panel and whether ECS (Employee Consultation Service) strongly supports the “compassionate curtailment.”

A source familiar with the workings of the bureau observed that if post is refusing to send out the curtailment request via cable, the employee needs to connect with his/her CDO and go the DGDirect route. If necessary, employees can also go to AFSA, as there are precedence for this in prior attempts to declare no curtailment decrees at other posts under “ordered departure” or where there were outbreaks of diseases (Ebola, Zika).

Note that 3 FAM 2446 provides the Director General of the Foreign Service the authority to propose curtailment from any assignment sua sponteAccording to the FAM, the Director General may overrule the assignment panel decision to curtail or not to curtail if the Director General determines that to do so is in the best interests of the Foreign Service or the post.

Related posts:

 

 

From Someone Who Has Unfortunately Been There: Sexual Assault Trauma Triage in the Foreign Service

Posted: 1:51 am ET
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In response to our post — First Person: I am a ✂️ FSO who was ✂️ raped in ✂️… Continuing on has been ✂️ incredibly difficult…, we received the following from a Foreign Service member who does not want to be identified but sent a note that says “here are some suggestions for sexual assault trauma triage in the FS, from someone who has unfortunately been there.”  

1. Reach out to someone outside of DOS for support, like friends and family back home whose discretion you trust. There is so much shame involved in sexual assault, but you do not have to go through this alone.

2. Find a therapist (PhD preferable). Sexual assault survivors report the most improvement with Cognitive Processing Therapy (CPT) and EMDR (you’ll likely have to do this domestically). If you can’t find a CPT sexual assault specialist, try going to your closest VA hospital’s website and look for one there. Reach out to her and ask for a private practice referral for sexual assault in a military-like service. Since you’re overseas, you may be able to find a private CPT specialist who does Skype/telephone. Be prepared to pay out-of-pocket, and it won’t be cheap. And speaking of costs: CPT for sexual assault may be the most psychologically taxing thing you’ve ever done, but it is worth it. I promise.

3. Consider a medical curtailment to get yourself out of the situation immediately. The only department that I trust at DOS is MED. Fill out a MED update form, and note the questions on what should be the second page (related to PTSD). Check whichever boxes are relevant to you. You can also write down there what happened to you—something as simple as “Sexual assault at Post” will suffice. They will have a psychiatrist reach out to you—and you can request a female psychiatrist. If they don’t immediately contact you, start calling twice a day until you get what you need. Depending on your symptoms, you may qualify for a Limited Class 2, but if you need to be back in the U.S. for intensive counseling (and there is no shame in doing so, your well-being is the priority), they can work with you on getting you a Class 4 so that therapy can happen domestically.

4. FSO Friend who wrote in: I know that curtailment can seem like he wins. But this is emergency triage, and you may need to retreat to a place of safety (far away from him) until you have healed enough to decide your next steps. This is a “put on your oxygen mask before attempting to help others” level-situation. Please don’t be ashamed of curtailment if that is what you need to do for you. You are the priority right now. Please don’t tough it out and expose yourself to further harm–including the psychological trauma of being around him regularly. And please don’t suffer in silence. Out of all of the organizations at DOS that claim that they can help, I believe that MED actually can help you. Please use MED if it’s appropriate for you.

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This is one person’s suggestions based on her experience and perspective and we’re passing this along for consideration. Since the sender did not provide a return email, we have not been able to ask follow-up questions. We have to respect that this is all that she is able to share at this time. She reached out to this blog out of concern for the FSO who was raped.  We will leave this up to you to consider which of her suggestions may be worth exploring depending on what feels appropriate in your case.

Read more about Cognitive Processing Therapy (CPT) (PDF).

Read here on the Eye Movement Desensitization and Reprocessing (EMDR).

Curtailment is the shortening an employee’s tour of duty from his or her assignment.  It may include the employee’s immediate departure from a bureau or post, or from assignments in the U.S.  3 FAM 2440 says that curtailment is an assignment action, not a disciplinary one. Folks, of course, know that in real life that’s not always true.

Please note that 3 FAM 2444 allows an employee assigned within the United States to request voluntary curtailment of his or her tour of duty for any reason “by submitting the request and an explanatory memorandum to the assignments panel via his or her counseling and assignments officer. The bureau of assignment must state its support for or opposition to the employee’s request.”  What happens if one is a sexual assault victim in a domestic assignment or while on extended TDY or on training and have to go through this to get curtailed from an assignment where the perpetrator is also located? Imagine this happening to an untenured employee. What  does one write in the explanatory memo — I was raped, and I need to curtail my assignment because my attacker is right next door? How many folks will get to see that memo? Something for the new State Department task force to think about.

We should add that another FS member’s medical clearance was downgraded to a Domestic only (Class 5)  after reporting to MED.  12 FAM 210 notes that Class 5 is issued to all who have a medical condition which is incapacitating or for which specialized medical care is best obtained in the United States.  Employees or eligible family members with a Class 5 medical clearance may not be assigned outside the United States.  So right there, that’s really scary stuff for Foreign Service folks.

On November 22, the State Department directed a task force to create a new Foreign Service Manual section for sexual assault (see U/S For Management Directs Task Force to Create New Sexual Assault FAM Guidance).

 

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