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

EEOC: @StateDept Improperly Dismissed Complaint Over EEO Counseling Process

Via EEOC:
Complaint Improperly Dismissed for Raising Matter Not Brought to Attention of EEO Counselor. The Commission reversed the Agency’s dismissal of Complainant’s complaint on grounds that it raised a matter that was not brought to the attention of an EEO Counselor. In dismissing the complaint, the Agency relied on Complainant’s failure to participate in the EEO counseling process, stating that the assigned Counselor attempted to engage Complainant multiple times by email and telephone, but was unable to do so. Complainant stated, however, that he did not receive an initial or final interview or counseling to attempt to informally resolve the matter. The assigned Counselor stated that she could not engage Complainant to conduct counseling, so she issued Complainant a notice of right to file a formal complaint, which he timely did. The Commission found that, contrary to the Agency’s assertions, Complainant raised the instant issues with an EEO Counselor even though no actual counseling sessions occurred, and timely filed a formal complaint when given the opportunity to do so. The Commission noted that it is the Agency’s burden to provide evidence to support its final decisions.

Ian G. v. Dep’t of State, EEOC Appeal No. 2019005132 (Jan. 8, 2020).

At the time of events giving rise to this complaint, Complainant worked at the U.S. Agency for International Development. On May 17, 2019, Complainant filed a formal EEO complaint alleging that the Department of State (hereinafter referred to as “the Agency”)2 discriminated against him on the bases of race (Asian), sex (male), national origin (Kashmir), religion (Islam), disability (Obsessive Compulsive Disorder (OCD) and Fibromyalgia), and reprisal for prior protected EEO activity when:

1. in March and April 2019, the Agency denied Complainant reasonable accommodation for the FACT course, and

2. in April 2019, the Bureau of Diplomatic Security (BDS) and the Agency subjected Complainant to hostile work environment harassment during the FACT course. Complainant alleged that he was repeatedly subjected to inappropriate “epithets and derogatory stereotypes.”

In his EEO complaint, Complainant stated “Counseling requested but not conducted.”

In a July 9, 2019 final decision, the Agency dismissed Complainant’s complaint pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency reasoned that, “[Complainant d]id not go through EEO Counseling” because his allegations of discrimination were not first discussed with an EEO Counselor. The Agency stated that the assigned Counselor attempted to engage Complainant multiple times (via email and telephone) but was unable to do so. The Agency noted that the Counselor issued the Notice of Right to File (NORF) on May 15, 2019.

The instant appeal from Complainant followed. On appeal, Complainant stated that although he initiated contact with the Agency’s EEO office on April 10, 2019, no counseling or initial/final interview took place and he informed the EEO Counselor that he would be overseas for an extended period. Also, Complainant stated that he learned that the Counselor issued a counseling report on May 17 and June 12, 2019, and the Agency only provided him the second report initially. Further, Complainant stated that the Agency misapplied the standard for dismissal under 29 C.F.R. § 1614.107(a)(2), and failed to conduct EEO counseling as required under federal regulations. Complainant stated that he raised his issues with an EEO Counselor in a timely manner.

The EEOC reversed the Department of State’s final decision dismissing the instant complaint and remanded the matter to the Agency for further processing consistent with the decision it issued. Read more here.

EEOC Case: “Complainant maintained his interpersonal skills were exceptional”

Posted: 1:52 am ET
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At the time of events giving rise to this complaint, the unnamed Complainant in this EEOC case worked as an entry-level Vice- Consul at the U.S. Consulate General in Karachi, Pakistan. The EEOC decision notes that the Complainant commenced duty in Karachi on July 18, 2011, and was involuntarily curtailed from post on April 7, 2012.

According to the EEOC, on September 24, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 13, 2013, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq.

On January 24, 2017, the EEOC affirmed the State Department’s determination that no discrimination occurred.

Excerpt via eeoc.gov (PDF):

The Karachi Consul General stated that the curtailment was justified because Complainant was repeatedly insubordinate with his supervisors and he refused to accept feedback and/or guidance. The Consul General noted that making fun of a Foreign Service National was among the inappropriate actions taken by Complainant. The Consul General characterized Complainant as a very disturbing presence in the office. The Embassy Islamabad Consul General stated that he decided to request Complainant’s involuntary curtailment and that he sought concurrence of the Deputy Chief of Mission and the Ambassador. The Islamabad Consul General noted that Complainant refused to seek voluntary curtailment and took no responsibility for his actions. According to the Islamabad Consul General, Complainant’s repeated insubordination and aggressive behavior toward the consular managers affected their ability to manage and their emotional stability. The Ambassador’s cable to Washington requesting the involuntary curtailment stated that during and after each counseling session Complainant threatened he would file a grievance or a lawsuit against his supervisors.
[…]
With respect to his Employee Evaluation Report (EER), Complainant argued that it should have reflected an excellent job performance. The Supervisor, as Complainant’s rating officer, stated that she did not have a problem with Complainant’s substantive work performance. The Supervisor commended Complainant’s intellectual skills and work ethic. However, the Supervisor remarked that the conduct issues were significant and she could not recommend that Complainant be tenured based on his conduct while she supervised him. The Supervisor noted that Complainant informed her that he would not change his behavior.

Complainant maintained that his interpersonal skills were exceptional as reflected in his reviews from his prior posts. The Supervisor, however, asserted that Complainant did not display an ability to work in a team-oriented, collaborative approach with his colleagues. The Supervisor noted that Complainant continuously made disparaging comments about one of his colleagues and suggested on several occasions that this coworker be fired. The Karachi Consul General, as Complainant’s review officer, commented that while Complainant is a very intelligent and articulate officer, his inability to compromise and accept supervisory guidance make it unlikely he could succeed in the Foreign Service over the duration of a normal career. The Karachi Consul General explained that Karachi is a post where there are ongoing threats and they work in a constant state of crisis. The Karachi Consul General asserted that teamwork, sensitivity, and flexibility are critical to maintaining morale and assisting others in dealing with the stress.
[….]
The Agency determined that Complainant failed to establish pretext with respect to both the Letter of Admonishment and the involuntary curtailment. The Agency noted that Complainant stated in his affidavit that he did not believe his race and age were factors in the Letter of Admonishment. With respect to Complainant’s claim of age discrimination as to the involuntary curtailment, the Agency rejected that argument noting that three of the four management officials named in the complaint are substantially older than Complainant. As to Complainant’s claim of reprisal, the Agency discerned no persuasive argument from Complainant to challenge its reasons for the issuance of the Letter of Admonishment and the involuntary curtailment. In terms of the Employee Evaluation Report, the Agency stated that it sees no reason to disbelieve the consistent criticism by three officers in the chain of command regarding Complainant’s interpersonal skills.
[…]
Complainant stated that the Karachi Consul General referred to him as Señor. Complainant explained that this reference could be perceived as demeaning his standing in the community and stated that after some time he objected to the term. With regard to the Consul, Complainant claimed that he sought to elicit much information from him that was not directed toward a professional goal. Complainant maintained that the Consul was intimidated and threatened by his experience and made him feel uncomfortable by frequently asking him why he was in Karachi. According to the Supervisor, when she asked Complainant for examples of harassment by the Consul, Complainant stated that the Consul watched him too much and asked him why he joined the Foreign Service. The Karachi Consul General denied that Complainant raised a hostile work environment with him but acknowledged that Complainant was unhappy with Consular Section operations. The Karachi Consul General stated that he urged Complainant to make efforts to get along with management but that Complainant responded he had the ability to operate the Section more effectively than management. The Embassy Islamabad Consul General stated that he believed Complainant created a hostile work environment for his bosses and was not himself suffering from a hostile work environment.

The Agency noted that only one witness recommended by Complainant supported his description of the work environment. This witness stated that after Complainant spoke with the Deputy Chief Mission on March 12, 2012, the Supervisor began to question him to a larger extent than the other officers and otherwise shunned him. According to this witness, the Supervisor created a hostile work environment but not based on Complainant’s race or age. The witness stated that all of the Foreign Service Officers in the Section told him that the Supervisor mismanaged the Section. With regard to Complainant’s style of interpersonal communication, the witness stated that some of Complainant’s peers found him abrasive and unnecessarily argumentative. The witness added that Complainant was sometimes abrasive with his supervisors.
[…]
Complainant has not submitted persuasive evidence that the Agency’s scrutiny of various aspects of his work, the comments at issue, and his leave were greater than that of any of his colleagues or that the scrutiny was based on his age, race, or prior EEO activity. It appears that Complainant’s Supervisor may have had problems managing the Section, but those difficulties and her treatment of Complainant were not attributable to an impermissible discriminatory motivation. Complainant in turn engaged in interpersonal communication that was abrasive and unnecessarily argumentative with both management officials and coworkers, and the Embassy Islamabad Consul General believed that Complainant created a hostile work environment for management officials in Karachi. We find that Complainant did not establish that he was subjected to a legally hostile work environment based on his race, age or in reprisal for his protected EEO activity.

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